1
Exhibit 4.2
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NATIONAL HEALTHCORP L.P.
TO
BOATMEN'S TRUST COMPANY
Corporate Trustee
AND
H.E. BRADFORD
Individual Trustee
-------------------------
INDENTURE OF MORTGAGE
AND DEED OF TRUST
-------------------------
$20,000,000
___ % FIRST MORTGAGE BONDS
DUE JANUARY 15, 2005
Dated as of October 15, 1989
This Instrument Contains After-Acquired Property Provisions
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NATIONAL HEALTHCORP L.P.
___ % First Mortgage Bonds due January 15, 2005
CROSS REFERENCE SHEET
(Between Trust Indenture Act of 1939 and the Indenture)
Trust Indenture
Act of 1939
Section Indenture Section
---------------- -----------------
310(a)(1)(2)(3)........... 16.01 and 16.13
(a)(4)................. Not applicable
(b) ................... 16.10, 16.11
(c).................... Not applicable
311(a).................... 16.09(A), (C)
(b..................... 16.09(B)
(c).................... Not applicable
312(a).................... 7.01(A), (B)
(b).................... 7.01(C)
(c).................... 7.01(D)
313(a).................... 7.03(A)
(b).................... 7.03(B)
(c).................... 7.03(C)
(d).................... 7.03(D)
314(a).................... 7.02(A), (b) (C)
(b) ................... 6.12(C), (D)
(c).................... 5.01, 5.02, 5.03, 10.01, 10.02,
10.03, 10.04, 10.05 and 17.01
(d).................... 5.03(B), 10.02(B), 10.02(E),
10.03(B), (D), (F), 10.04(C) and 20.
(e).................... 20.04
315(a) ................... 16.02(A)
(b).................... 12.02
(c).................... 16.02(B)
(d).................... 16.02(C)
(e).................... 12.23
316(a)(1)................. 12.11 and 12.27
(a)(2)................. Not applicable
(b).................... 12.21 and 12.22
317(a).................... 12.18 and 12.20
(b) ................... 6.06(B), (C)
318(a).................... 20.07
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TABLE OF CONTENTS
PAGE
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PARTIES...............................
PRELIMINARY STATEMENT ................
FORM OF BOND .........................
GRANT IN TRUST........................
COVENANT CLAUSE.......................
ARTICLE 1.
DEFINITIONS.
SECTION 1.01. Explanatory statement.......................
Act.........................................
Affected....................................
Affiliate...................................
Application.................................
Authenticating Agent........................
Board of Directors or Board.................
Bond or Bonds...............................
Bond Co-Registrar...........................
Bond Register and Bond Registrar............
Bondable Cost ..............................
Bondholder, Holder, etc. ...................
business day ...............................
capital stock ..............................
Capitalized Cost ...........................
Certified Resolution........................
common stock ...............................
Company.....................................
Company Order and Company Request...........
Current ....................................
Daily Newspaper ............................
date of this Indenture .....................
Debt .......................................
Default ....................................
Defaulted Interest..........................
Deposited Cash .............................
Equipment ..................................
Event of Default ...........................
Executive Officer ..........................
Fundamental Structural Change ..............
General Partner ............................
Grant ......................................
Hazardous Substances .......................
Indenture ..................................
Independent ................................
Interest Payment Date.......................
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lessor...............................
Lien of this Indenture ..............
MAI Appraisal........................
MAI Appraiser........................
main office..........................
maturity or mature...................
Mortgage.............................
Mortgaged and Pledged Property.......
Officers' Certificate................
Operating Subsidiary.................
Opinion of Counsel ..................
Original Issue Date .................
Outstanding .........................
paying agent ........................
Permitted Encumbrance................
person ..............................
place of payment ....................
predecessor Bond ....................
Proceeding ..........................
Property ............................
Redemption Date .....................
Regular Record Date..................
Responsible Officer..................
Special Record Date..................
Stated Maturity .....................
Subsidiary ..........................
supplemental indenture ..............
Trustees ............................
Trust Estate ........................
Trust Indenture Act .................
Unit ................................
ARTICLE 2.
DESCRIPTION, EXECUTION, REGISTRATION, TRANSFER
AND EXCHANGE OF BONDS.
SECTION 2.01. Issuable in series in fully
registered form without coupons,
date of Bonds, record date for
payment of interest place of
Payment of Bonds....................
SECTION 2.02 Provisions any series
may contain.........................
SECTION 2.03. Numbers, designations, legends,
etc. on Bonds.......................
SECTION 2.04. Execution of Bonds....................
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PAGE
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SECTION 2.05. Registration of transfer of Bonds....
SECTION 2.06. Exchange and registration of
transfer of Bonds .................
SECTION 2.07. Temporary Bonds .....................
SECTION 2.08. Recognition of registered holders
of definitive Bonds and temporary
Bonds ...............................
SECTION 2.09. Mutilated, destroyed, lost or
stolen Bonds ......................
SECTION 2.10. Form and authentication of Bonds ....
SECTION 2.11. Surrender and Cancellation of
Bonds .............................
ARTICLE 3.
THE 1989 BONDS.
SECTION 3.01. Terms of initial series
of Bonds .........................
(A) Designation and Form ...........
(B) Limitation as to principal
amount..........................
(C) Date of maturity and interest
rate............................
(D) Denominations and Exchanges.....
(E) Optional redemption and
prepayment......................
(F) Mandatory redemption............
ARTICLE 4.
GENERAL PROVISIONS AS TO ISSUE OF BONDS.
SECTION 4.01. Aggregate amount of Bonds which
may be secured by Indenture........
SECTION 4.02. Company free to determine price,
etc. for Bonds ....................
SECTION 4.03. Additional Bonds issuable ...........
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Page
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ARTICLE 5.
ISSUANCE OF BONDS AND APPLICATION OF DEPOSITED CASH.
SECTION 5.01. Issuance of Bonds for Cash....................
SECTION 5.02. Documents required for
authentication and delivery of Bonds........
SECTION 5.03 Withdrawal of Deposited Cash..................
ARTICLE 6.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 6.01. Will preserve partnership existence
and rights and comply with law
and agreements..............................
SECTION 6.02. Warranty of title.............................
SECTION 6.03. Will give further assurances..................
SECTION 6.04. Will punctually pay principal,
premium and interest on Bonds...............
SECTION 6.05. Will pay taxes and other charges)
permitted contests..........................
SECTION 6.06. (A) Office or agency..........................
(B) Appointment of Corporate Trustee
as paying agent; duty of paying agent
other than Corporate Trustee..............
(C) Duty of Company acting as
paying agent..............................
(D) Delivery to Corporate Trustee
of sums held by other paying agents.......
(E) All sums to be held subject to
Section 20.03.............................
SECTION 6.07. Will pay Debt.................................
SECTION 6.08. Will not
(A) Mortgage or otherwise encumber
Trust Estate, except as
permitted ................................
(B) Merge, consolidate or dispose
of certain properties,
except as permitted, or dispose
of any Mortgaged and Pledged
Property .................................
SECTION 6.09. Will remain and preserve properties ..........
SECTION 6.10. Will maintain insurance ......................
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SECTION 6.11. Will act to enforce payment under
instruments in Trust Estate............
SECTION 6.12. (A) Will record instruments to
extent required......................
(B) Will pay all taxes and other
expenses.............................
(C) Opinion of Counsel...................
(D) Will deliver annual recording
opinion..............................
SECTION 6.13. Will maintain office.....................
SECTION 6.14. Will keep, and permit examination
of, records and books of account
and will permit visitation of
property...............................
SECTION 6.15. Will furnish annual certificates.........
SECTION 6.16. Will furnish annual independent
accountants' letter...................
SECTION 6.17. Performance of covenants and
conditions............................
SECTION 6.18 Subordination of lessors'
interests.............................
SECTION 6.19 Environmental matters....................
ARTICLE 7.
BONDHOLDER LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEES.
SECTION 7.01. Bondholder lists, etc....................
SECTION 7.02. Reports by Company ......................
SECTION 7.03. Reports by Trustees......................
ARTICLE 8.
REDEMPTION OF 1989 BONDS AT COMPANY'S OPTION.
SECTION 8.01. Election by Company to
redeem bonds ..........................
SECTION 8.02. Redemption of part only of
Bonds .................................
SECTION 8.03. Notice of Redemption.....................
SECTION 8.04. Deposit of redemption price..............
SECTION 8.05. Date on which Bonds cease
to bear interest, etc. ................
SECTION 8.06. All Bonds delivered .....................
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PAGE
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ARTICLE 9.
REDEMPTION OF 1989 BONDS AT HOLDER'S OPTION.
SECTION 9.01. Redemption right at holder's
Option................................
SECTION 9.02. Redemption Procedure....................
SECTION 9.03. Withdrawal..............................
SECTION 9.04. Redemption Register.....................
SECTION 9.05. Redemption right upon Change
in Control............................
SECTION 9.06. Redemption of Bonds subject
to Article 8..........................
ARTICLE 10.
POSSESSION AND RELEASE OF MORTGAGED
AND PLEDGED PROPERTY.
SECTION 10.01. Generally...............................
SECTION 10.02. Requirements for Release ...............
SECTION 10.03. Requirements in case of eminent
domain or other forced sale ..........
SECTION 10.04. Certain documents required
for release ..........................
SECTION 10.05. Execution of disclaimer or
quitclaim by Trustees ................
SECTION 10.06. Release where mortgaged
property in possession of
receiver .............................
SECTION 10.07. Release where Event of
Default continuing ...................
SECTION 10.08 Provisions not in limitation
of one another .......................
ARTICLE 11.
PURCHASER IN GOOD FAITH.
ARTICLE 11.01. Purchaser in good faith not put on
inquiry..............................
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PAGE
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ARTICLE 12.
REMEDIES OF TRUSTEES AND BONDHOLDERS UPON DEFAULT.
SECTION 12.01. Definition of Default and Event of
Default.....................................
SECTION 12.02. Trustees to give Bondholders notice
of Defaults.................................
SECTION 12.03. Declaration of principal and accrued
interest due upon Default...................
Holders of specified percentage of
Bonds may waive Default
declaration.................................
SECTION 12.04. Trustees may take possession and
operate property on Default.................
SECTION 12.05. Power of Trustees to sell all the
mortgaged property..........................
SECTION 12.06. Publication of Notice of Sale.................
SECTION 12.07. Trustees may adjourn sale.....................
SECTION 12.08. Title upon sale vested in purchaser ..........
Trustees to execute necessary deeds...........
SECTION 12.09. Sale shall divest Company of right
of property.................................
SECTION 12.10. Remedies cumulative...........................
Delay, etc. not a waiver of rights............
Waiver of default not to extend to
subsequent defaults.........................
SECTION 12.11. Holders of specified percentage of
Bonds may direct judicial
proceedings by Trustees.....................
SECTION 12.12. Appointment of receiver.......................
SECTION 12.13. All Bonds to become due and payable
upon sale of property.......................
SECTION 12.14. Purchase by Bondholders at sale of
property....................................
SECTION 12.15. Receipt of Trustees or officer
making sale to be a discharge to
purchaser...................................
SECTION 12.16. Disposition of proceeds of sale...............
SECTION 12.17. Waiver by Company of advantage of
any appraisement, valuation, stay,
extension or redemption laws, and
of rights to marshal assets.................
SECTION 12.18. Payment of principal and interest to
Trustees upon occurrence of certain
defaults....................................
Judgment may be taken by Trustees.............
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Enforcement of rights by Trustees
during the continuance of an
Event of Default............................
Lien of Indenture not to be
affected by judgment or levy of
execution by Trustees.......................
Application of moneys collected by
Trustees....................................
SECTION 12.19. Possession of Bonds unnecessary in
action by Trustees..........................
SECTION 12.20. Trustees may file necessary proofs............
SECTION 12.21. Limitation upon right of Bondholders
to institute certain legal proceedings......
SECTION 12.22. Right of Bondholders to receive and
enforce payment not impaired................
SECTION 12.23. Court may require undertaking to
pay costs...................................
