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EXHIBIT 4.4
Draft of 09/09/97
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MEDPARTNERS, INC., AS ISSUER
AND
PNC BANK, KENTUCKY, INC., AS TRUSTEE
--------------
INDENTURE
DATED AS OF SEPTEMBER ___, 1997
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$350,000,000
_____% SENIOR SUBORDINATED NOTES DUE 2000
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MEDPARTNERS, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939;
Trust Indenture Indenture
Act Section Section
--------------- ---------
310 (a) (1) ............................................................. 609
310 (a) (2) ............................................................. 609
(a) (3) ............................................................. Not Applicable
(a) (4) ............................................................. Not Applicable
(b) ............................................................. 608, 610
311 (a) ............................................................. 613
(b) ............................................................. 613
312 (a) ............................................................. 701, 702 (1)
(b) ............................................................. 702 (2)
(c) ............................................................. 702 (3)
313 (a) ............................................................. 703
(b) ............................................................. 703
(c) ............................................................. 703
(d) ............................................................. 703
314 (a) ............................................................. 704
(a) (4) ............................................................. 1004
(b) ............................................................. Not Applicable
(c) (1) ............................................................. 102
(c) (2) ............................................................. 102
(c) (3) ............................................................. Not Applicable
(d) ............................................................. Not Applicable
(e) ............................................................. 102
315 (a) ............................................................. 601
(b) ............................................................. 602
(c) ............................................................. 601
(d) ............................................................. 601
(e) ............................................................. 514
316 (a) (1) (A) ............................................................. 502, 512
(a) (1) (B) ............................................................. 513
(a) (2) ............................................................. Not Applicable
(b) ............................................................. 508
(c) ............................................................. 104 (3)
317 (a) (1) ............................................................. 503
(a) (2) ............................................................. 504
(b) ............................................................. 1003
318 (a) ............................................................. 107
NOTE: THIS RECONCILIATION AND TIE SHALL NOT, FOR
ANY PURPOSE, BE DEEMED TO BE A PART OF THE INDENTURE.
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TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY..................................................................................1
ARTICLE I................................................................................................1
SECTION 1.01. Definitions............................................................1
SECTION 1.02. Compliance Certificates and Opinions...................................9
SECTION 1.03. Form of Documents Delivered to Trustee.................................9
SECTION 1.04. Acts of Holders; Record Dates.........................................10
SECTION 1.05. Notices, Etc., to Trustee and Company.................................11
SECTION 1.06. Notice to Holders; Waiver.............................................11
SECTION 1.07. Conflict with Trust Indenture Act.....................................12
SECTION 1.08. Effect of Headings and Table of Contents..............................12
SECTION 1.09. Successors and Assigns................................................12
SECTION 1.10. Separability Clause...................................................12
SECTION 1.11. Benefits of Indenture.................................................12
SECTION 1.12. Governing Law.........................................................12
SECTION 1.13. Legal Holidays........................................................13
SECTION 1.14. No Security Interest Created..........................................13
SECTION 1.15. Limitation on Individual Liability....................................13
ARTICLE II..............................................................................................14
SECTION 2.01. Forms Generally.......................................................14
SECTION 2.02. Form of Face of Security..............................................14
SECTION 2.03. Form of Reverse of Security...........................................16
SECTION 2.04. Form of Trustee's Certificate of Authentication.......................18
SECTION 2.05. Global Securities.....................................................18
ARTICLE III.............................................................................................19
SECTION 3.01. Title and Terms.......................................................19
SECTION 3.02. Denominations.........................................................20
SECTION 3.03. Execution, Authentication, Delivery and Dating........................20
SECTION 3.04. Temporary Securities..................................................21
SECTION 3.05. Registration, Registration of Transfer and Exchange...................21
SECTION 3.06. Xxxxxxxxx, Destroyed, Lost and Stolen Securities......................23
SECTION 3.07. Payment of Interest; Interest Rights Preserved........................24
SECTION 3.08. Persons Deemed Owners.................................................25
SECTION 3.09. Cancellation..........................................................25
SECTION 3.10. Computation of Interest...............................................25
ARTICLE IV..............................................................................................26
SECTION 4.01. Satisfaction and Discharge of Indenture...............................26
SECTION 4.02. Application of Trust Money............................................27
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ARTICLE V...............................................................................................27
SECTION 5.01. Events of Default.....................................................27
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment....................29
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................................30
SECTION 5.04. Trustee May File Proofs of Claim......................................31
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities...........31
SECTION 5.06. Application of Money Collected........................................31
SECTION 5.07. Limitation on Suits...................................................32
SECTION 5.08. Unconditional Right of Holders to Receive Principal and
Interest..............................................................33
SECTION 5.09. Restoration of Rights and Remedies....................................33
SECTION 5.10. Rights and Remedies Cumulative........................................33
SECTION 5.11. Delay or Omission Not Waiver..........................................33
SECTION 5.12. Control By Holders....................................................33
SECTION 5.13. Waiver of Past Defaults...............................................34
SECTION 5.14. Undertaking for Costs.................................................34
SECTION 5.15. Waiver of Stay or Extension Laws......................................35
ARTICLE VI..............................................................................................35
SECTION 6.01. Certain Duties and Responsibilities...................................35
SECTION 6.02. Notice of Defaults....................................................35
SECTION 6.03. Certain Rights of Trustee.............................................35
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities................36
SECTION 6.05. May Hold Securities...................................................37
SECTION 6.06. Money Held in Trust...................................................37
SECTION 6.07. Compensation and Reimbursement........................................37
SECTION 6.08. Disqualification; Conflicting Interests...............................38
SECTION 6.09. Corporate Trustee Required; Eligibility...............................38
SECTION 6.10. Resignation and Removal; Appointment of Successor.....................38
SECTION 6.11. Acceptance of Appointment by Successor................................40
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business...........40
SECTION 6.13. Preferential Collection of Claims Against Company.....................40
SECTION 6.14. Appointment of Authenticating Agent...................................41
ARTICLE VII.............................................................................................43
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.............43
SECTION 7.02. Preservation of Information; Communications to Holders................43
SECTION 7.03. Reports by Trustee....................................................44
SECTION 7.04. Reports by Company....................................................44
ARTICLE VIII............................................................................................44
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms..................44
SECTION 8.02. Successor Substituted.................................................45
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ARTICLE IX..............................................................................................45
SECTION 9.01. Supplemental Indentures Without Consent of Holders....................45
SECTION 9.02. Supplemental Indentures with Consent of Holders.......................46
SECTION 9.03. Execution of Supplemental Indentures..................................47
SECTION 9.04. Effect of Supplemental Indentures.....................................47
SECTION 9.05. Conformity with Trust Indenture Act...................................47
SECTION 9.06. Reference in Securities to Supplemental Indentures....................47
SECTION 9.07. Notice of Supplemental Indenture......................................47
ARTICLE X...............................................................................................48
SECTION 10.01. Payment of Principal and Interest.....................................48
SECTION 10.02. Maintenance of Office or Agency.......................................48
SECTION 10.03. Money for Security Payments to Be Held in Trust.......................48
SECTION 10.04. Statement by Officers as to Default...................................49
SECTION 10.05. Existence.............................................................50
SECTION 10.06. Maintenance of Properties.............................................50
SECTION 10.07. Payment of Taxes and Other Claims.....................................50
SECTION 10.08. Maintenance of Insurance..............................................51
SECTION 10.09. Restrictions on Sale and Leaseback Transactions.......................51
SECTION 10.10. Restrictions on Subsidiary Indebtedness...............................51
SECTION 10.11. Waiver of Certain Covenants...........................................53
ARTICLE XI..............................................................................................53
SECTION 11.01. Company's Option to Effect Defeasance or Covenant Defeasance..........53
SECTION 11.02. Defeasance and Discharge..............................................54
SECTION 11.03. Covenant Defeasance...................................................54
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance.......................54
SECTION 11.05. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.......................................56
SECTION 11.06. Reinstatement.........................................................57
ARTICLE XII.............................................................................................57
SECTION 12.01. Agreement that Securities to be Subordinate...........................57
SECTION 12.02. Limitation During Certain Defaults on Senior Indebtedness.............58
SECTION 12.03. Priority of Senior Indebtedness.......................................59
SECTION 12.04. Payment to Holders of Senior Indebtedness of Certain Amounts
Received by Holders of Securities.....................................59
SECTION 12.05. Subrogation...........................................................60
SECTION 12.06. Reliance by Senior Indebtedness on Subordination Provisions...........60
SECTION 12.07. Certain Payments and Credits Permitted................................61
SECTION 12.08. Subordination Not to be Prejudiced by Certain Acts....................61
SECTION 12.09. Trustee Authorized to Effectuate Subordination........................61
SECTION 12.10. Trustee's Right regarding Senior Indebtedness Held by it..............61
SECTION 12.11. Notice to Trustee of Specified Events.................................62
SECTION 12.12. Trustee and Paying Agents Not Chargeable With Knowledge until
Notice................................................................63
SECTION 12.13. Trustee Not Fiduciary for Holders of Senior Indebtedness..............63
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INDENTURE, dated as of September ___, 1997, between
MEDPARTNERS, INC., a corporation duly organized and existing under the laws of
the State of Delaware (the "Company"), having its principal office at 0000
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxx, XX 00000 and PNC Bank, Kentucky, Inc.,
a Kentucky banking corporation, as Trustee, having its principal office at 000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
_____% Senior Subordinated Notes due 2000 (the "Securities") of substantially
the tenor and amount hereinafter set forth, and to provide therefor the Company
has duly authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
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(4) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning
specified in Section 1.04.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" in respect of a Sale and Leaseback
Transaction means, at the time of determination, the then present value
(discounted at the actual rate of interest of such transaction) of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such Sale and Leaseback Transaction (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended).
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Securities.
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (i) the sum of
the products of the numbers of years from the date of determination to the
dates of each successive scheduled principal payment of such Indebtedness
multiplied by the amount of such principal payment by (ii) the sum of all such
principal payments.
"Bank Credit Agreement" means the Credit Agreement, dated as of
September 5, 1996 and as amended by Amendment No.1 and Amendment No. 2 thereto,
by and among MedPartners, Inc. and Nationsbank, National Association (South),
as administrative agent for a group of lenders, as such agreement may be
amended, renewed, extended, substituted, refinanced, restructured, replaced or
supplemented or otherwise modified from time to time (including, without
limitation, any successive renewals, extensions, substitutions, refinancings,
restructurings, replacements or supplementations or other modifications of the
foregoing).
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board to which the powers of
that board have been lawfully delegated.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification.
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"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in The City of New
York or the State of Alabama are authorized or obligated by law, regulation or
executive order to close.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time including
the provisions of FAS No. 13 and any successor thereof.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary.
"Consolidated Net Worth" means the excess of (i) the
consolidated net book value of the assets of the Company and its subsidiaries
after all appropriate deductions in accordance with GAAP as in effect on the
date of the Indenture (including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization) less (ii) the
consolidated liabilities (including tax and other proper accruals, but
excluding, if applicable, the accumulated postretirement benefit obligation
resulting from the application of the provisions of FAS No. 106 "Employers'
Accounting for Postretirement Benefits Other than Pensions") of the Company and
its Subsidiaries, in each case computed and consolidated in accordance with
GAAP in effect on the date of the Indenture.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee at which, at any particular time, its corporate trust
business shall be administered, which office, at the date hereof is located at
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate Trust
Department.
"Corporation" means a corporation, association, company,
joint-stock company, limited liability company or business trust.
"Covenant Defeasance" has the meaning specified in Section
11.03.
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"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 11.02.
"Depositary" means, with respect to Securities issuable or
issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities, which Depositary initially shall be The
Depository Trust Company, a limited-purpose trust company organized under the
Banking Law of the State of New York ("DTC").
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder.
"GAAP" means, unless otherwise specified in this Indenture,
such accounting principles as are generally accepted in the United States as of
the date of the relevant calculation.
"Global Security" means a Security that evidences all or part
of the Securities, is registered in the name of the Depositary or its nominee
and bears the legend set forth in Section 2.05.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" with respect to any Person means, at any time,
without duplication, (i) any debt (a) for money borrowed, or (b) evidenced by a
bond, note, debenture, or similar instrument for the payment of which such
Person is responsible or liable, or (c) which is a direct or indirect
obligation which arises as a result of banker's acceptances; (ii) any
Off-Balance Sheet Liability; (iii) any debt of others described in the
preceding clause (i) which such Person has guaranteed or for which it is
otherwise directly liable; (iv) the obligation of such Person as lessee under
any lease of property which is reflected on such Person's balance sheet as a
capitalized lease; (v) to the extent not otherwise included in this definition,
net obligations under any Rate Hedging Obligations; and (vi) any deferral,
amendment, renewal, extension, supplement or refunding of any liability of the
kind described in any of the preceding clauses (i) through (v); provided,
however, that, in computing the Indebtedness of any Person, there shall be
excluded any particular Indebtedness if, upon or prior to the maturity thereof,
there shall have been deposited with a depository in trust money (or evidence
of Indebtedness if permitted by the instrument creating such Indebtedness) in
the necessary amount to pay, redeem or satisfy such Indebtedness as it becomes
due, and the amount so deposited shall not be included in any computation of
the assets of such Person.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of
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this instrument and any such supplemental indenture, the terms of the
Securities and the provisions of the Trust Indenture Act that are deemed to be
a part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, or otherwise.
"Off-Balance Sheet Liabilities" means, with respect to any
Person, (i) any repurchase obligation or liability of such Person with respect
to accounts or notes receivable sold by such Person, (ii) the face amount of
accounts receivable pursuant to a Permitted Receivables Securitization, (iii)
any repurchase obligation or liability of such Person with respect to property
leased by such Person as lessee, (iv) obligations arising with respect to any
other transaction which is the functional equivalent of or takes the place of
borrowing but which does not constitute a liability on the consolidated balance
sheets of such Person excluding therefrom operating leases which do not require
payment by or due from such Person: (a) at the scheduled termination of such
operating lease, (b) pursuant to a required purchase by such Person of the
leased property, or (c) under any guarantee by such person of the value of the
leased property, or (v) net liabilities under any Rate Hedging Obligations.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company. One of the officers signing an Officers'
Certificate given pursuant to Section 10.04 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation:
(b) Securities for whose payment money in the necessary amount
has been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company (if
the Company shall act as its own Paying Agent) for the Holders of such
Securities;
(c) Securities as to which Defeasance has been effected
pursuant to
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Section 11.02; and
(d) Securities which have been paid pursuant to Section 3.06 or
in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser in
whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
knows to be 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 Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company.