SECTION 12.24. Unenforceable provision
inoperative.................................
SECTION 12.25. Company may waive period of grace.............
SECTION 12.26. If enforcement proceedings abandoned,
status quo is established...................
SECTION 12.27. Bondholders may waive certain
defaults....................................
ARTICLE 13.
EVIDENCE OF RIGHTS OF BONDHOLDERS
AND OWNERSHIP OF BONDS.
SECTION 13.01. Evidence of ownership of definitive
Bonds and temporary Bonds issued
hereunder in registered form................
ARTICLE 14.
IMMUNITY OF ORGANIZERS; SUBSCRIBERS TO THE UNITS,
LIMITED PARTNERS, OFFICERS AND DIRECTORS.
SECTION 14.01. Liability of officers, etc.,
released and waived ........................
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PAGE
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ARTICLE 15.
CONSOLIDATION, MERGER, CONVEYANCE AND LEASE.
SECTION 15.01. Company may merge, consolidate,
etc., upon certain terms.....................
SECTION 15.02. Right of successor partnership.................
Execution of supplemental indenture..........
Successor partnership to have all
rights of the Company......................
SECTION 15.03. Opinion of Counsel, Officers'
Certificate and supplemental
indenture required...........................
SECTION 15.04. Article 15 subject to provisions
of Section 9.05..............................
ARTICLE 16.
CONCERNING THE TRUSTEES.
SECTION 16.01. Requirement of Corporate
Trustee, eligibility.........................
SECTION 16.02. Acceptance of Trust............................
Duties.........................................
Extent of liability............................
SECTION 16.03. Disclaimer.....................................
SECTION 16.04. Trustees may own Bonds.........................
SECTION 16.05. Absence of personal liability..................
SECTION 16.06. Trustees may rely on certificates, etc. .......
SECTION 16.07. Money held in trust not required to
be segregated................................
SECTION 16.08. Compensation, Reimbursement,
Indemnity, Security..........................
SECTION 16.09. Rights of Trustees as creditor.................
SECTION 16.10. Conflict of Interest...........................
SECTION 16.11. Resignation, Removal, Appointment of
successor Trustees...........................
SECTION 16.12. Acceptance by successor Trustees...............
SECTION 16.13. (A) Note, etc. on behalf of Company
delivered to Corporate Trustee
deemed to be delivered to both
Trustees...................................
(B) Cash, securities, etc. to be
held by Corporate Trustee..................
Title to be in both Trustees ..............
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(C) Individual Trustee may act on
written request of and delegate
powers to Corporate Trustee ............
(D) Renewal of Individual Trustee
Exercise of duties by Corporate
Trustee in event of incapacity
of Individual Trustee ..................
SECTION 16.14. Appointments Of attorney-in-fact,
etc. .....................................
SECTION 16.15. Merger or consolidation of
Corporate Trustee ........................
SECTION 16.16. Authenticating agent .......................
ARTICLE 17.
DISCHARGE OF MORTGAGES.
SECTION 17.01 Acknowledgement of discharge................
SECTION 17.02. Money held in trust.........................
ARTICLE 18.
MEETINGS OF BONDHOLDERS.
SECTION 18.01. Purposes for which meetings may be
called....................................
SECTION 18.02. Call of meetings by Corporate
Trustee; generally........................
SECTION 18.03. Call of meetings by Corporate
Trustee; notice...........................
SECTION 18.04. Meetings; notice and entitlement to
be present................................
SECTION 18.05. Regulations may be made by Corporate
Trustee ..................................
Conduct of the meeting......................
Voting rights adjournment...................
SECTION 18.06. Manner of voting at meetings and
record to be kept.........................
SECTION 18.07. Evidence of action by Holders of
specified percentage of Bonds.............
SECTION 18.08. Exercise of right of Corporate
Trustee or Bondholders may not be
hindered or delayed by call of
meeting of Bondholders....................
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ARTICLE 19.
SUPPLEMENTAL INDENTURES.
SECTION 19.01. Purposes for which supplemental
indentures may be executed by
Company and Trustees..........................
SECTION 19.02. Modification of Indenture by written
consent of Bondholders........................
SECTION 19.03. Requirements for execution......................
Duties and immunities of Trustees...............
SECTION 19.04. Supplemental indentures part of
Indenture ......................................
SECTION 19.05. Bonds executed after supplemental
indenture to be approved by
Corporate Trustee.............................
SECTION 19.06. Supplemental indentures required to
comply with Trust Indenture Act
of 1939.......................................
ARTICLE 20.
MISCELLANEOUS.
SECTION 20.01. Benefits restricted to parties and to
Holders of Bonds..............................
SECTION 20.02. Investment of cash by Corporate
Trustee in certain securities.................
Such securities held by Corporate
Trustee as part of mortgaged
property......................................
SECTION 20.03. Deposits for Bonds not claimed for
specified period to be returned to
Company on demand...............................
SECTION 20.04. Formal requirements of certificates
and opinions hereunder........................
SECTION 20.05. Evidence of Act of the Bondholders..............
SECTION 20.06. Parties to include successors and
assigns.......................................
SECTION 20.07. In event of conflict with Trust
Indenture Act of 1939, provisions
therein to control............................
SECTION 20.08. Company may limit and thereafter
decrease amount to be secured by
this Indenture................................
SECTION 20.09. Request, notices, etc. to Corporate
Trustee.......................................
SECTION 20.10. Manner of notice................................
SECTION 20.11 Severability....................................
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SECTION 20.12. Payments due on days when banks
closed .................................
SECTION 20.13. Backup Withholding Form ..................
SECTION 20.14. Titles of Articles of this Indenture
not part thereof........................
SECTION 20.15. Execution in counterparts.................
SECTION 20.16. Governing Law ............................
TESTIMONIUM .........................................................
SIGNATURES AND SEALS ................................................
ACKNOWLEDGEMENTS.....................................................
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INDENTURE OF MORTGAGE AND DEED OF TRUST, dated as of ________________,
1989, between NATIONAL HEALTHCORP L.P., a Delaware limited partnership (herein
called the "Company") and BOATMEN'S TRUST COMPANY, a __________________(herein,
together with each successor as such trustee hereunder, called the "Corporate
Trustee"), and H.E. BRADFORD (herein, together with each successor as such
trustee hereunder, called the "Individual Trustee").
Preliminary Statement
The defined terms used in this Indenture and not hereinabove defined
have the meanings indicated in Article 1.
The Company deems it necessary to borrow money for its proper corporate
purposes, to issue a series of the Bonds as evidence of such indebtedness and to
Grant (or cause to be Granted) the property described in the Granting Clauses of
this Indenture as security for the payment of the Bonds. On the date of delivery
of this Indenture, the Company is duly authorized under all applicable
provisions of law and its Limited Partnership Agreement to issue the initial
issue hereunder of Bonds in one series, to be designated % First Mortgage
Bonds due January 15, 2005 (hereinafter called the "1989 Bonds" and,
collectively with any other series of Bonds to be issued hereunder at any time,
the "Bonds"), limited to a maximum aggregate principal amount of $20,000,000
and for the equal and ratable benefit of the Holders of the 1989 Bonds, to
execute and deliver this Indenture, and to Grant (or cause to be Granted) the
property described in the Granting Clauses of this Indenture to the Trustees;
and all partnership action (including any required limited partner and/or
general partner authorization) and all consents, approvals and other
authorization of or by courts, administrative agencies or other governmental
authorities required therefor have been duly taken or obtained or will be taken
or obtained prior to subjecting such property to the Lien of this Indenture.
The 1989 Bonds and the Corporate Trustee's authentication certificate
to be endorsed on all the 1989 Bonds, are to be in substantially the following
forms and Bonds of other series hereunder are to be in substantially similar
form (with appropriate insertions, omissions, substitutions and variations as
permitted by this Indenture, as hereinafter permitted and provided):
[FORM OF FACE OF 1989 BONDS]
NATIONAL HEALTHCORP L.P.
_ % FIRST MORTGAGE BOND DUE JANUARY 15, 2005
NO.
NATIONAL HEALTHCORP L.P., a limited partnership organized and existing
under the laws of the State of Delaware (hereinafter called the "Company", which
term shall include any successor limited partnership or corporation as defined
in the Indenture referred to on the reverse side hereof), for value received,
hereby promises to pay to ______________________, or registered assigns, the sum
of ________________ Dollars on or before January 15, 2005, in such coin or
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currency Of the United States of America as at the time of payment is legal
tender for public and private debts, and to pay interest on the unpaid principal
amount hereof in like coin or currency from the Interest Payment Date to which
interest hereon has been paid immediately preceding the date hereof (unless the
date hereof is an Interest Payment Date to which interest has been paid, in
which case from the date hereof) or, if no interest has been paid on this Bond
since the Original Issue Date hereof, as defined in the Indenture referred to on
the reverse side hereof, from such Original Issue Date at the rate of _ % per
annum, payable quarterly on January 15, April 15, July 15 and October 15 of each
year, commencing January 15, 1990, until the principal hereof shall have been
paid or duly provided for. The interest so payable on any Interest Payment Date
will be paid to the person in whose name this Bond is registered at the close of
business on the first day of the month immediately preceding such Interest
Payment Date (whether or not such first day shall be a regular business day),
unless the Company shall default in the payment of interest due on such Interest
Payment Date, in which case such defaulted interest shall be paid to the person
in whose name this Bond is registered at the close of business on a Special
Record Date for the payment of such defaulted interest established by notice to
the registered holders of Bonds given by mail to said holders as their names and
addresses appear in the Bond Register (as defined in the Indenture referred to
on the reverse side hereof) not less than 10 days preceding such Special Record
Date. The principal hereof and the interest hereon shall be payable at the main
office of Boatmen's Trust Company, Corporate Trustee under the Indenture
referred to on the reverse side hereof, in St. Louis, Missouri; provided,
however, that the interest on this Bond may be payable, at the option of the
Company, by check mailed to the person entitled thereto as such person's address
shall appear on the Bond Register (including the records of any Bond
Co-Registrar).
Reference is hereby made to the further provisions of this Bond set
forth on the reverse side hereof and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Bond shall not be secured by or entitled to any benefit under the
Indenture referred to on the reverse side hereof, or be or become valid or
obligatory for any purpose, until the authentication certificate endorsed hereon
shall have been signed by Boatmen's Trust Company, Corporate Trustee under such
Indenture, or a successor trustee thereto under such Indenture.
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IN WITNESS WHEREOF, NATIONAL HEALTHCORP L.P., has caused this Bond to
be signed in its name by NHC, Inc., a Tennessee corporation, its Managing
General Partner, by its Chairman of the Board or its President or one of its
Vice Presidents by his signature or a facsimile thereof, and the corporate seal
of NHC, Inc. to be affixed or printed or engraved hereon and attested by its
Secretary or one of its Assistant Secretaries by his signature or a facsimile
thereof.
Dated: NATIONAL HEALTHCORP L.P.
By: NHC, Inc., its Managing
General Partner
By:
-----------------------------
Title:
--------------------------
[CORPORATE SEAL]
Attest:
------------------------------------
Secretary
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[FORM OF CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE]
CORPORATE TRUSTEE'S AUTHENTICATION CERTIFICATE
This Bond is one of the Bonds of the series designated, described or
provided for in the Indenture referred to on the reverse side hereof.
BOATMEN'S TRUST COMPANY
As Corporate Trustee
BY:
-----------------------------
Authorized Officer
[FORM OF REVERSE OF 1989 BOND]
NATIONAL HEALTHCORP L.P.
% FIRST MORTGAGE BOND DUE JANUARY 15, 2005
This Bond is one of a duly authorized issue of Bonds of the Company
designated as its % First Mortgage Bonds, due January 15, 2005 (herein called
the "1989 Bonds"), limited in aggregate principal amount of $20,000,000 (except
for 1989 Bonds authenticated and delivered upon transfer of, or in exchange for
or in lieu of other 1989 Bonds), all issued and to be issued only in fully
registered form without coupons under and equally and ratably secured by an
indenture of mortgage and deed of trust or deed to secure debt (herein, together
with any indenture supplemental thereto, called the "Indenture"), dated as of
October 15, 1989, duly executed and delivered by NATIONAL HEALTHCORP L.P. to
BOATMEN'S TRUST COMPANY, Corporate Trustee and H.E. BRADFORD, Individual Trustee
(the Corporate Trustee and the Individual Trustee, together with their
respective successors being herein called the "Trustees"), to which Indenture
(which is hereby made a part hereof and to all of which the holder by acceptance
hereof assents) reference is hereby made for a description of the nature and
extent of the security, the respective rights of and restrictions upon the
Company and the holders of the 1989 Bonds, the rights, limitations of rights,
duties and immunities of the Trustee in respect thereof, and the terms and
conditions upon which the 1989 Bonds are, and are to be, secured.
The 1989 Bonds are redeemable at the option of the Company as a whole
at any time, or in part from time to time, prior to maturity, commencing January
15, 1993, on not less than 30 nor more than 60 days' notice given as provided in
the Indenture, upon payment of the then applicable redemption price set forth
below under the heading "General Redemption Prices," together in each case with
accrued and unpaid interest to the date fixed for redemption, all subject to the
conditions more fully set forth in the Indenture. The General Redemption Prices
(expressed in percentages of the principal amount) applicable during the 12
months' period beginning January 1 in the years indicated below are as follows:
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General Redemption Prices
If redeemed during the 12 months' period beginning January 15,
1993 ........... 105% 1996..................... 102%
1994 ........... 104% 1997..................... 101%
1995 ........... 103% 1998 & thereafter........ 101%
Unless the 1989 Bonds have been declared due and payable prior to
maturity by reason of an Event of Default, the holder of this 1989 Bond has the
right to present it for payment prior to maturity, and the Company will redeem
the same (or any portion of the principal amount thereof which is $1,000 or an
integral multiple thereof, as the holder shall specify), subject to the
limitations that the Company will not be obligated to redeem any 1989 Bonds
during the period beginning with the original issuance of the 1989 Bonds and
ending January 15, 1993 and is not obligated to redeem during any 12 month
period ending January 15 thereafter, (i) the portion of a 1989 Bond or Bonds of
a holder exceeding an aggregate principal amount of 525,000 or (ii) 1989 Bonds
in an aggregate principal amount exceeding $700,000. Such $25,000 and $700,000
limitations are non-cumulative. If the Company, although not obligated to do so,
chooses to redeem 1989 Bonds of any holder in any such period in excess of the
$25,000 limitation, such redemption, to the extent that it exceeds the $25,000
limitation for any holder, shall not be included in the computation of the
$700,000 limitation for such period or any succeeding period.
Redemption of the 1989 Bonds presented for payment prior to December 1
next preceding the last day of each such 12 month period will be made on the
last day (January 15) of such period, beginning January 15, 1993. 1989 Bonds not
redeemed in any such period because they have not been presented prior to the
December 15, next preceding the last day (January 15) of that period or because
of the $25,000 or $700,000 limitations will be held in order of their receipt
for redemption during the following 12 month period(s) until redeemed, unless
sooner withdrawn by the holder. Subject to the $25,000 and $700,000 limitations,
the Company will upon the death of any holder, redeem 1989 Bonds within 60 days
following receipt by the Corporate Trustee of a written request therefor from
such holder's personal representative, or surviving joint tenant(s), tenant by
the entirety or tenant(s) in common. 1989 Bonds will be redeemed in order of
their receipt by the Trustee, except 1989 Bonds presented for payment in the
event of death of the holder, which will be given priority in order of their
receipt.
In the event that there shall occur a Fundamental Structural Change (as
defined in the Indenture) with respect to the Company and as a result of such
Fundamental Structural Change the Company's consolidated partners capital shall
be decreased to less than $10,000,000, then the holder of this 1989 Bond shall
have the right to present it for payment prior to maturity, and the Company will
redeem the same (or any portion of the principal amount thereof which is $1,000
or an integral multiple thereof, as the holder shall specify). The $25,000
individual and $700,000 aggregate redemption limitations shall not apply to any
such redemption. For purposes of determining consolidated partners capital after
such Fundamental Structural Change, consolidated partners capital shall be
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20
deemed to include up to $10,000,000 in fully subordinated convertible debt of
the Company then outstanding, if any, and which debt has been outstanding for at
least 12 months.
1989 Bonds may be presented for redemption by delivering to the
Corporate Trustee: (i) a written request for redemption, in form satisfactory to
the corporate Trustee, signed by the registered holder(s) or his duly authorized
representative, (ii) the 1989 Bond to be redeemed and (iii) in the case of a
request made by reason of the death of a holder, appropriate evidence of death
and, if made by a representative of a deceased holder, appropriate evidence of
authority to make such request. No particular forms of request for redemption or
authority to request redemption are necessary. The price to be paid by the
Company for all 1989 Bonds or portions thereof presented to it for redemption is
100% of the principal amount or respective portions thereof plus accrued but
unpaid interest to the date of payment. Any acquisition of 1989 Bonds by the
Company other than by redemption at the option of any holder shall not be
included in the computation of either the $25,000 or $700,000 limitation for any
period.
For purposes of a holder's request for redemption, a 1989 Bond held in
tenancy by the entirety, joint tenancy or tenancy in common will be deemed to be
held by a single holder and the death of a tenant by the entirety, joint tenant
or tenant in common will be deemed the death of a holder. The death of a person,
who, during his lifetime, was entitled to substantially all of the beneficial
ownership interests of a 1989 Bond will be deemed the death of the holder,
regardless of the registered holder, if such beneficial interest can be
established to the satisfaction of the Corporate Trustee. For purposes of a
holder's request for redemption and a request for redemption on behalf of a
deceased holder, a beneficial interest shall be deemed to exist in cases of
street name or nominee ownership, ownership under the Uniform Gifts to Minors
Act, community property or other joint ownership arrangements between a husband
and wife (including individual retirement accounts or Xxxxx [H.R. 10] plans
maintained solely by or for the holder or decedent or by or for the holder or
decedent and his spouse), and trusts and certain other arrangements where a
person has substantially all of the beneficial ownership interests in the 1989
Bonds during his lifetime. Beneficial ownership interests shall include the
power to sell, transfer or otherwise dispose of a 1989 Bond and the right to
receive the proceeds therefrom, as well as interest and principal payable with
respect thereto.
In the case of 1989 Bonds registered in the names of banks, trust
companies or broker-dealers who are members of a national securities exchange or
the National Association of Securities Dealers, Inc. ("Qualified Institutions"),
the $25,000 limitation shall apply to each beneficial owner of 1989 Bonds held
by a Qualified Institution and the death of such beneficial owner shall entitle
a Qualified Institution to seek redemption of such 1989 Bonds as if the deceased
beneficial owner were the record holder. Such Qualified Institution, in its
request for redemption on behalf of beneficial owners, must submit evidence,
satisfactory to the Corporate Trustee, that it holds 1989 Bonds on behalf of
such beneficial owners and must certify that the aggregate amount of requests
for redemption tendered by such Qualified Institution on behalf of such
beneficial owner in any such 12 month period does not exceed $25,000.
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In the case of any 1989 Bonds which are presented for redemption in
part only, upon redemption the Company shall execute and the Corporate Trustee
shall authenticate and deliver to or on the order of the holder of such 1989
Bonds, without service charge, a new 1989 Bond(s), of any authorized
denomination or denominations as requested by such holder, in aggregate
principal amount equal to the unredeemed portion of the principal of the 1989
Bonds so presented.
In the case of any 1989 Bonds or portion thereof which are presented
for redemption by a holder and which have not been redeemed at the time the
Company gives notice of its election to redeem 1989 Bonds at its option, such
1989 Bonds or portion thereof shall first be subject to redemption by the
Company at its option as described above and if any such 1989 Bonds or portion
thereof are not redeemed by the Company they shall remain subject to redemption
pursuant to presentment by the holder.
Any 1989 Bonds presented for redemption by the holder may be withdrawn
by the person(s) presenting the same upon delivery of a written request for such
withdrawal to the Corporate Trustee (a) in cases other than by reason of death
of a holder, prior to December 15, 1992, in the case of the initial period, or
prior to December 15 in the case of any subsequent 12 month period, or (b) prior
to the issuance of a check in payment thereof in the case of 1989 Bonds
presented by reason of the death of a holder.
If the Company shall deposit with the Corporate Trustee in trust funds
sufficient to pay the principal of all of the 1989 Bonds, or such of the 1989
Bonds as have been or are to be called for redemption, any premium, if any,
thereon, and all interest payable on such 1989 Bonds to the date on which they
become due and payable, at maturity or upon redemption or otherwise, and shall
comply with the other provisions of the Indenture in respect thereof, then from
and after said date (or prior thereto as provided in the Indenture), such 1989
Bonds shall no longer be entitled to any lien or benefit under the Indenture
and, as respects the Company's liability thereon, such 1989 Bonds shall be
deemed to have been paid.
To the extent permitted by, and as provided in, the Indenture, the
Company may, by entering into an indenture or indentures supplemental to the
Indenture, modify, alter, add to or eliminate in any manner any provisions of
the Indenture, or the rights of the Bondholders or the rights and obligations of
the Company, upon the consent, as in the Indenture provided, of the holders of
not less than 66 2/3% in principal amount of the 1989 Bonds then Outstanding.
Notwithstanding the foregoing, no supplemental indenture shall, without the
consent of the holder of each Outstanding 1989 Bond affected thereby, change the
Stated Maturity of the principal of, or any installment of interest on any 1989
Bond, or reduce the principal amount thereof or the rate of interest thereon,
permit the creation of any mortgage or other lien ranking prior to or on a
parity with the Lien of the Indenture, deprive the holder of any 1989 Bond of
the Lien of the Indenture, reduce the percentage of the aggregate principal
amount of Outstanding 1989 Bonds, the consent of the holders of which is
required for any supplemental indenture or for any waiver of compliance with
certain provisions of the Indenture, or modify any of the provisions of the
Indenture relating to the foregoing, all except as provided in the Indenture.
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Notwithstanding the foregoing, no consent of the Bondholders shall be required
in order for the Company to enter into any supplemental indentures for the
purpose of adding, releasing and/or substituting property subject to the Lien of
the Indenture pursuant to the terms of the Indenture.
If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of and all interest accrued on all the
1989 Bonds at any such time Outstanding under the Indenture may be declared, and
upon such declaration shall become, immediately due and payable, in the manner,
with the effect and subject to the conditions provided in the Indenture. The
Indenture provides that such declaration and its consequence may be waived by
the holders of a majority in principal amount of the 1989 Bonds then
Outstanding.
The 1989 Bonds are issuable as registered Bonds without coupons in
denominations of integral multiples of $1,000. Subject to the provisions of the
Indenture, the transfer of this 1989 Bond is registerable by the registered
holder hereof, in person or by his attorney duly authorized in writing, at the
main office of Boatmen's Trust Company, in St. Louis, Missouri, on books of the
Company to be kept for that purpose at said office, upon surrender and
cancellation of this 1989 Bond duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Corporate
Trustee, and thereupon a new fully registered Bond of the same series, of the
same aggregate principal amount and in authorized denominations, will be issued
to the transferee or transferees in exchange herefor; and this Bond, with or
without others of the same series, may in like manner be exchanged for one or
more new fully registered Bonds of the same series of other authorized
denominations but of the same aggregate principal amount; all as provided in the
Indenture. No service charge shall be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge or expense that may be imposed in relation thereto.
Prior to due presentment for registration of transfer, the Company, the
Trustees, or either of them, any Bond Co-Registrar, or any agent of the Company,
the Trustees or either of them may deem and treat the person in whose name this
1989 Bond shall be registered at any given time upon the Bond Register as the
absolute owner of this 1989 Bond for the purpose of receiving any payment of, or
on account of, the principal and interest on this 1989 Bond and for all other
purposes whether or not this 1989 Bond be overdue; and neither the Company nor
the Trustees, nor either of them, nor any agent of the Company, the Trustees or
either of them shall be bound by any notice to the contrary.