"Permitted Receivables Securitization" means limited recourse
or non-recourse sales and assignments of accounts receivable of a Person to one
or more entities, the proceeds of which shall be made available to such Person;
provided, however, that the maximum face amount of accounts receivable which
may be sold is $100,000,000 and the minimum price which shall be paid for
receivables is 70% of the face amount thereof; provided, further, that
notwithstanding the immediately preceding proviso the maximum face amount of
accounts receivable which may be sold and the minimum price which shall be paid
for receivables shall be increased or decreased to such amount and percentage
as is permissible under the Bank Credit Agreement.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Purchase Money Indebtedness" means Indebtedness incurred to
finance
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all or any part of the purchase price or cost of construction of improvements
in respect of property or assets acquired by a Person after the date of the
Indenture and incurred prior to, at the time of, or within 90 days after, the
acquisition of any such property or assets or the completion of any such
construction or improvements.
"Rate Hedging Obligations" means any and all obligations of any
Person, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitution therefor), under (i) any and all
agreements, devices or arrangements designed to protect at least one of the
parties thereto from the fluctuations of interest rates, exchange rates or
forward rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts, warrants and those commonly known as interest rate "swap"
agreements; and (ii) any and all cancellations, buybacks, reversals,
terminations or assignments of any of the foregoing.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the _____________ or ____________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee,
means any officer of the Trustee with direct responsibility for the
administration of this Indenture and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Sale and Leaseback Transaction" has the meaning specified in
Section 10.09.
"Securities" means the ____% Senior Subordinated Notes due 2000
of the Company authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.05.
"Senior Indebtedness" means (a) all indebtedness of the Company
under the Bank Credit Agreement, and any successor credit facilities thereto,
whether outstanding on the date of execution of this Indenture or thereafter
created, incurred or assumed, (b) the Company's 7-3/8% Senior Notes due 2006
(the "1996 Notes") issued pursuant to that certain Indenture dated as of
October 8, 1996 between the Company and The First National Bank of Chicago, as
trustee, (c) any promissory notes (other than any referred to in the foregoing
clauses (a) and (b)) issued by the Company pursuant to any agreement between
the Company and any bank or banks and any commercial paper issued by the
Company, (d) all indebtedness incurred by the Company after the date of this
Indenture for money borrowed which is, in the discretion of the Company,
specifically designated by the Company as superior to subordinated debt (senior
debt) of the Company
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in the instruments evidencing said indebtedness at the time of the issuance
thereof, (e) all indebtedness of the Company in addition to the indebtedness
referred to in the preceding clauses (a) through (d) for money borrowed from or
guaranteed to persons, firms or corporations which engage in lending money,
including, without limitation, banks, trust companies, insurance companies and
other financing institutions and charitable trusts, pension trusts and other
investing organizations, evidenced by notes or similar obligations unless such
indebtedness shall, in the instrument evidencing the same, be specifically
designated as not being superior to the Securities and (f) any amendments,
modifications, supplements, deferrals, renewals or extensions of any such
Senior Indebtedness.
"Significant Subsidiary" has the meaning ascribed to it under
Regulation C promulgated under the Securities Act of 1933, as amended.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment
of interest is due and payable.
"Subsidiary" means any corporation, partnership, association or
other business entity of which more than 50% of the outstanding voting stock is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock (or a similar interest)
which ordinarily has voting power for the election of directors, managers or
trustees, whether at all times or only so long as no senior class of stock (or
similar interest) has such voting power by reason of any contingency.
"Trustee" means the Person named as such in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligation" has the meaning specified in
Section 11.04.
"Vice President," when used with respect to the Company 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 "vice president."
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SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he 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
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company,
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unless such counsel knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by 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 and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(2) The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may be proved in
any manner which the Trustee deems sufficient.
(3) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other Act, or to vote on
any Act, authorized or permitted to be given or taken by Holders. If not set by
the Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 7.01) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(4) The ownership of Securities shall be proved by the
Security Register.
(5) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
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SECTION 1.05. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Trustee
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Holders and the Company by the Trustee, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
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 regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
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SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under the Trust Indenture
Act to be a part of and govern this Indenture, the latter provision shall
control. If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of laws as applied in such state.
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SECTION 1.13. Legal Holidays.
In any case where any Interest Payment Date or Stated Maturity
of any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) 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 Interest Payment
Date or at the Stated Maturity; provided that no interest shall accrue for the
period from and after such Interest Payment Date or Stated Maturity, as the
case may be.
SECTION 1.14. No Security Interest Created.
Except as provided in Section 6.07, nothing in this Indenture
or in the Securities, express or implied, shall be construed to create or
constitute a security interest under the Uniform Commercial Code or similar
legislation, as now or hereafter enacted and in effect in any jurisdiction
where property of the Company or its Subsidiaries is or may be located.
SECTION 1.15. Limitation on Individual Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or any successor Person, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by, the incorporators, stockholders,
officers or directors, as such, of the Company or any successor Person, or any
of them, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any Security or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of such Security.
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ARTICLE II
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificates of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Securities may be listed, all as determined by
the officers executing such Securities, as evidenced by their execution of such
Securities. Unless required by the Depositary, any securities exchange on which
the Securities may be listed or any rule, regulation or law, Securities issued
in the form of Global Securities need not be printed, lithographed or engraved
on steel engraved borders, but shall be in such form as is acceptable to the
Depositary.
SECTION 2.02. Form of Face of Security.
The form of the face of the Global Securities shall be as set
forth below and include the legend(s) set forth in Section 2.05 (if a Security
is issued in definitive form, the form of such definitive security will be in
substantially the form of the face of the Global Security, except that the
legend(s) set forth in Section 2.05 shall be omitted):
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MEDPARTNERS, INC.
_______% Senior Subordinated Notes due 2000
No. R-
CUSIP No. _______________ $
MEDPARTNERS, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ____________, or registered
assigns, the principal sum of ___________ Dollars ($_________) on ___________,
2000 and to pay interest thereon from the date of original issuance of
Securities pursuant to the Indenture or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
____________ and ____________ in each year, commencing ____________, 1998, at
the rate of _____% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the ____________ or ____________ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities not less than
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Security will
be made (i) in respect of Securities held of record by the Depositary or its
nominee in same day funds and (ii) in respect of Securities held of record by
Holders other than the Depositary or its nominee at the Corporate Trust Office
or at such other office or agency of the Company maintained for that purpose
pursuant to the Indenture, in each case, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest in respect of Securities held of record by Holders other
than the Depositary or its nominee may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
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Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated:
MEDPARTNERS, INC.
By:
-----------------------
Attest:
------------------
SECTION 2.03. Form of Reverse of Security.
The form of the reverse of the Securities shall be as set forth
below:
This Security is one of a duly authorized issue of securities
of the Company designated as its _____% Senior Subordinated Notes due 2000
(herein called the "Securities"), limited in aggregate principal amount to
$350,000,000, issued and to be issued under an Indenture, dated as of September
___, 1997 (herein called the "Indenture"), between the Company and PNC Bank,
Kentucky, Inc., as Trustee (herein called the "Trustee", which term includes
any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
This Security is not redeemable in whole or in part at any time
prior to the Stated Maturity of its principal amount.
The Indenture contains provisions for defeasance of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
by the Company with certain conditions set forth in the Indenture.
The Indenture contains certain covenants with respect to, among
other things, the following matters: (i) restrictions on sale and leaseback
transactions,
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(ii) restrictions on additional subsidiary indebtedness, and (iii) restrictions
on consolidations, mergers and sales of all or substantially all of the assets
of the Company. These covenants are subject to important exceptions and
qualifications.
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided, and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of at least 50% in aggregate principal amount of the Securities
at the time Outstanding, and, under certain limited circumstances, by the
Company and the Trustee without the consent of the Holders. The Indenture also
contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Securities at the time Outstanding, on behalf
of the Holders of all the Securities, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
Corporate Trust Office or at such other office or agency of the Company
maintained for that purpose pursuant to the Indenture duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
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The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture. The
Company will furnish to any Holder upon written request and without charge a
copy of the Indenture.
SECTION 2.04. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities referred to in the
within-mentioned Indenture.
PNC BANK, KENTUCKY, INC.,
as Trustee
By:
------------------------
Authorized Officer
SECTION 2.05. Global Securities.
Except as provided in Section 3.05, the Securities shall be
issued in the form of one or more Global Securities. Every Global Security
authenticated and delivered hereunder shall bear a legend in substantially the
following form, in capital letters and bold-face type:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART
FOR A
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SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A
NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
If the Depositary is the Depository Trust Company, the Global
Security authenticated and delivered hereunder shall also bear a legend in
substantially the following form, in capital letters and bold-face type:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED SIGNATORY
OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR 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.
ARTICLE III
THE SECURITIES
SECTION 3.01. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $350,000,000,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section
3.04, 3.05, 3.06 or 9.06.
The Securities shall be known and designated as the "_____%
Senior Subordinated Notes due 2000" of the Company. Their Stated Maturity shall
be ____________, 2000 and they shall bear interest at the rate of _____% per
annum, from the date of original issuance of Securities pursuant to this
Indenture or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable semi-annually on
____________ and ____________, commencing ____________, 1998, to the Person in
whose name the Security or any Predecessor Security is registered at the close
of business on the ____________ or the ____________ next preceding such
Interest Payment Date, until the principal thereof is paid or made available
for payment.
The principal of and interest on the Securities shall be
payable (i) in respect of Securities held of record by the Depositary or its
nominee in same day funds
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and (ii) in respect of Securities held of record by Holders other than the
Depositary or its nominee at the Corporate Trust Office or at such other office
or agency maintained by the Company for such purpose pursuant to this
Indenture; provided, however, that at the option of the Company, payment of
interest to Holders of record other than the Depositary or its nominee may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.
The Securities, in whole or any specified part, shall be
defeasible pursuant to Section 11.02 or Section 11.03 or both such Sections.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article XII.
Except as may be otherwise provided for by Section 3.05, the
Securities shall be issuable in the form of one or more Global Securities,
shall bear the legend specified in Section 2.05 and shall be registered in the
name of The Depository Trust Company or its nominee, as Depositary.
SECTION 3.02. Denominations.
The Securities shall be issuable only in fully registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, one of its Vice Chairmen, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities as provided in this Indenture and not otherwise. The aggregate
principal amount of Securities Outstanding at any time may not exceed
$350,000,000 except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities pursuant to Section 3.04, 305, 306 or 906.
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Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. The Trustee may appoint an Authenticating Agent pursuant to the
terms of Section 6.14.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities. Every such temporary Security shall be executed
by the Company and shall be authenticated and delivered by the Trustee upon the
same conditions and in substantially the same manner, and with the same effect,
as the definitive Security in lieu of which it is issued.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities may be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 10.02, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 10.02 being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at
an office or agency of the Company designated pursuant to Section 10.02 for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized
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denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denominations and of a like aggregate
principal amount and of a like Stated Maturity and with like terms and
conditions, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04 or 9.06 not involving
any transfer.
The provisions of clauses (l), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a nominee
thereof or custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (A) such Depositary (i) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Security and
is not replaced by a successor Depositary approved by the Trustee within 90
days or (ii) at any time has ceased to be a clearing agency registered under
the Exchange Act, or (B) the Company in its sole discretion determines not to
have all of the Securities represented by a Global Security and notifies the
Trustee thereof.
(3) Subject to clause (2) above, any exchange of a Global
Security for
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other Securities may be made in whole or in part, and all Securities issued in
exchange for a Global Security or any portion thereof shall be registered in
such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section, Section
3.04, 3.06 or 9.06 or otherwise, shall be authenticated and delivered in the
form of, and shall be, a Global Security, unless such Security is registered in
the name of a Person other than the Depositary for such Global Security or a
nominee thereof.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of like tenor and principal amount and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. Payment of interest will be made (i) in respect of Securities held by
the Depositary or its nominee in same day funds and (ii) in respect of
Securities held of record by Holders other than the Depositary or its nominee
at the Corporate Trust Office or at such other office or agency of the Company
as it shall maintain for that purpose pursuant to Section 10.02, provided,
however, that, at the option of the Company, interest on any Security held of
record by Holders other than the Depositary or its nominee may be paid by
mailing checks to the addresses of the Holders thereof as such addresses appear
in the Securities Register.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause
(2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange
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on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of and (subject
to Section 3.07) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be destroyed by the Trustee and a certificate of such
destruction delivered to the Company unless the Trustee is otherwise directed
by a Company Order.
SECTION 3.10. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.06 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.03) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, and the Company, in the case of (i) or (ii), has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07,
the obligations of the Company to any Authenticating Agent under Section 6.14
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of clause (1) of this Section or if money or U.S. Government Obligations
have been deposited with the Trustee pursuant to
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Section 11.04, the obligations of the Trustee under Section 4.02 and the last
paragraph of Section 1003 shall survive.
SECTION 4.02. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.03, all money deposited with the Trustee pursuant to Section 4.01, all money
and U.S. Government Obligations deposited with the Trustee pursuant to Section
11.02 or 11.03 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 11.02 or
11.03, shall be held in trust and applied by it, in accordance with the
provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal and interest for whose payment such money has been deposited with
or received by the Trustee.
ARTICLE V
REMEDIES
SECTION 5.01. Events of Default.
"Event of Default," wherever used herein, means any one of the
following events (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):
(1) default in the payment of the principal of any Security at
its Stated Maturity; or
(2) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a period
of 30 days; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty 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 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Securities a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(4) a default in the payment of principal at maturity (subject
to any applicable grace period) of any Indebtedness for money borrowed by the
Company or any Subsidiary in an aggregate principal amount of $25,000,000 or
the acceleration of such
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Indebtedness without such acceleration having been rescinded or annulled within
a period of 30 days after there shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities a written notice specifying such default and requiring the Company
to cause such acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; provided, however, that, subject to
the provisions of Sections 6.01 and 6.02, the Trustee shall not be deemed to
have knowledge of such default unless either (A) a Responsible Officer of the
Trustee shall have actual knowledge of such default or (B) the Trustee shall
have received written notice thereof from the Company, from any Holder, from
the holder of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable federal or state law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the
Company or any Significant Subsidiary in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer or
consent seeking reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due,
or the taking of corporate action by the Company or any Significant Subsidiary
in furtherance of any such action.
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SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(5) or 501(6)) occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the principal of all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal plus any interest accrued on the Securities to the date of
declaration shall become immediately due and payable. If an Event of Default
specified in Section 5.01(5) or 5.01(6) occurs, the principal amount of all the
Securities shall automatically, and without any declaration or other action on
the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
at least 50% in principal amount of the Outstanding Securities, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due the Trustee under Section
6.07;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or
impair any right consequent thereon.