No recourse under any obligation, covenant or agreement contained in
the Indenture or in any Bond, or because of the creation of the indebtedness
represented hereby, shall be had against any organizer, any past, present or
future subscriber to the limited partnership interests, any limited partner of
the Company, or any officer or director of any corporate general partner of the
Company, as such under any rule of law, statute or constitution.
In any case where the date fixed for the payment of principal or
interest on any of the 1989 Bonds or the date fixed for redemption thereof shall
not be a
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business day, then payment of such principal or interest need not be made on
such date, but may be made on the next succeeding business day with the same
force and effect as if made on the date fixed for such payment or redemption,
and no interest shall accrue for the period from or after such date.
This 1989 Bond shall be governed by the laws of the State of Tennessee as
to all matters, including but not limited to matters of validity, construction,
effect and performance.
All terms used in this 1989 Bond which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[END OF FORM OF BONDS]
All acts and things necessary to make the Bonds, when executed by the
Company and authenticated and delivered by the Corporate Trustee as provided in
this Indenture, the valid, binding and legal obligations of the Company, and to
constitute these presents a valid indenture and agreement according to its
terms, have been done and performed, and the execution of this Indenture and
the issue hereunder of the Bonds have in all respects been duly authorized, and
the Company, in the exercise of the legal right and power in it vested,
executes this Indenture and proposes to make, execute, issue and deliver the
Bonds;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: That the Company, in
consideration of the premises, the acceptance by the Trustees of the trusts
hereunder, the purchase and acceptance of the Bonds by the Holders thereof, and
of other good and valuable consideration, the receipt whereof is hereby
acknowledged, and in order to secure the payment of the principal of, premium,
if any, and interest and any other sums payable on, the Bonds, according to
their tenor and effect, and to declare the provisions upon and subject to which
the Bonds are to be issued and secured, has executed and delivered this
Indenture, and has Granted and by this Indenture does Grant unto the Trustees
(but in the case of the Corporate Trustee, only to the extent of its legal
qualification under the laws of the particular jurisdiction to receive and hold
property located therein for the purposes hereof), and to their successors in
the trusts hereunder and assigns forever, the following, and all of the
Company's estate, right, title, interest, claim and demand therein, thereto and
thereunder (including, without limitation, any and all rights of the Company or
with respect thereto to make claim for, collect, receive and receipt for any
and all income, revenues, issues and profits and other moneys payable or
receivable thereunder or with respect thereto (other than accounts receivable
and payments under third party reimbursement programs), to bring Proceedings
thereunder or for the specific or other enforcement thereof or with respect
thereto, in the name of the Company, or otherwise, and to do any and all things
which the Company is or may be or become entitled to do thereunder or with
respect thereto; provided, however, that no obligation of the Company under the
provisions thereof or with respect thereto shall be impaired or diminished by
virtue hereof, nor shall any such obligation be imposed upon the trustees):
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GRANTING CLAUSE FIRST
DEPOSITED CASH
The Deposited Cash delivered to the Trustee contemporaneously with the
execution of this indenture as referred to in Section 5.01 hereof or at any
time and from time to time delivered to or held by the Trustee pursuant to this
Indenture.
GRANTING CLAUSE SECOND
Mortgaged and Pledged Property
All right, title and interest of the Company, whether now owned or
hereafter acquired, in and to real property described on Exhibit A to this
Indenture attached hereto, and any other property which may from time to time,
by delivery to the Trustees or by Mortgage or any other instrument, be
subjected to the Lien of this Indenture by the Company or any Operating
Subsidiary, or otherwise with the consent of the Company, or which may come
into the possession or become subject to the control of the Trustees and to be
subject to the Lien of the Indenture pursuant to Articles 5 and 10 hereof,
including without limitation any and all right, title and interest, under
leases or otherwise, in and to all buildings, structures, improvements and
appurtenances now standing, or at any time hereafter constructed or placed upon
said property or any part thereof, including all their right, title and
interest in and to all furniture, furnishings, equipment and fixtures of every
kind and nature whatsoever on said premises or in any building now or hereafter
standing on said property, or any part thereof, and the reversion or
reversions, remainder or remainders, in and to said property and each and every
part thereof, and together with the entire interest of the Company or any
Operating Subsidiary, in and to all and singular the tenements, hereditaments,
easements, rights, privileges and appurtenances to said property belonging or
in any wise appertaining thereto, and all their right, title and interest in
and to any streets, ways, alleys, or strips of land adjoining said property or
any part thereof, and all the estate, right, title, interest, claim or demand
whatsoever of the Company or any Operating Subsidiary either in law or in
equity, in possession or expectancy, of, in and to said property, it being the
intention of the parties hereto that so far as may be permitted by law, all
tangible property now owned or hereafter acquired by the Company or any
Operating Subsidiary, or in which either of same has an interest, and affixed
to, attached to, placed upon, or used in any way in connection with the
enjoyment, occupancy or operation of said property shall be deemed to be, and
shall be considered as fixtures and appurtenances to, such real property.
GRANTING CLAUSE THIRD
RENTS, ISSUES, PROFITS AND OTHER INCOME
All rents, issues, profits and other incomes (other than accounts
receivable and payments under third party reimbursement programs) from the
property and interests in property now or hereafter subject to the Lien of this
Indenture, or intended so to be.
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GRANTING CLAUSE FOURTH
Other and After-Acquired Property
Any and all moneys and other property which may from time to time, by
delivery to the Trustees or by any instrument, be subjected to the Lien of this
Indenture by the Company or by anyone on its behalf or with its consent, or
which may come into the possession or be subject to the control of the Trustees
pursuant to this Indenture or any indenture supplemental hereto, it being the
intention of the Company and the Trustees and it being hereby agreed by them
that all property hereafter acquired by the Company and required to be
subjected to the Lien of this Indenture or intended so to be shall forthwith
upon the acquisition thereof by the Company be as fully embraced within the
Lien of this Indenture as if such property were now owned by the Company and
were specifically described in this Indenture and Granted hereby or pursuant
hereto; and the Trustees are hereby authorized to receive any and all such
property as and for additional security for the payment of the Bonds and all
other sums secured or intended to be secured hereby.
EXCEPTIONS AND RESERVATIONS
Notwithstanding any provision herein to the contrary, unless and until an
Event of Default shall have occurred and be continuing, it is not intended to
subject to the Lien of this Indenture, and such Grant shall not be deemed to
apply to any rents, issues, profits or other income from the Mortgaged and
Pledged Property; but, upon the happening and during the continuance of any
Event of Default, all such rents, issues, profits and other income (other than
accounts receivable and payments under third party reimbursement programs shall
immediately become subject to the Lien of this Indenture to the extent
permitted by law and the Trustees shall be entitled to receive and collect all
sums payable thereunder and to apply the net moneys so received as in Article
12 provided.
TO HAVE AND TO HOLD all and singular the Trust Estate, whether now owned
or held or hereafter acquired, unto the Trustees, their successors in the
trusts hereunder and assigns, forever;
SUBJECT, HOWEVER, to Permitted Encumbrances;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth, for the
equal pro rata benefit and security of all and every of the Bonds issued and to
be issued hereunder, or any of them, in accordance with the terms of this
Indenture, without preference, priority or distinction as to lien of any of
said Bonds over any others thereof by reason of priority in the time of the
issue or negotiation thereof, or otherwise howsoever, it being intended that
the lien and security of all of said Bonds of all series issued or to be issued
hereunder shall take effect from the date of this Indenture, and that the lien
and security of this Indenture shall take effect from the date hereof as though
all of the Bonds of a series were actually authenticated and delivered and
issued upon such date.
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PROVIDED, HOWEVER, and these presents are upon the condition that if the
Company, its successors or assigns, as more fully provided in this Indenture,
shall pay or cause to be paid, the principal of and the interest on said Bonds,
together with the premium, if any, payable on such of said Bonds as may have
been called for redemption prior to Stated Maturity, or shall provide, as
permitted hereby, for the payment thereof by depositing with the Corporate
Trustee the entire amount due or to become due thereon for principal, interest
and premium, if any, and if the Company shall also pay or cause to be paid all
other sums payable hereunder by it, then this Indenture and the estate and
rights hereby granted shall cease, determine and be void.
IT IS HEREBY COVENANTED, DECLARED AND AGREED by and between the parties
hereto that all Bonds to be authenticated, delivered and issued hereunder are,
and all moneys and other property subject or to become subject hereto is, to be
held subject to the further covenants, conditions, uses and trusts hereinafter
set forth, and the Company, for itself and its successors and assigns, does
hereby covenant and agree to and with the Trustees and their successor or
successors in such trust, for the equal and ratable benefit of those who shall
be the lawful Holders of the Bonds or any of them as follows:
ARTICLE 1.
DEFINITIONS
SECTION 1.01. The terms defined in this Article 1 shall except as herein
otherwise expressly provided) for all purposes of this Indenture, have the
respective meanings specified in this Article and include the plural as well as
the singular. Any term defined in the Trust Indenture Act of 1939, either
directly or by reference therein, and not defined in this Indenture, unless the
context otherwise specifies or requires, shall have the meaning assigned to
such term therein as in force on the date of this Indenture.
"Act" when used with respect to any Bondholder has the meaning specified
in Section 20.05.
"Affected" has the meaning specified in Section 19.02.
"Affiliate" means any General Partner of the Company and any other person
which directly or indirectly controls, is controlled by, or is under direct or
indirect common control with, the Company. A person shall be deemed to control
a corporation, partnership or other entity, for the purpose of this definition,
if such person possesses, directly or indirectly, the power to direct or cause
the direction of the management and policies of such corporation, partnership
or other entity, whether through the ownership of voting securities, by
contract, or otherwise.
"Application" means a written instrument requesting the Trustees, or one
of them, to take action under a section of this Indenture specified in such
instrument, and shall consist of, and not be deemed to be made or complete
until the Trustees, or one of them, as the case may be, shall have been
furnished with such funds, instruments, certificates and opinions as may be
required by this
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Indenture to establish the right of the person making such Application to have
such action taken by the Trustees, or one of them, and shall be signed in the
name of the Company by its Managing General Partner, by the Chairman of the
Board, Vice Chairman of the Board, President or any Vice President of the
Managing General Partner and its Treasurer, Assistant Treasurer, Secretary or
Assistant Secretary and delivered to the Corporate Trustee.
"Authenticating Agent" means the agent of the Corporate Trustee which at
the time shall be appointed and acting pursuant to Section 16.16.
"Board of Directors" or "Board" mean either the Board of Directors of the
Managing General Partner of the Company or any committee of such Board of
Directors, however designated, authorized to exercise the powers of such Board
of Directors in respect of the matters in question.
"Bond" or "Bonds" mean one or more of the bonds comprising the Company's
issue of First Mortgage Bonds issued, authenticated and delivered under this
Indenture.
"Bond Co-Registrar" has the meaning specified in Section 2.05.
"Bond Register" and "Bond Registrar" have the respective meanings
specified in Section 2.05.
"Bondable Amount" means, with respect to the property described in an
Officers' Certificate delivered to the Corporate Trustee pursuant to Section
5.03, the amount so specified in such Officers' Certificate as the Bondable
Amount of such Property; provided, however, that (i) for purposes of property
upon which the Company shall construct all or substantially all of the
improvements within six (6) months prior to the time such property is to become
a Mortgaged and Pledged Property, and for purposes of improved property
purchased in an arm's length transaction by the Company or an Operating
Subsidiary after the date of this Indenture that is to become a Mortgaged and
Pledged Property within six (6) months after the date of such purchase, the
Bondable Amount so specified shall not be greater than an amount equal to the
greater of 80% of (A) the Capitalized Cost of such Property and (B) the Fair
Value of such Property; (ii) for purposes of the Mortgaged and Pledged Property
described on Exhibit A attached hereto, Bondable Amount so specified shall be
the value set forth on such Exhibit A with respect to each such Mortgaged and
Pledged Property; (iii) for purposes of property upon which the Company shall
construct improvements with a Capitalized Cost in excess of $400,000 after such
property becomes a Mortgaged and Pledged Property, the Bondable Amount of such
improvements so specified shall not be greater than an amount equal to the
greater of 80% of (A) the Capitalized Cost of such improvement and (B) the Fair
Value of such improvements; and (iv) for purposes of property that is not
described in subdivisions (i), (ii) or (iii) hereof, the Bondable Amount so
specified shall be an amount equal to 80% of the Fair Value of such property.