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SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of any
Security at the Stated Maturity thereof, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holders of such Securities, the
whole amount then due and payable on such Securities for principal and
interest, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and on any overdue interest, at
the rate borne by the Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid and may prosecute any such proceeding to judgment or final decree, and
may enforce the same against the Company (or any other obligor upon the
Securities) and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company (or any other obligor
upon the Securities), wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
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SECTION 5.04. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.07.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of the
Creditors' Committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and all other amounts due the Trustee under Section 6.07, be for the ratable
benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07; and
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SECOND: Subject to Article XII, to the holders of Senior
Indebtedness; and
THIRD: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
FOURTH: The balance, if any, to the Company or any other Person
or Persons determined to be entitled thereto.
SECTION 5.07. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of 50% or
more in principal amount of the Outstanding Securities; it being understood and
intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Holders, or to obtain or
to seek to obtain priority or preference over any other Holders or to enforce
any right under this Indenture, except in the manner herein provided and for
the equal and ratable benefit of all the Holders.
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SECTION 5.08. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to Section
3.07) interest on such Security on the respective Stated Maturities expressed
in such Security and to institute suit for the enforcement of any such payment
on or after such Stated Maturities, and such rights shall not be impaired
without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.06, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 5.12. Control By Holders.
The Holders of 50% or more in principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided; that
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(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of at least 50% in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any
Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company; and provided, further, that 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, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest
on any Security on or after the Stated Maturities expressed in such Security.
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SECTION 5.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability in not reasonably assured to
it. Whether or not herein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
5.01(3), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
SECTION 6.03. Certain Rights of Trustee.
Subject to the provision of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
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(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney;
(7) the Trustee shall not be liable for errors of judgment made
in good faith unless it was negligent in ascertaining the pertinent facts; and
(8) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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SECTION 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee or any Paying Agent shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder as may be mutually
agreed upon in writing by the Company and the Trustee (which compensation shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with the performance of
its duties under this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense (other than any income or franchise tax
attributable to compensation payable to the Trustee hereunder) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder. The Trustee shall
notify the Company promptly of any action, suit or proceeding for which it may
seek indemnity. The Company shall defend such action, suit or proceeding and
the Trustee may have separate counsel, and, if the Company has failed to assume
the defense and employ counsel, or if the named parties to any such action,
suit or proceeding (including any impleaded parties) include both the Trustee
and the Company and the Trustee shall have been advised by its counsel that
representation of the Trustee and the Company by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them, the Company shall pay the
reasonable fees and expenses of such counsel. The Company need
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not pay for any settlement made without its consent, which shall not be
unreasonably withheld.
The indemnity provided for in this Section 6.07 shall survive
the resignation or removal of any Trustee under this Indenture.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of or interest on
particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.01(5) or (6), the
expenses and the compensation for the services are intended to constitute
expenses of administration under any bankruptcy law.
SECTION 6.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus an set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(2) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
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(3) The Trustee may be removed at any time by Act of the
Holders of 50% or more in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(4) If at any time:
(A) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(B) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(C) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case,
(i) the Company by a Board Resolution may remove the Trustee, or (ii)
subject to Section 5.14, any Holder who has been a bona fide Holder of
a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor
Trustee.
(5) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
and shall comply with the applicable requirements of Section 6.11. If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee shall be appointed by Act of the Holders of
at least 50% in principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.11, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(6) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; provided, however,
on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder. Upon
request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
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SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer or
pursuant to Section 3.06, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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Any Authenticating Agent by the acceptance of its appointment
shall be deemed to have represented to the Trustee that it is eligible for
appointment as Authenticating Agent under this Section and to have agreed with
the Trustee that it will (i) perform and carry out the duties of an
Authenticating Agent as herein set forth, including among other things the
duties to authenticate Securities when presented to it in connection with the
original issuance and with exchanges, registrations of transfer or pursuant to
Section 3.06; (ii) keep and maintain, and furnish to the Trustee from time to
time as requested by the Trustee, appropriate records of all transactions
carried out by it as Authenticating Agent; (iii) furnish the Trustee such other
information and reports as the Trustee may reasonably require; and (iv) notify
the Trustee promptly if it shall cease to be eligible to act as Authenticating
Agent in accordance with the provisions of this Section. Any Authenticating
Agent by the acceptance of its appointment shall be deemed to have agreed with
the Trustee to indemnify the Trustee against any loss, liability or expense
incurred by the Trustee and to defend any claim asserted against the Trustee by
reason of any acts or failures to act of such Authenticating Agent, but such
Authenticating Agent shall have no liability for any action taken by it in
accordance with the specific written direction of the Trustee.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities described in the within-mentioned
Indenture
PNC BANK, KENTUCKY, INC.,
-------------------------
As Trustee
By:
------------------------------------
As Authenticating Agent
By:
------------------------------------
As Authorized Signatory
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing,
within 30 days (15 days with respect to any Special Record Date) after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished.
Notwithstanding the foregoing, so long as the Trustee shall be the Security
Registrar for the Securities, no such list need be furnished.
SECTION 7.02. Preservation of Information; Communications to Holders.
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
(2) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(3) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
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SECTION 7.03. Reports by Trustee.
Within 60 days following each May 15, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act, if any,
at the times and in the manner provided pursuant thereto. A copy of each such
report shall, at the time of such transmission to Holder, be filed by the
Trustee with each stock exchange upon which the Securities are listed, with the
Commission and with the Company. The Company will notify the Trustee when the
Securities are listed on any stock exchange.
SECTION 7.04. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to 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 Securities Exchange
Act of 1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation, partnership,
limited liability company or trust, shall be organized and validly existing
under the laws of the United States of America, any state thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
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(2) in each case, immediately after giving effect to such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and
(3) in each case, the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 8.02. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 8.01, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders or an additional Event of Default, or to surrender any right or
power herein conferred upon the Company; or
(3) to secure the Securities; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities; or
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(5) to cause the Indenture and the Securities to comply with
applicable law, including the Trust Indenture Act; or
(6) to cure any defect or ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture; provided, however, that such action pursuant to
this clause (6) shall not adversely affect the interests of the Holders in any
material respect.
SECTION 9.02. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of at least 50% in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or change the place of payment where,
or the coin or currency in which, any Security or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 5.13
or Section 10.11, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby, or
(4) modify any of the provisions of Article XII in a manner
adverse to the Holders.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
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SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to 6.01) shall be fully protected in relying upon, in
addition to the Officer's Certificate and Opinion of Counsel required by
Section 1.02, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
SECTION 9.07. Notice of Supplemental Indenture.
Promptly after the execution by the Company and the Trustee of
any supplemental indenture pursuant to Section 9.02, the Company shall transmit
to the Holders a notice setting forth the substance of such supplemental
indenture.
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ARTICLE X
COVENANTS
SECTION 10.01. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 10.02. Maintenance of Office or Agency.
The Company will maintain an office or agency (which may be the
Corporate Trust Office of the Trustee and which in any event shall not be
located outside the contiguous United States of America) where Securities may
be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company hereby appoints the Corporate Trust Office as its
agent where Securities may be presented or surrendered for payment, whereby
Securities may be surrendered for registration of transfer or exchange and the
Corporate Trust Office as its agent where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company may also from time to time designate one or more other offices or
agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
SECTION 10.03. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or interest on any of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by
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the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or
interest on any Security and remaining unclaimed for two years after such
principal or interest has become due and payable shall be paid to the Company
on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 10.04. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company ending after the date hereof, an
Officer's Certificate complying with the requirements of Section 3.14(a)(4) of
the Trust Indenture Act and stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
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The Company shall promptly, and in any event within 10 days of
the occurrence thereof, give notice to the Trustee of any default or Event of
Default hereunder.