"Bondholder," "Holder of the Bonds," "Holder" or "holder" or other similar
terms mean any person in whose name, as of any particular date, a Bond is
registered on the Bond Register.
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"business day" means any day which is not a Saturday, Sunday or other day
on which banking institutions in the State in which the Corporate Trustee shall
maintain its principal office are authorized or obligated by law or required by
executive order to close.
"capital stock" includes any and all shares, interests, participations or
other equivalents (however designated) of corporate stock of any corporation.
"Capitalized Cost" means, with respect to the Mortgaged and Pledged
Property, the aggregate of the costs incurred (otherwise than by incurring, or
acquiring property subject to, obligations or indebtedness secured by purchase
money mortgages, other purchase money liens, purchase money security
agreements, chattel mortgages, conditional sale agreements or other title
retention agreements) by the owner of such Mortgaged and Pledged Property, for
and in connection with the acquisition, construction or development of such
Mortgaged and Pledged Property, and charged and properly chargeable to the
land, buildings and building improvements accounts of such owner in accordance
with generally accepted accounting principles, including, without limitation,
charges for labor, salaries, overhead, materials, supplies, machinery,
equipment, furniture, furnishings, apparatus, interest during construction and
commitment fees, taxes, engineering, accounting and legal expenses,
superintendence, insurance, casualty liabilities, rentals, start-up expenses,
financing charges and expenses and all other items in connection with such
acquisition, construction or development and so charged and properly so
chargeable, after deducting therefrom (A) all net amounts realized by such
owner as salvage on any items the cost of which shall have been included in
Capitalized Cost, (B) all net proceeds of insurance in respect of loss or
damage to any items the cost of which shall have been included in Capitalized
Cost and (C) all provisions for amortization recorded on the Company's books,
depreciation, depletion and obsolescence which shall have been included in
Capitalized Cost; provided, however, that in determining Capitalized Cost,
operating or maintenance expenses and interest on any indebtedness except
interest during construction shall not be included; and provided further, that
Capitalized Cost shall not include fees and expenses incurred in connection
with the offer and sale of Bonds and deducted from the proceeds from the sale
thereof pursuant to Section 5.01 hereof.
"Certified Resolution" means a copy of a resolution or resolutions
certified, by the Secretary or an Assistant Secretary of the corporation
referred to, as having been duly adopted by the Board of Directors of such
corporation or any committee of such Board of Directors, however designated,
authorized to exercise the powers of such Board of Directors in respect of the
matters in question and to be in full force and effect on the date of such
certification.
"common stock" means any capital stock of a corporation which is not
preferred as to the payment of dividends or the distribution of assets on any
voluntary or involuntary liquidation over shares of any other class of capital
stock of such corporation.
"Company" shall mean and include National HealthCorp L.P. and also any
limited partnership that shall have become a successor limited partnership in
compliance with Article 15.
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"Company Order" and "Company Request" mean, respectively, a written order
or request signed in the name of the Company by its Managing General Partner,
by the Chairman of the Board, Vice-Chairman of the Board, President or any Vice
President of the Managing General Partner and its Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary and delivered to the Corporate
Trustee.
"Current," when used with respect to an M.A.I. Appraisal or any
certificate or opinion relating to the value of any property, means an M.A.I.
Appraisal, certificate or opinion, as the case may be, dated as of a date not
more than 180 days (or not more than ten days in the case of any certificate or
opinion relating to the value of securities) prior to the delivery thereof
pursuant to any provision of this Indenture, which M.A.I. Appraisal,
certificate or opinion shall reflect the values reported therein as of its
date.
"Daily Newspaper" shall mean a newspaper in the English language of
general circulation in the relevant area and customarily published on each
business day of the year, whether or not such newspaper is published on
Saturdays, Sundays and legal holidays. Whenever successive weekly publications
in a Daily Newspaper are required hereunder, they may be made (unless otherwise
expressly provided herein) on the same or different days of the week and in the
same or different Daily Newspapers.
"date of this Indenture" means October 15, 1989.
"day" means a calendar day.
"Debt," with respect to any corporation or partnership, shall include all
obligations of such corporation or partnership, contingent and otherwise, which
is in accordance with generally accepted accounting principles would be
classified upon a balance sheet of such corporation or partnership as
liabilities of such corporation or partnership, other than deferred income
taxes.
"Default" means any act or occurrence of the character specified in
Section 12.01, but excluding any notice or lapse of time, or both, specified
therein.
"Defaulted Interest" has the meaning specified in Section 2.01.
"Deposited Cash" means cash deposited with, or paid to, the Corporate
Trustee under the provisions of Sections 5.01, 6.10, 10.02 and 10.03, but in
the absence of an Event of Default, shall not include the net income or profit
realized by the Corporate Trustee from investment of Deposited Cash pursuant to
Section 20.02.
"Event of Default" means any act or occurrence of the character specified
in Section 12.01.
"Executive Officer" means, with respect to any corporation or the Company,
the Chairman of the Board, the Vice Chairman of the Board, the President, the
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Executive Vice President, any other Vice President or the Treasurer of such
corporation.
"Fair Value," when used with respect to any property or properties, means
the fair value of the parcel of land, buildings and improvements thereon, as
shown on a Current M.A.I. Appraisal.
"Fundamental Structural Change" means the occurrence of any one or more of
the following: (i) the Company or any other person (other than any person that
owns 5% or more of the Units as of the date of this Indenture) which owns,
directly or indirectly, a majority of the Units of the Company (each such
person being a "Holding Company") shall consolidate with or merge into any other
corporation or partnership, or convey, transfer or lease all or substantially
all of its assets to any person; (ii) any person shall consolidate with or
merge into the Company or any Holding Company pursuant to a transaction in
which at least a majority of the Units of the Company or the common stock or
partnership interests of such Holding Company then outstanding are changed or
exchanged; (iii) any person shall purchase or otherwise acquire in one or more
transactions beneficial ownership of 50% of more of the Units of the Company or
of the common stock or partnership interests of any Holding Company outstanding
on the date immediately prior to the last such purchase or other acquisition;
(iv) the Company or any Subsidiary shall purchase or otherwise acquire in one
or more transactions during the 12 month period preceding the date of the last
such purchase or other acquisition an aggregate of 30% or more of the Units of
the Company outstanding on the date immediately prior to the last such purchase
or acquisition; (v) any Holding Company or any Subsidiary of such Holding
Company (including the Company) shall purchase or otherwise acquire in one or
more transactions during the 12 month period preceding the date of the last
such purchase or other acquisition an aggregate of 30% or more of the common
stock of such Holding Company outstanding on the date immediately prior to the
last such purchase or other acquisition; or (vi) the Company or any Holding
Company shall make a distribution of cash, property or securities (other than
regular periodic cash distributions at a rate which is consistent with past
practice) to holders of Units or to holders of common stock of such person
(including by means of dividend, reclassification or recapitalization) which,
together with all other such distributions during such 12 month period
preceding the date of such distribution, has an aggregate fair market value in
excess of an amount equal to 30% of the fair market value of the Units of the
Company or the common stock of such person outstanding on the date immediately
prior to such distribution; provided, however, that notwithstanding the
foregoing, "Fundamental Structural Change" shall not include the
reincorporation of the Company as a corporation where all Unitholders become
shareholders on a pro rata basis and no other persons other than option holders
or holders of convertible securities of the Company become shareholders in such
transaction.
"General Partner" means each of NHC, Inc., a Tennessee corporation and the
Managing General Partner of the Company; National Health Corporation, a
Tennessee corporation and the Administrative General Partner of the Company;
and W. Xxxxxx Xxxxx, the Special General Partner of the Company.
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"Grant" means grant, bargain, sell, alienate, mortgage, pledge, deposit,
grant a security interest in, convey, assign, transfer and set over and the
term "Granted" has the meaning correlative to the foregoing.
"Hazardous Substances" means any substance or material defined or
designated as hazardous or toxic waste, hazardous or toxic material, a
hazardous or toxic substance, or other similar term, by any federal, state or
local environmental statute, regulation or ordinance presently in effect or
that may be promulgated in the future, as such statutes, regulations or
ordinances may be amended from time to time, including, without limitation,
asbestos in friable form and petroleum products.
"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.
"Independent," when applied to any described person, shall mean such
person who (1) is in fact independent, (2) does not have any substantial
interest, direct or indirect, in the Company, in an Operating Subsidiary, in
any other obligor upon the Bonds, or in any Affiliate of the Company, an
Operating Subsidiary or any such obligor, and (3) is not connected with the
Company, with an Operating Subsidiary, with any such other obligor, or with any
Affiliate of the Company, of an Operating Subsidiary or of any such other
obligor, as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions. Whenever it is herein provided
that any such independent person's opinion or certificate shall be furnished to
the Corporate Trustee, such person shall be appointed by a Certified Resolution
and approved by the Corporate Trustee in the exercise of reasonable care and
such opinion or certificate shall state that the signer is "Independent" within
the meaning thereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Bonds.
"lessor" shall mean any lessor of a parcel or parcels of land which are
leased by the Company or a Subsidiary under a lease wherein such lessor agrees
to subordinate his interest therein to the Lien of this Indenture as security
for all the Bonds.
"Lien of this Indenture" and terms of like import mean the security title
or other interest or charge Granted to the Trustees by this Indenture or any
deed to secure debt (including the after-acquired property clauses hereof) or
by any subsequent Grant hereunder or pursuant hereto or by any deed to secure
debt to the Trustees (whether made by the Company, an Operating Subsidiary or
any other person) or otherwise created, constituting any property a part of the
security held by the Trustees for the equal and ratable benefit of the Holders
of the Bonds.
"M.A.I. Appraisal" shall mean a written report of an appraisal by an M.A.I.
Appraiser showing the Fair Value of the parcel of land, buildings and
improvements thereon. Each M.A.I. Appraisal shall include the statements
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provided for in Section 20.04 hereof, if and to the extent required by the
provisions thereof.
"M.A.I. Appraiser" shall mean an Independent appraiser, selected by the
Company and approved by the Corporate Trustee, (a) who is a Member of the
American Institute of Real Estate Appraisers, or any successor of such
Institute or, in the event that such Institute or successor shall no longer
exist, any other comparable association of real estate appraisers satisfactory
to the Corporate Trustee, and (b) after July 1, 1991, who is certified as a
certified real estate appraiser under the laws of the state in which the
property is located (if such certification laws are in effect). The acceptance
by the Corporate Trustee of a report by an appraiser shall be sufficient
evidence of such approval.
"main office" with reference to the Corporate Trustee shall mean the
principal corporate trust office of the Trustee, which office is, on the date
of this Indenture, located at 000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx.
"maturity" or "mature," when used with respect to any Bond, means the
date on which the principal of such Bond becomes due and payable as therein or
herein provided, whether at Stated Maturity or by declaration of acceleration,
call for redemption at the option of the Company pursuant to Section 3.01(E) or
presentment for repayment as provided in Section 3.01(F) hereof, or otherwise.
"Mortgage" means any mortgage, deed of trust, deed to secure debt,
security agreement or other similar instrument, as the same may be amended or
supplemented from time to time by a supplemental mortgage or any other
instrument supplemental thereto as permitted thereby and hereby, relating to a
Property, from the Company or an Operating Subsidiary, as the case may be, to
the Trustees and for the equal and ratable benefits of the holders of Bonds
pursuant to this Indenture.
"Mortgaged and Pledged Property" means as of any particular time all
moneys and other property which at said time is subject or intended to be
subject to the Lien of this Indenture whether such Lien be created by these
presents (including the after-acquired property clauses hereof) or by
subsequent conveyance or delivery to or pledge with the Trustees hereunder or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, President or a Vice President and the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Managing General
Partner of the Company, and delivered to the Corporate Trustee. Each such
certificate, to the extent required, shall comply with the provisions of
Section 20.04 hereof. Wherever this Indenture requires that an Officers'
Certificate be signed also by an engineer or an accountant or other expert,
such engineer, accountant or other expert (except as otherwise expressly
provided in this Indenture) may be in the employ of the Managing General
Partner of the Company and shall be acceptable to the Corporate Trustee.
"Operating Subsidiary" means any subsidiary of the Company which acquires
any part of the Trust Estate.
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"Opinion of Counsel" means a written opinion of counsel who may be counsel
for the Company and shall be acceptable to the Corporate Trustee. Each such
opinion to the extent required, shall comply with the provisions of Section
20.04 hereof.
"Original Issue Date" with respect to any Bond (or portion thereof) means
the earlier of (a) the date of such Bond or (b) the date of any Bond (or
portion thereof) for which such Bond was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
"Outstanding" means, as of the date of determination, all Bonds which
theretofore shall have been authenticated and delivered by the Corporate
Trustee under this Indenture, except (1) Bonds theretofore cancelled by the
Corporate Trustee or delivered to the Corporate Trustee for cancellation, (2)
Bonds or portions thereof for the payment or redemption of which money in the
necessary amount shall have been deposited with the Corporate Trustee or any
paying agent in trust for the Holders of the Bonds; provided, however, that in
the case of redemption, any notice required shall have been given or have been
provided for to the satisfaction of the Corporate Trustee, and (3) Bonds in
exchange or substitution for and/or in lieu of which other Bonds have been
authenticated and delivered under any of the provisions of this Indenture.
Notwithstanding the foregoing provision of this paragraph, Bonds in exchange or
substitution for and/or in lieu of which other Bonds have been authenticated
and delivered under Section 2.09 hereof and which have not been surrendered to
the Corporate Trustee for cancellation or the payment of which shall not have
been duly provided for, shall be deemed to be Outstanding, In determining
whether the Bondholders of the requisite principal amount of Bonds Outstanding
have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Bonds owned by the Company or any other obligor upon the
Bonds or any Affiliate of the Company, including any Subsidiary, or such other
obligor shall be disregarded and deemed not Outstanding, except that, in
determining whether the Corporate Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Bonds which the Corporate Trustee knows to be so owned shall be
disregarded. Bonds so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Corporate Trustee the pledgee's right so to act with respect to such Bonds and
that the pledgee is not the Company or any other obligor upon the Bonds or any
Affiliate of the Company or a Subsidiary or such other obligor.
"paying agent" means any person authorized by the Company to pay the
principal or, premium, if any, and interest on any bonds on behalf of the
Company.
"Permitted Encumbrances" means, with respect to any property, but only to
the extent applicable to such property: (A) rights reserved to or vested in any
municipality or public authority by the terms of any right, power, franchise,
grant, license, permit or provision of law affecting such property to (1)
terminate such right, power, franchise, grant, license or permit, provided that
the exercise of such right would not materially impair the use of such property
or materially adversely affect the value thereof or (2) purchase, condemn or
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appropriate such property; (B) any liens thereon for taxes, assessments and
other governmental charges and any liens of mechanics, materialmen and laborers
for work or services performed or materials furnished in connection with such
property, which are not due and payable or which are not delinquent or which,
or the amount or validity of which, are being contested in good faith by proper
Proceedings or otherwise preliminary to the institution of a Proceeding; (C)
easements, rights-of-way, servitudes, restrictions and other minor defects,
encumbrances and irregularities in the title to such property (including,
without limitation, leases in the ordinary course of business if, in the case
of any such lease of any portion of the Property which is subject to the Lien
of this Indenture (other than immaterial personal property leases), such lease
is subordinate to the Lien of this Indenture) which do not materially impair
the use of such property as a long-term health care center or materially
adversely affect the value thereof as a long-term health care center; (D)
rights reserved to or vested in any municipality or public authority to control
or regulate such property or to use property in any manner, which rights do not
materially impair the use of such property or materially adversely affect the
value thereof; (E) the Lien of this Indenture and of any Mortgage; (F) liens
which are by their terms made expressly junior to the Lien of this Indenture;
(G) Uniform Commercial Code financing statements with respect to furniture,
fixtures or equipment that encumber such property at the time such property
becomes subject to the Lien of this Indenture; and (H) any lien for the
satisfaction and discharge of which a sum of money deemed adequate by the
Corporate Trustee is on deposit with the Corporate Trustee.
"person" means any individual, partnership, corporation, trust,
unincorporated association, joint venture, government or any department or
agency thereof, or any other entity.
"place of payment" means such place as designated in Section 2.01 hereof.
"predecessor Bond" of any particular Bond means every previous Bond
evidencing all or a portion of the same debt as that evidenced by such
particular Bond; and, for the purposes of this definition, any Bond
authenticated and delivered under Section 2.09 in lieu of a lost, destroyed or
stolen Bond shall be deemed to evidence the same debt as the lost, destroyed or
stolen Bond.
"Proceeding" means any suit in equity, action at law or other legal,
equitable, administrative or similar proceeding.
"Redemption Date," when used with respect to any Bond to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Regular Record Date" has the meaning specified in Section 2.0.
"Responsible Officers" of the Corporate Trustee means the Chairman of the
Board of Directors, every Vice Chairman of the Board of Directors, the
President, the Chairman or any Vice Chairman of the Executive Committee of the
Board, the Chairman of the Trust Committee, every Vice President, every
Assistant Vice President, the Cashier, every Assistant Cashier, the Secretary,
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every Assistant Secretary, the Treasurer, every Assistant Treasurer, every
Trust officer, every Assistant Trust Officer, the Controller, every Assistant
Controller, and every other officer and assistant officer of the Corporate
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be any such officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such
corporate trust matter is referred because of his knowledge and familiarity
with a particular subject.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Corporate Trustee pursuant to Section 2.01.
"Stated Maturity," when used with respect to any Bond or any installment
of interest thereon, means the date specified in such Bond as the fixed date on
which the principal of such Bond or such installment of interest is due and
payable.
"Subsidiary" means any corporation or limited partnership more than 50% of
whose shares of stock or limited partnership units having general voting power
under ordinary circumstances to elect a majority of the board of directors,
managers or trustees of such corporation, or general partner in the case of a
limited partnership, irrespective of whether or not at the time stock or
limited partnership units of any other class or classes shall or might have
voting power by reason of the happening of any contingency, is owned or
controlled directly or indirectly by the Company.
"supplemental indenture" or "indenture supplemental hereto" mean any
indenture hereafter duly authorized and entered into in accordance with the
provisions of this Indenture.
"Trustees" means the Corporate Trustee and the Individual Trustee. Unless
otherwise expressly provided otherwise in this Indenture or unless the context
otherwise expressly requires, any reference to the Trustees shall refer to
either of them. The powers of the Individual Trustee are limited by Section
16.13(D) hereof.
"Trust Estate" means all moneys and other property subject or intended to
be subject to the Lien of this Indenture as of any particular time.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as in force
at the date of which this instrument was executed.
"Unit" means any limited partnership interest of the Company.
All accounting terms used in this indenture shall have the meanings
assigned to them in accordance with generally accepted accounting principles
and practices employed at the time by the Company.
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ARTICLE 2.
DESCRIPTION, EXECUTION, REGISTRATION, TRANSFER
AND EXCHANGE OF BONDS
SECTION 2.01. All Bonds shall be issued in definitive, fully registered
form without coupons. The Bonds, at the election of the Board of Directors as
authorized by a Certified Resolution, may be issued in one or more series,
shall be designated generally as _ % First Mortgage Bonds of the Company. With
respect to the Bonds of any particular series, the Company may incorporate in,
add to or delete from the general title of such Bonds any words, letters or
figures designed to distinguish that series, as the Board of Directors may
determine. Each Bond shall bear on the face thereof the designation so selected
for the series to which it belongs.
All Bonds shall be dated the date of authentication thereof by the
Corporate Trustee and shall bear interest, payable quarterly, from the Interest
Payment Date to which interest on the Bonds of the respective series being
authenticated has been paid next preceding the authentication date thereof,
unless such authentication date is an Interest Payment Date to which interest
has been paid, in which case they shall bear interest from such authentication
date, or if no interest has been paid on such Bonds of the respective series
being authenticated since the Original Issue Date of such Bonds, from such
Original Issue Date or such other date as shall be fixed for the respective
series of Bonds by this Indenture or any indenture supplemental hereto creating
a series of additional Bonds. Notwithstanding the foregoing, so long as there
is no existing default in the payment of interest on Bonds of a particular
series, all Bonds of such series authenticated by the Corporate Trustee between
the Regular Record Date (as hereinafter defined) for any Interest Payment Date
for such series and such Interest Payment Date shall bear interest from such
Interest Payment Date; provided, however, that if and to the extent that the
Company shall default in the payment of the interest due on such Interest
Payment Date, then any such Bond shall bear interest from the Interest Payment
Date next preceding the date of such Bond of such series to which interest on
the Bonds has been paid, or if no interest has been paid on such Bonds since
the Original Issue Date of such Bonds from such Original Issue Date or from
such other date as shall have been fixed for the respective series of Bonds by
this Indenture or any supplemental indenture hereto creating such series of
additional Bonds as aforesaid.
Interest on any Bond 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 Bond (or one or more predecessor Bonds) is registered at the close of
business on the Regular Record Date for such interest as specified in this
Section 2.01. The term "Regular Record Date" with respect to (A) a regular
quarterly Interest Payment Date for the Bonds shall mean the close of business
on the first day of the month (whether or not a business day) next preceding
such Interest Payment Date and (B) a regular Interest Payment Date as shall be
established as such record date by the supplemental indenture creating such
series of additional Bonds; provided, however, that such date shall not be more
than 20 nor less than ten days preceding such Interest Payment Date.
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Any interest on any Bond 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 registered 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 clause (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Bonds (or their respective
predecessor Bonds) are registered at the close of business on a
special record date (the "Special Record Date") for the payment of
such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Corporate Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Bond and
the date of the proposed payment, and at the same time the Company
shall deposit with the Corporate 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 Corporate
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 Corporate Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not
more than 20 nor less than ten days prior to the date of the proposed
payment and not less than 35 days after the receipt by the Corporate
Trustee of the notice of the proposed payment. The Corporate 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
Bondholder as his address as it appears in the Bond Register, not
less than ten days prior to such Special Record Date. The Corporate
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in a
Daily Newspaper in each place of payment, but such publication shall
not be a condition precedent to the establishment of such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the persons in
whose names the Bonds (or their respective predecessor Bonds) are
registered on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Bonds may be listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Corporate Trustee of the proposed payment pursuant
to this clause, such payment shall be deemed practicable by the
Corporate Trustee.
Subject to the foregoing provisions of this Section, each Bond
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Bond shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Bond.
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The principal of and the premium, if any, and the interest on the Bonds
shall be paid at the office or agency of the Company which shall be located at
the main office of the Corporate Trustee (the "place of payment") in such coin
or currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts; provided, however,
that interest on any Bonds may be payable, at the option of the Company, by
check mailed to the person entitled thereto as such person's address shall
appear on the Bond Register.