SECTION 10.05. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises and the existence,
rights (charter and statutory) and franchises of each Subsidiary; provided,
however, that the Company shall not be required to preserve any such right or
franchise, whether relating to the Company or any Subsidiary, if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 10.06. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 10.07. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the name shall become delinquent, (i) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(ii) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
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SECTION 10.08. Maintenance of Insurance.
The Company will maintain, and will cause each of its
Subsidiaries to maintain, with insurers the Company reasonably believes to be
financially sound and reputable, insurance deemed adequate by the Company with
respect to its properties and business and the properties and business of its
Subsidiaries against loss or damage of the kinds customarily insured against by
corporations in the same or similar business. Such insurance may be subject to
co-insurance, deductibility or similar clauses which, in effect, result in
self-insurance of certain losses; provided that such self-insurance is in
accord with the practices of corporations in the same or similar business and
adequate insurance reserves are maintained in connection with such
self-insurance.
SECTION 10.09. Restrictions on Sale and Leaseback Transactions.
So long as any of the Securities are outstanding, the Company
will not, nor will it permit any Subsidiary to, enter into any arrangement with
any Person (other than the Company or a Subsidiary) providing for the leasing
by the Company or any Subsidiary of any property or assets, whether now owned
or hereafter acquired, which has been or is to be sold or transferred by the
Company or such Subsidiary to such Person with the intention of taking back a
lease on such property or assets and which arrangement would be characterized
or qualified as either a Capital Lease or Off-Balance Sheet Liability (a "Sale
and Leaseback Transaction"), if, at the time of entering into such Sale and
Leaseback Transaction, and after giving effect thereto, the amount of
Attributable Debt in respect of such Sale and Leaseback Transaction, together
with all such other Attributable Debt outstanding exceeds the greater of (i)
$25,000,000 or (ii) together with all Indebtedness of Subsidiaries (not
including Indebtedness permitted to be issued, assumed, incurred or guaranteed
under clauses (1) through (10) under "Restrictions on Subsidiary Indebtedness"
below), 15% of Consolidated Net Worth of the Company.
SECTION 10.10. Restrictions on Subsidiary Indebtedness.
So long as any of the Securities are outstanding, the Company
will not permit any of its Subsidiaries to issue, assume, incur or guarantee
any Indebtedness, except that the foregoing restrictions shall not apply to:
(1) Indebtedness existing as of the date of the Indenture,
including, without limitation, all existing or available borrowings under the
Bank Credit Agreement and the 1996 Notes;
(2) Indebtedness of a corporation or other entity existing at
the time it becomes a Subsidiary and not incurred as a result of, or in
connection with or in anticipation of, such Subsidiary becoming a Subsidiary;
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(3) Indebtedness of a corporation or other entity assumed at
the time of its acquisition by a Subsidiary (including acquisition through
merger or consolidation) and not incurred as a result of, or in connection with
or in anticipation of, such acquisition;
(4) unsecured intercompany Indebtedness of a Subsidiary for
loans or advances made to such Subsidiary by the Company or another Subsidiary;
provided that upon either (i) the transfer or other disposition by the Company
or a Subsidiary of any Indebtedness so permitted to a Person other than the
Company or another Subsidiary or (ii) the issuance, sale, transfer or other
disposition (other than a pledge of the shares of such Subsidiary) of shares of
capital stock (including acquisition through merger or consolidation) of such
Subsidiary to a Person other than the Company or another Subsidiary which,
after giving effect thereto, results in such Subsidiary ceasing to be a
Subsidiary of the Company, the provisions of this clause (4) shall no longer be
applicable to such Indebtedness and such indebtedness shall be deemed to have
been issued, assumed, incurred or guaranteed at the time of such transfer or
other disposition;
(5) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(6) Purchase Money Indebtedness and Capital Leases incurred or
entered into by a Subsidiary not to exceed an aggregate outstanding principal
amount at any time of $25,000,000; provided, however, that the aggregate
outstanding principal amount of Purchase Money Indebtedness and Capital Leases
permissible under this clause (6) shall be increased or decreased to such
amount as is permissible under the Bank Credit Agreement;
(7) Permitted Receivables Securitizations;
(8) Off-Balance Sheet Liabilities (other than Permitted
Receivables Securitizations) not to exceed an aggregate outstanding principal
amount of $25,000,000 reduced by the amount, if any, of secured Indebtedness of
a Subsidiary; provided, however, that the aggregate outstanding principal
amount of Off-Balance Sheet Liabilities shall be increased or decreased to such
amount as is permitted from time to time under the Bank Credit Agreement;
(9) Indebtedness arising from Rate Hedging Obligations incurred
to limit risks of currency or interest rate fluctuations to which a Subsidiary
is otherwise subject by virtue of the operations of its business, and not for
speculative purposes; provided, however, that the aggregate notional amount of
all such Rate Hedging Obligations shall not exceed at any time $500,000,000;
and provided, further, that the aggregate outstanding principal amount of
Indebtedness arising from Rate Hedging Obligations under this clause (9) shall
be increased or decreased to such amount as is permissible under the Bank
Credit Agreement;
(10) the extension, renewal, refinancing or replacement (or
successive extensions, renewals, refinancings or replacements), in whole or in
part, of any
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Indebtedness referred to in the foregoing clauses (1) through (9); provided,
however, (i) that the Indebtedness so issued has (A) a principal amount not in
excess of the principal amount of the Indebtedness being extended, renewed,
refinanced or replaced (which amount shall be deemed to include the amount of
any undrawn or available amounts under any committed credit or lease facility to
be so extended, renewed, refinanced or replaced), (B) a final redemption date
later than the final stated maturity or final redemption date, if any, of the
Indebtedness being extended, renewed, refinanced or replaced and (C) an Average
Life at the time of issuance of such Indebtedness that is greater than the
Average Life of the Indebtedness being extended, renewed, refinanced or
replaced; (ii) the group of direct or contingent obligors on such Indebtedness
shall not be expanded as a result of any such action; and (iii) immediately
prior to and immediately after giving effect to any such extension, renewal or
replacement, no Event of Default shall have occurred and be continuing.
Notwithstanding the foregoing, any Subsidiary may issue, assume, incur or
guarantee Indebtedness which otherwise would be subject to the foregoing
restrictions in an aggregate amount, that together with all other such
Indebtedness of any Subsidiaries outstanding which would otherwise be subject
to the foregoing restrictions (not including Indebtedness permitted to be
issued, assumed, incurred or guaranteed under clauses (1) through (10) above),
that does not exceed 15% of Consolidated Net Worth of the Company.
SECTION 10.11. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 10.09 and 10.10, if before the
time for such compliance the Holders of at least 50% in principal amount of the
Outstanding Securities shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
ARTICLE XI
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 11.01. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have
Section 11.02 or Section 11.03 applied to any Securities designated pursuant to
Section 3.01 as being defeasible pursuant to such Sections 11.02 or 11.03, in
accordance with any applicable requirements provided pursuant to Section 3.01
and upon compliance with the conditions set forth below in this Article. Any
such election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 3.01 for such Securities.
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SECTION 11.02. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities the Company shall be deemed to have been
discharged from its obligations with respect to such Securities as provided in
this Section on and after the conditions set forth in Section 11.04 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Securities 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 Company, shall execute
proper instruments acknowledging the same), subject to the following which
shall survive until otherwise terminated or discharged hereunder: (1) the
rights of Holders of such Securities to receive, solely from the trust fund
described in Section 11.04 and as more fully set forth in such Section,
payments in respect of the principal and interest on such Securities when
payments are due, (2) the Company's obligations with respect to such Securities
under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, (3) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (4) this Article.
Subject to compliance with this Article, the Company may exercise its option
(if any) to have this Section applied to any Securities notwithstanding the
prior exercise of its option (if any) to have Section 11.03 applied to such
Securities.
SECTION 11.03. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this
Section applied to any Securities (1) the Company shall be released from its
obligations under Section 8.01(3), Sections 10.06 through 10.10, inclusive, and
any covenant provided pursuant to Section 9.01(2) for the benefit of the
Holders of such Securities and (2) the occurrence of any event specified in
Sections 5.01(3) (with respect to any of Section 801(3), Sections 10.06 through
10.10, inclusive, and any such covenants provided pursuant to Section 9.01(2)
and 5.01(4) shall be deemed not to be or result in an Event of Default, in each
case with respect to such Securities as provided in this Section on and after
the date the conditions set forth in Section 11.04 are satisfied (hereinafter
called "Covenant Defeasance"). For this purpose, such Covenant Defeasance means
that, with respect to such Securities, the Company may omit to comply with and
shall have no liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified in the case of
Section 5.01(3)), 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.
SECTION 11.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of
Section 11.02 or Section 11.03 to any Securities:
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(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 6.09 and agrees to comply with the provisions of this
Article 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, (A) money in an amount, or
(B) 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, money in an
amount, or (C) a combination thereof, in each case 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 any such other qualifying
trustee) to pay and discharge, the principal and interest on such Securities on
the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities. As used herein, "U.S. Government Obligation"
means (x) any security which is (i) a direct obligation of the United States of
America for the payment of which the full faith and credit of the United States
of America is pledged or (ii) an obligation 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
(i) or (ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary 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
U.S. Government Obligation which is specified in clause (x) above and held by
such bank for the account of the holder of such depositary receipt, or with
respect to any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held; 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 depositary receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or the
specific payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 11.02 apply to
any Securities the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since the date of
this instrument, there has been a change in the applicable federal income tax
law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not recognize
gain or loss for federal income tax purposes as a result of the deposit,
Defeasance and discharge to be effected with respect to such Securities and
will be subject to federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
(3) In the event of an election to have Section 11.03 apply to
any Securities the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will be
subject to federal income tax on the name
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amount, in the same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Sections 5.01(5) and (6), at any
time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust
Indenture Act (assuming all Securities are in default within the meaning of the
Trust Indenture Act).
(7) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(8) 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 unless such trust shall be registered
under such Act or exempt from registration thereunder.
(9) The Company shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance
have been complied with.
SECTION 11.05. Deposited Money and U.S. Government Obligations to Be Held
in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section
10.03, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section and Section 11.06, the Trustee and any such other
trustee are referred to collectively as the "Trustee") pursuant to Section
11.04 in respect of any Securities shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal and interest, but money so held in trust need
not be segregated from other funds except to the extent required by law.
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The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 11.04 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 11.04 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount which would then be required to be deposited to effect the Defeasance or
Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 11.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money
in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 11.02 or 1103 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to
apply all money held in trust pursuant to Section 11.05 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or interest on any such Security
following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
ARTICLE XII
SUBORDINATION
SECTION 12.01. Agreement that Securities to be Subordinate.
The Company covenants and agrees, and each Holder of Securities
issued hereunder by his acceptance thereof likewise covenants and agrees, that
all Securities issued hereunder are issued subject to the following provisions
and each Holder hereof, whether upon original issue or upon transfer or
assignment thereof, accepts and agrees to be bound by such provisions.
As and to the extent hereinafter provided, all Securities
shall, for all purposes and in all respects without limitation, including those
hereinafter set forth, be expressly subordinated and subject in right of
payment to the prior payment in full, in money or money's worth of the
principal, premium, if any, or interest on all Senior Indebtedness; provided,
however, that payments on account of principal, premium, if
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any, or interest on the Securities may be made from time to time, subject to the
specific limitations set forth in this Article XII.
SECTION 12.02. Limitation During Certain Defaults on Senior Indebtedness.
No payments on account of principal, premium, if any, or
interest on the Securities shall be made, nor shall any property or assets of
the Company be applied to the purchase or other acquisition or retirement of
the Securities, unless and until full payment of amounts then due for
principal, premium, if any, and interest on Senior Indebtedness has been made
or duly provided for in money or money's worth. No payment on account of
principal, premium, if any, or interest on the Securities shall be made, nor
shall any property or assets of the Company be applied to the purchase or other
acquisition or retirement of the Securities, if, at the time of such payment or
application or immediately after giving effect thereto, there shall exist under
any Senior Indebtedness or any agreement pursuant to which any such Senior
Indebtedness is issued any event of default permitting the holders of such
Senior Indebtedness (or a trustee on behalf of such holders) to accelerate the
maturity thereof, provided, however, that in the case of such an event of
default (other than in payment of such Senior Indebtedness when due) the
foregoing shall not prevent any such payment or application for a period longer
than 90 days after the date on which the holders of such Senior Indebtedness
(or such trustee) shall have first obtained written notice of such event of
default from the Company or the Holder of any Securities, if the maturity of
such Senior Indebtedness is not so accelerated within such 90 day period.
Subject to the above, if there shall have occurred any Event of Default
specified in Section 5.01, other than of the nature referred to in Section
12.03 then and unless and until either such Event of Default shall have been
cured or waived or shall have ceased to exist or the principal of, premium, if
any, and interest on all Senior Indebtedness shall have been paid in full in
money or money's worth, no payment shall be made by the Company on account of
the principal of, premium, if any, or interest on the Securities, or on account
of the purchase or other acquisition of Securities, except (i) payments at the
expressed maturity of the Securities (subject to the next Section), (ii)
current interest payments as provided in the Securities and (iii) payments for
the purpose of curing any such Event of Default.
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SECTION 12.03. Priority of Senior Indebtedness.
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or total or partial liquidation or
reorganization of the Company or similar proceeding relating to the Company or
its property, whether voluntary or involuntary, and whether or not the Company
is a party thereto, or in bankruptcy, insolvency, receivership or other
proceedings, all principal, premium, if any, and interest due upon all Senior
Indebtedness shall first be paid in full, or payment thereof provided for in
money or money's worth, before the Holders of the Securities shall be entitled
to retain any assets so paid or distributed in respect thereof (for principal,
premium, if any, or interest); and upon any such dissolution or winding-up or
liquidation or reorganization or similar proceeding, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Securities would be
entitled, except for the provisions herein set forth, shall be paid by the
Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other person making such payment or distribution, or by the Holders of the
Securities if received by them, direct to the holders of Senior Indebtedness
(pro rata to each such holder on the basis of the respective amounts of Senior
Indebtedness held by such holder) or their representatives or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
of such Senior Indebtedness may have been issued, to the extent necessary to
pay all Senior Indebtedness in full, in money or money's worth, after giving
effect to any concurrent payment or distribution to or for the holders of
Senior Indebtedness, before any payment or distribution is made to the Holders
of the Securities.
SECTION 12.04. Payment to Holders of Senior Indebtedness of Certain Amounts
Received by Holders of Securities.