SECTION 2.02. Subject to Section 2.01 and to the provisions of this
Indenture with respect to the Bonds, the Bonds of any series, as may be
determined by the Board of Directors in a Certified Resolution:
(A) Shall bear interest at such rate or rates and be payable as to
principal, premium, if any, and interest at such time or times, and at
such place or places, as may be so determined and expressed in such Bonds;
(B) Shall be in such denominations as may be so determined;
(C) May be limited as to the maximum principal amount thereof which
may be authenticated and delivered by the Corporate Trustee or which may
be at any one time Outstanding, and an appropriate insertion in respect of
such limitation may, but need not, be made in the Bonds of such series;
(D) May contain such other lawful provisions, if any, as so
determined with respect to the payment of principal or interest or both
thereby represented without deduction for or the reimbursement of such
taxes, assessments or governmental charges as may be specified therein or
in an indenture supplemental hereto creating such series, and otherwise
with respect to relieving the holder from payment of such taxes,
assessments or governmental charges;
(E) May contain such provisions, if any, for the redemption thereof,
at the option of the Company or holders thereof, at such redemption price
or prices, at such time or times, in such manner and upon such other terms
and conditions as may be so determined and expressed or referred to in
such Bonds;
(F) May be convertible into or exchangeable for, at the option of the
holders thereof, Units or capital stock of any class of the Company or of
any other limited partnership or corporation, as the case may be, at such
times, upon such terms and conditions and subject to such adjustments as
may be so determined and expressed or referred to in such Bonds or in an
endorsement thereon;
(G) May contain such provisions, if any, for the establishment of a
purchase, sinking, amortization, improvement, or analogous fund therefor,
in such amounts, at such time or times, in such manner and upon such other
terms and conditions, and for the retirement or redemption of such Bonds
by the operation of any such fund or otherwise, at such price
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or prices, in such amounts, at such time or times, in such manner and upon
such other terms and conditions, as may be so determined and expressed or
referred to in such Bonds;
(H) May contain such provisions, if any, with respect to serial
maturities, interest rate or rates (if they are of serial maturities),
payment of interest only in the event of specified contingencies or
events, anticipation of maturity on the happening of specified events, and
such other special terms and conditions, not contrary to the provisions
hereof, as may be so determined;
(I) Shall be in the form provided in the supplemental indenture
executed with respect to Bonds of such series, which form shall be in
substantially the same form as is set forth in the recitals hereto with
respect to the Bonds, with such omissions therefrom, variations therein
and additions thereto as shall be so determined;
(J) May have attached thereto or printed on the reverse side thereof
Unit purchase warrants, as and when directed by the Company and in such
form as the Company shall prescribe, and neither the Trustees nor any Bond
Registrar shall have any responsibility with respect to any such warrant
or the validity or execution or sufficiency thereof;
(K) May provide for the exchange of the Bonds of such series, at the
option of the Holders thereof and upon surrender thereof to the Corporate
Trustee, for or into new Bonds of a different series; and
(L) May provide for the exchanging of Bonds of such series, at the
option of the Holders thereof and upon surrender thereof to the Corporate
Trustee, for other Bonds of the same series of the same aggregate
principal amount of a different authorized kind or authorized denomination
or denominations.
SECTION 2.03. Bonds may bear such numbers, letters or other marks of
identification or designation, may be endorsed with or have incorporated in the
text thereof such legends or recitals with respect to transferability or in
respect of the Bond or Bonds for which they are exchangeable, and may contain
such provisions, specifications and descriptive words, not inconsistent with
the provision of this Indenture, as may be determined by the Company or as may
be required to comply with any law or with any rule or regulation made pursuant
thereto, or in order to comply with the rules and regulations of any stock
exchange upon which the Bonds are or to be listed or to conform with any usage
with respect thereto.
SECTION 2.04. Each Bond shall be signed in the name and on behalf of the
Company by its Managing General Partner. The signature of an officer of the
Managing General Partner may, if permitted by law, be in the form of a
facsimile signature and may be imprinted or otherwise reproduced on the Bonds.
In case any officer of the Managing General Partner of the Company who shall
have Signed, or whose facsimile signature shall be borne by, any of the Bonds
shall cease to be such officer of the Managing General Partner of the Company
before
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the Bonds so executed shall be actually authenticated and delivered by the
Corporate Trustee, such Bonds shall nevertheless bind the Company and may be
authenticated and delivered as though the person whose signature appears on
such Bonds had not ceased to be such officer of the Managing General Partner of
the Company.
SECTION 2.05. The Company shall keep or cause to be kept at the main
office of the Corporate Trustee books for the registration of transfer of Bonds
issued hereunder (herein sometimes referred to as the "Bond Register") and upon
presentation for such purpose at such office the Company will register or cause
to be registered the transfer therein, under such reasonable regulations as it
may prescribe, of such Bonds. The Corporate Trustee is hereby appointed "Bond
Registrar" for the purpose of registering Bonds and transfers of Bonds as
herein provided. The Company may appoint one or more "Bond Co-Registrars" for
such purpose as the Board of Directors may determine where Bonds may be
presented or surrendered for registration, registration of transfer or exchange
(which place or places may, but need not, be recited in the Bonds of the
relevant series) and such books, at all reasonable times, shall be open for
inspection by the Corporate Trustee.
SECTION 2.06. Whenever any Bond issue hereunder shall be surrendered to
the Company at an office or agency referred to in Section 6.06 hereof, for
registration of transfer or exchange, duly endorsed or accompanied by a proper
written instrument or instruments of assignment and transfer thereof or for
exchange in form satisfactory to the Company and the Corporate Trustee, or any
Bond Registrar or Bond Co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing, the Company shall execute, and the
Corporate Trustee shall authenticate and deliver, in exchange therefor, a Bond
or Bonds in the name of the designated transferee, as the case may require, of
the same series and with the same Stated Maturity and for a like aggregate
principal amount and of such authorized denomination or denominations as may be
requested. All Bonds issued upon any registration of transfer or exchange of
Bonds shall be the valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Bonds
surrendered upon such registration of transfer or exchange.
The Company, at its option, may require the payment of a sum sufficient to
reimburse it for any stamp tax or other governmental charge or expense that may
be imposed in connection with any exchange or transfer of Bonds other than
exchanges pursuant to Section 2.07 or 19.05 not involving any transfer. No
service charge will be made for any such transaction.
The Company shall not be required to issue or to make registrations of
transfer or exchanges of Bonds for a period of 15 days next preceding the date
of any selection of Bonds to be redeemed. The Company shall not be required to
issue or to make registrations of transfer or exchanges of any Bonds which have
been selected for redemption in whole or in part, except in the case of any
Bond to be redeemed in part, for which the Company shall register transfers and
make exchanges of the portion thereof not so to be redeemed.
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Upon delivery by any Bond Co-Registrar of a Bond in exchange for a Bond
surrendered to it in accordance with the provisions of this Indenture, the Bond
so delivered shall, subject to the provisions of Section 2.10, for all purposes
of this Indenture be deemed -to be duly registered in the Bond Register;
provided, however, that in making any determination as to the identity of
persons who are Holders, the Trustees shall, subject to the provisions of
section 16.02, be fully protected in relying on the Bond Register kept at the
main office of the Corporate Trustee.
SECTION 2.07. Pending the preparation of definitive Bonds the Company may
execute and, upon Company Order, the Corporate Trustee shall authenticate and
deliver temporary Bonds which may be printed, lithographed, typewritten,
mimeographed or otherwise reproduced. Temporary Bonds shall be issuable in any
authorized denomination, and substantially of the tenor of the definitive Bonds
in lieu of which they are issued, but with such omissions, insertions and
variations as may be appropriate for temporary Bonds, all as may be determined
by the officers of the Company executing such Bonds as evidenced by their
execution of such Bonds. Every such temporary Bond shall be authenticated by
the Corporate Trustee upon the same conditions and in substantially the same
manner, and with the same effect, as the definitive Bonds. If temporary Bonds
are issued, without unreasonable delay, the Company will execute and deliver to
the Corporate Trustee definitive Bonds and thereupon any and all temporary
Bonds may be surrendered in exchange therefor, at the offices referred to in
Section 6.06, and the Corporate Trustee shall authenticate and deliver in
exchange for such temporary Bonds an equal aggregate principal amount of
definitive Bonds of authorized denominations. Such exchange shall be made by
the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Bonds shall in all respects be entitled to the same
benefits under this Indenture as definitive Bonds authenticated and delivered
hereunder.
SECTION 2.08. The Company, either Trustee or any agent of the Company or
either Trustee may deem and treat (A) the registered Holder of any temporary
Bond, and (B) the registered Holder of any definitive Bond, as the absolute
owner of such Bond in accordance with Section 13.01.
SECTION 2.09. In case any Bond shall become mutilated or be destroyed,
lost or stolen, then upon the satisfaction of the conditions hereinafter set
forth in this Section 2.09, the Company (i) shall, in the case of any mutilated
Bond, and (ii) shall, in the case of any destroyed, lost or stolen Bond, in the
absence of notice to the Company or the Corporate Trustee that such Bond has
been acquired by a bona fide purchaser, execute, and upon the written request
of the company, the Corporate trustee shall authenticate and deliver,
a new Bond (which may bear such notation as may be required by the rules of
any stock exchange upon which the Bonds are listed or are to be listed) of like
tenor, series, maturity and principal amount bearing a number not
contemporaneously outstanding, in exchange and substitution for and upon
surrender and cancellation of the mutilated Bond or in lieu of and substitution
for the Bond so destroyed, lost or stolen; provided, however, that if any such
mutilated, destroyed, lost or stolen Bond shall have become or shall be about
to become due and payable, or shall have been selected or called for
redemption, the Company may instead of issuing a substituted Bond, pay such
Bond without requiring the
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surrender thereof, except that such mutilated Bond shall be surrendered. The
applicant for such substituted Bond shall furnish to the Company and to the
Corporate Trustee evidence satisfactory to them, in their discretion, of the
ownership of and the destruction, loss or theft of such Bond and shall furnish
to the Company and to the Corporate Trustee and any Bond Registrar such
security or indemnity as may be required by them to save each of them harmless,
and, if required, shall reimburse the Company for all expenses (including any
tax or other governmental charge and the fees and expenses of the Corporate
Trustee) in connection with the preparation, authentication and delivery of
such substituted bond, and shall comply with such other reasonable regulations
as the Company, the Corporate Trustee, or either of them, may prescribe.
Every new Bond issued pursuant to this Section 2.09 in lieu of any
destroyed, lost or stolen Bond shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Bond shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionally with any and
all other Bonds duly issued hereunder.
The provisions of this Section 2.09 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 Bonds.
SECTION 2.10. Subject to the qualifications hereinbefore set forth, the
Bonds to be secured hereby shall be substantially of the tenor and effect set
forth in the recitals hereto, and no Bonds shall be secured hereby or entitled
to the benefit hereof, or shall be or become valid or obligatory for any
purpose unless there shall be endorsed thereon an authentication certificate,
substantially in the form set forth in the recitals hereto, executed by the
Corporate Trustee; and such certificate on any Bond issued by the Company shall
be conclusive evidence and the only competent evidence that it has been duly
authenticated and delivered hereunder.
SECTION 2.11. All Bonds surrendered for payment, redemption, transfer,
exchange or conversion shall, if surrendered to any person other than the
Corporate Trustee, be delivered to the Corporate Trustee and, if not already
cancelled, shall be promptly cancelled by it. The Company may at any time
deliver to the Corporate Trustee for cancellation any Bonds previously
authenticated and delivered hereunder, which the Company may have acquired in
any manner whatsoever, and all Bonds so delivered shall be promptly cancelled
by the Corporate Trustee. No Bonds shall be authenticated in lieu of or in
exchange for any Bonds cancelled as provided in this section 2.11, except as
expressly permitted by this Indenture. The Corporate Trustee shall deliver all
cancelled Bonds held by it to the Company at least annually.
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ARTICLE 3
THE 0000 XXXXX
XXXXXXX 3.01. The initial series of Bonds to be executed, authenticated
and delivered under and secured by this Indenture shall be the 1989 Bonds,
which shall have the following terms and provisions:
(A) The 1989 Bonds shall be designated as " % First Mortgage Bonds
due January 15, 2005" of the Company. The 1989 Bonds and the Corporate
Trustee's authentication certificate to be endorsed thereon shall be
substantially in the respective forms thereof set forth in the recitals
hereto. The 1989 Bonds shall be executed, authenticated and delivered in
accordance with the provisions of, and shall in all respects be subject to
all of the terms, conditions and covenants of, this Indenture.
(B) The aggregate principal amount of the 1989 Bonds which may be
executed by the Company and authenticated and delivered by the Corporate
Trustee hereunder shall be limited to $20,000,000 principal amount, except
as provided in Sections 2.06, 2.07, 2.09 and 8.05 hereof.