In the event that, notwithstanding the provisions of the prior
two preceding Sections, any distribution of assets of the Company or payment by
or on behalf of the Company of any kind or character, whether in cash, property
or securities, to which the Holders of the Securities or the Trustee would be
entitled but for these subordination provisions, shall be received by the
Trustee or the Holders of the Securities before the principal of, premium, if
any, and interest on all Senior Indebtedness is paid in full in money or
money's worth, or provision made for its payment, such distribution or payment
shall be held in trust for the benefit of, and shall be paid over or delivered
to, the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably as aforesaid, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay the principal of,
premium, if any, and interest on all such Senior Indebtedness in full in money
or money's worth, after giving effect to any concurrent distribution or
payment, or provision therefor, to the holders of such Senior Indebtedness.
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SECTION 12.05. Subrogation.
Subject to the payment in full of all Senior Indebtedness, in
accordance with the terms of such Senior Indebtedness, the Holders of the
Securities (together with the holders of any other indebtedness of the Company
which is subordinated in right of payment to the payment of other indebtedness
of the Company, but is not subordinate in right of payment to the Securities
and by its terms grants such right of subrogation to the holders thereof) shall
be subrogated to the rights of the holder or holders of Senior Indebtedness to
receive payments or distributions of assets of the Company or other payments
applicable to such Senior Indebtedness to the extent of the application thereto
of moneys or other assets which would have been received by the Holders of the
Securities but for the subordination provisions hereof until the principal of
and interest on the Securities shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders of Senior
Indebtedness of cash, property or securities to which the Holders of the
Securities would be entitled except for the subordination provisions hereof,
and no payment over pursuant to the provisions hereof to the holders of Senior
Indebtedness by the Holders of the Securities shall, as between the Company,
its creditors (other than holders of Senior Indebtedness) and the Holders of
the Securities, be deemed a payment by the Company on account of such Senior
Indebtedness; it being understood that the subordination provisions hereof are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Securities on the one hand, and of the holders of Senior
Indebtedness on the other hand, and nothing herein is intended to or shall
alter or impair, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities, the obligations of
the Company, which are absolute and unconditional, subject only to the rights
of the holders of Senior Indebtedness, to pay to the Holders of the Securities
the principal of and interest on the Securities as and when the same shall
become due and payable in accordance with the terms thereof, or to affect the
relative rights of the Holders of the Securities and creditors of the Company
other than holders of Senior Indebtedness, nor shall anything herein prevent
the Holders of the Securities from exercising all remedies otherwise permitted
hereby or, except as expressly limited hereby, by applicable law upon default
under the Securities, subject, in any event, to the rights, if any, hereunder
of the Holders of Senior Indebtedness in respect of any payment or distribution
of cash, property or securities of the Company or any other payment in respect
of the Securities received upon the exercise of any such remedy.
SECTION 12.06. Reliance by Senior Indebtedness on Subordination Provisions.
Each holder of any Security by his acceptance thereof
acknowledges and agrees that the foregoing subordination provisions are, and
are intended to be, an inducement and a consideration to each holder of any
Senior Indebtedness, whether such Senior Indebtedness was created or acquired
before or after the issuance of the Securities, to acquire and continue to
hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
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SECTION 12.07. Certain Payments and Credits Permitted.
Nothing contained in these subordination provisions or
elsewhere in this Indenture, or in any of the Securities, shall prevent at any
time except under the conditions described above (a) the Company from making
payment of the principal of, premium, if any, or interest on the Securities, or
from depositing with the Trustee or any paying agent moneys for such payments,
or (b) the application by the Trustee or any paying agent of any moneys
deposited with it under and in accordance with this Indenture to the payment of
or on account of the principal of, premium, if any, or interest on the
Securities.
SECTION 12.08. Subordination Not to be Prejudiced by Certain Acts.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein provided, shall
at any time in any way be prejudiced or impaired by any act or failure to act
on the part of the Company or by any act or failure to act, in good faith, by
any such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
SECTION 12.09. Trustee Authorized to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes
and directs the Trustee in its behalf to take such action as may be necessary
or appropriate to acknowledge or effectuate the subordination as provided in
these subordination provisions and appoints the Trustee his attorney-in-fact
for any and all such purposes.
SECTION 12.10. Xxxxxxx's Right regarding Senior Indebtedness Held by it.
The Trustee shall be entitled to all the rights set forth in
these subordination provisions in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in Section 6.13 or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
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SECTION 12.11. Notice to Trustee of Specified Events.
The Company shall give prompt written notice to the Trustee of
any dissolution, winding up, liquidation, reorganization, readjustment,
arrangement or similar proceeding, assignment of the benefit of creditors, or
any marshalling of assets and liabilities, in respect of the Company, and shall
also give prompt written notice to the Trustee of any event which pursuant to
these subordination provisions would prevent payment by the Company on account
of the principal of, premium, if any, or interest on the Securities or on
account of the purchase of Securities. The Trustee, subject to the provisions
of Article VI, shall be entitled to assume that no such event has occurred
unless the Company, or a holder of Senior Indebtedness, or any trustee
therefor, has given such notice. Upon any distribution of assets of the Company
or payment by or on behalf of the Company referred to in these subordination
provisions, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree of a court of competent jurisdiction in which any
proceedings of the nature preferred to above are pending, and the Trustee,
subject to the provisions of Article VI hereof, and the Holders of the
Securities shall be entitled to rely upon a certificate of the liquidating
trustee or agent or other person making any distribution to the Trustee or to
the Holders of the Securities for the purpose of ascertaining the persons
entitled to participate in such distributions, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to these subordination provisions. In the
event that the Trustee determines, in good faith, that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to these
subordination provisions, the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the trustee as to the amount of
Senior Indebtedness held by such person, as to the extent to which such person
is entitled to participate in such payment or distribution, and as to other
facts pertinent to the rights of such person under these subordination
provisions,and if such evidence is not furnished, the Trustee may defer any
payment to such person pending judicial determination as to the right of such
person to receive such payment. The Trustee, however, shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness but shall have
such obligations to such holders as are expressly set forth in these
subordination provisions.
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SECTION 12.12. Trustee and Paying Agents Not Chargeable With Knowledge until
Notice.
Notwithstanding any of these subordination provisions or any
other provisions of this Indenture, the Trustee and any paying agent shall not
at any time be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee or any paying
agent, unless and until the Trustee or such paying agent, as the case may be,
shall have received written notice thereof from the Company or a holder of
Senior Indebtedness, or any trustee therefor, and prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Article VI, and
any paying agent shall be entitled to assume that no such facts exist. If at
least twenty-four hours prior to the date upon which by the terms hereof any
such moneys may become payable for any purpose (including, without limitation,
the payment of either the principal of, premium, if any, or the interest on any
Security) the Trustee or payment agent, as the case may be, shall not have
received with respect to such moneys the notice provided for in this provision,
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys and to apply the same
to the purpose for which they may be received by it or on or after such date.
SECTION 12.13. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness except as set forth in Section 12.04 but
only if the Trustee has received notice as provided in Section 12.12.
* * *
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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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 day and year first above written.
MEDPARTNERS, INC.
By:
-----------------------------------
Name:
Title:
Attest:
By:
----------------------------
Name:
Title:
PNC BANK, KENTUCKY, INC.,
-------------------------
as Trustee
By:
-----------------------------------
Name:
Title:
Attest:
By:
----------------------------
Name:
Title:
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