(C) The 1989 Bonds shall be dated the date of authentication thereof
by the Corporate Trustee; provided, however, that in the case of an
issuance under Section 5.01 hereof, such authentication date shall be the
date specified in a Company Order delivered to the Corporate Trustee
pursuant to Section 5.01 hereof. The Stated Maturity of the 1989 Bonds is
January 15, 2005. The 1989 Bonds shall bear interest annually at the rate
set forth in their titles, payable quarterly on January 15, April 15, July
15, and October 15 of each year, from the Interest Payment Date next
preceding the date of such Bond to which interest on the Bonds has been
paid (unless the date of such Bond is the date to which interest on the
Bonds has been paid, in which case from the date of such Bond), or, if no
interest has been paid on the Bonds since the Original Issue Date of such
Bond, from such Original Issue Date, until payment of the principal
thereof becomes due, and at the same rate per annum on any overdue
principal and (to the extent legally enforceable) on any overdue
installment of interest; and shall be payable as to principal and interest
at the main office of the Corporate Trustee and at such other office or
agency as provided in this Indenture.
(D) The definitive 1989 Bonds shall be fully registered bonds without
coupons in denominations of integral multiples of $1,000, bearing
appropriate serial numbers. Temporary 1989 Bonds may be issued in the same
denominations as hereinabove provided in respect of definitive 1989 Bonds
and shall be exchangeable as provided in Section 2.07 hereof.
(E) The 1989 Bonds are subject to redemption at the option of the
Company and in the manner and upon the notice hereinafter provided in
Article 8 hereof.
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(F) The 1989 Bonds may be presented by the Holder for payment prior
to maturity, and the Company will redeem the same, subject to the terms
and conditions hereinafter provided in Article 9 hereof.
ARTICLE 4
GENERAL PROVISIONS AS TO ISSUE OF BONDS
SECTION 4.01. The aggregate principal amount of Bonds which may be
executed by the Company and authenticated and delivered by the Corporate
Trustee and secured by the Lien of this Indenture and Outstanding at any one
time is limited as herein provided in Articles 3, 5 and 6 hereof. This
Indenture shall be and constitute a continuing lien to secure the full and
final payment of the principal of and the premium, if any, and the interest on
all Bonds which may, from time to time, be executed, authenticated and
delivered hereunder. Subject to the terms with respect to any purchase or
sinking fund or analogous provisions for any particular series of Bonds, all
Bonds issued hereunder shall in all respects be equally and ratably secured
hereby without preference, priority or distinction, as to lien or otherwise, on
account of the actual time or times of the authentication and delivery or
maturity of the Bonds, or any of them, so that all Bonds at any time
Outstanding hereunder shall have the same right, lien and preference under and
by virtue of this Indenture, and shall all be equally and ratably secured
hereby, with like effect as if they had all been executed, authenticated and
delivered simultaneously on the date hereof, whether the same or any of them
shall actually be sold or disposed of at such date, or whether they, or any of
them, shall be sold or disposed of at some future date, or whether they, or any
of them, shall have been authorized to be authenticated and delivered under
Section 5.01 hereof, or may be authorized to be authenticated and delivered
hereafter pursuant to other provisions of this Indenture.
SECTION 4.02. Nothing contained in this Indenture shall limit the power of
the Board of Directors of the Company to fix the price at which the Bonds
authenticated and delivered under any of the provisions of this Indenture may
be issued, exchanged, sold or disposed of, but any or all of said Bonds may be
issued, exchanged, sold or disposed of upon such terms and for such
considerations as the Board of Directors of the Company may deem appropriate.
SECTION 4.03. Registered Bonds, without coupons, in addition to the
$20,000,000 aggregate principal amount of the 1989 Bonds, and of one or more
series, may from time to time be issued under this Indenture subject to the
limitation that the aggregate principal amount of Bonds Outstanding at any time
under this Indenture, shall not exceed 40,000,000.
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ARTICLE 5
ISSUANCE OF BONDS AND APPLICATION OF DEPOSITED CASH
SECTION 5.01. Bonds may from time to time be executed by the Company and
delivered to the Corporate Trustee with an Application for Authentication
pursuant to this Section 5.01. The Corporate Trustee shall thereupon
authenticate and deliver to the Company such amount of Bonds as may be
specified in said Application upon simultaneous receipt by the Corporate
Trustee of (A) an amount equal to the proceeds from the sale of such Bonds
(after deduction of all fees and expenses, including underwriting discounts,
commissions and fees, payable by the Company and incurred in connection with
the offer, sale and/or placement of such Bonds), as received by the Company
from time to time, less any amount in respect of accrued interest on such
Bonds, payable to the order of the corporate Trustee to be held in trust under
this Indenture, which amount shall be specified in said Application, and (B)
delivery of the documents specified in Section 5.02. The funds so delivered to
the Corporate Trustee shall be held as Deposited Cash and retained by the
Trustees as part of the Mortgaged and Pledged Property.
The Corporate Trustee shall hold Deposited Cash or any portion thereof as
provided in this Article 5. In the event that Deposited Cash or any portion
thereof deposited with the Corporate Trustee which is permitted to be withdrawn
pursuant to Section 5.03 is not so withdrawn for any reason, the Company by
Company Order may instruct the Corporate Trustee to apply such unwithdrawn
Deposited Cash, or any portion thereof, to the redemption of Bonds to the
extent Bonds are redeemable.
SECTION 5.02. Whenever requesting the authentication and delivery of Bonds
under Section 5.01 the Company shall file with the Corporate Trustee:
(A) A Certified Resolution of the Board of Directors of the Company
authorizing the execution and requesting the authentication and delivery
of the Bonds applied for in the principal amount therein specified,
authorizing and designating such Bonds and specifying the officer or
officers of the Company to whom or upon whose order such Bonds shall be
delivered;
(B) An Opinion of Counsel stating that:
(l) No order, authorization, consent, approval of or
registration with any courts, administrative agencies, commissions or
other public or governmental authority is necessary in connection
with the issuance of such Bonds and the execution and delivery of the
supplemental indenture pertaining thereto, if any, except:
(a) such which shall have been obtained under the
Securities Act of 1933, as amended and the Trust Indenture Act;
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(b) such as may be required under the securities or blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Bonds by the underwriters of the Bonds; and
(c) such as may be required by healthcare authorities in
connection with encumbering the Mortgaged and Pledged Property
with the Lien of this Indenture,
all of which are sufficient for said purposes and are valid and in
full force and effect (subject to the matters set forth in
Section 20.04(E)) and shall be evidenced by an appropriate writing of
such authority, a copy of which shall accompany such Opinion of Counsel;
(2) The issuance of such Bonds and the execution and delivery of this
Indenture or any supplemental indenture pertaining thereto, if any, have
been duly authorized by all requisite legal and partnership action
(including any required limited partner authorization) on the part of the
Company and are authorized by this Indenture;
(3) The supplemental indenture has been duly executed, acknowledged
and delivered by the Company to the Corporate Trustee and is a valid and
binding legal obligation of the Company enforceable in accordance with all
of its terms (subject to the matters set forth in Section 20.04(E));
(4) The instruments delivered to the Corporate Trustee conform to the
requirements of this Indenture; and
(5) Such Bonds when issued will constitute a valid, binding and legal
obligation of the Company and will be secured by this Indenture (subject
to the matters set forth in Section 20.04(E));
(C) An Officers' Certificate (l) setting forth the amount referred to in
Section 5.01; (2) stating that no Default or Event of Default hereunder has
occurred and is continuing; (3) stating that the conditions specified in this
Article 5 have been complied with, and, if given in connection with a request
for authentication of Bonds authorized under Section 4.03 hereof, that the
conditions specified in Section 4.03 have been complied with; and
(D) Such other instruments (including, without limitation, any Opinion of
Counsel) as the Corporate Trustee may have reasonably requested.
SECTION 5.03. The corporate trustee from time to time shall pay to the
Company with respect to the Mortgaged and Pledged Property subject or to be
subject (as provided herein) to the Lien of this Indenture Deposited Cash in an
amount equal to the Bondable Amount (as set forth in the officers' certificate
as hereinafter provided) of the Mortgaged and Pledged Property. For purposes of
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this Section 5.03, Deposited Cash shall include securities held by the
Corporate Trustee in lieu of Deposited Cash pursuant to Section 20.02 of this
Indenture. Payment of such Deposited Cash shall be made by the Corporate
Trustee upon receipt of:
(A) An Application specifying the amount and the place of payment of
the Deposited Cash;
(B) An Officers' Certificate certifying as follows with respect to
the Mortgaged and Pledged Property as to which Deposited Cash is being
withdrawn:
(1) A description of such Mortgaged and Pledged Property,
including a metes and bounds description of the parcel or parcels of
land underlying such Mortgaged and Pledged Property;
(2) That construction of such Mortgaged and Pledged Property has
been fully completed (and if construction has been completed within
six months or after the date such property became a Mortgaged and
Pledged Property or if the property has been acquired in an arm's
length transaction within six months, a statement to that effect);
(3) A description of the owner of such Mortgaged and Pledged
Property, the owner of which shall be either (i) the Company, or (ii)
an Operating Subsidiary, or (iii) the Company or an Operating
Subsidiary together with a lessor;
(4) The Fair Value (if required pursuant to the terms of this
Indenture), the Capitalized Cost (if applicable) and, except as
provided in Section 10.03 hereof, the Bondable Amount of the
Mortgaged and Pledged Property (including, with respect to such
Bondable Amount, a brief description of the computation thereof
showing that such Bondable Amount was computed in accordance with the
definition of said term in Article 1 hereof), and certifying that no
portion of the Fair Value, the Capitalized Cost or the Bondable
Amount of the Mortgaged and Pledged Property so specified was
previously specified in any Application of the Company delivered to
the Corporate Trustee pursuant to this Section 5.03 unless such
property was released pursuant to Article 10 hereof prior to the date
of such Officers' Certificate;
(5) Whether the Mortgaged and Pledged Property has previously
been subjected to the Lien of this Indenture;
(6) That, to the best knowledge of the Company's officers, there
are no liens or encumbrances on the property other than Permitted
Encumbrances;
(7) That all authorizations, consents, approvals or licenses of
any Federal, state or local governmental or regulatory authority,
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including any health care agency, required in connection with the
acquisition, construction, equipping and operation of the Mortgaged
and Pledged Property have been obtained;
(8) That, to the best knowledge of the Company's officers, no
event has occurred and is continuing which would cause the actual
fair market value Of the Mortgaged and Pledged Property to be
materially less than the Fair Value upon which the Bondable Amount
set forth in Section 5.03(B)(4) was based;
(9) That no Default or Event of Default has occurred and is
continuing; and
(10) That, to the best knowledge of the Company's officers, the
Mortgaged and Pledged Property has not been used by the Company or
any other Person at any time to handle, treat, store or dispose of
any hazardous or toxic waste or substance, and is not contaminated
with any hazardous or toxic waste, pollutants or other substances,
which use or contamination may give rise to a clean-up and/or
remediation obligation under any federal, state or local law, rule,
regulation or ordinance;
(C) One or more standard ALTA mortgage title insurance policies,
issued by an insurer satisfactory to the Corporate Trustee, in an amount equal
in the aggregate to 100% of the Bondable Amount of the Mortgaged and Pledged
Property then subject to the Lien of this Indenture, naming the Corporate
Trustee as the insured, insuring fee simple title in the Company to the real
property on which the Mortgaged and Pledged Property is located, containing no
exceptions other than Permitted Encumbrances and with the survey exceptions
removed;
(D) Copies of all such documents referred to in subdivision (B)(7) of
this Section 5.03;
(E) In the case of Mortgaged and Pledged Property that becomes
subject to the Lien of this Indenture pursuant to Article 10 hereof, an Opinion
of Counsel that:
(1) Such Mortgaged and Pledged Property is subject to the Lien
of this Indenture or will become subject to such Lien upon the
delivery and recording or filing of a supplemental indenture or
instruments of further assurance, if any, as are specified in said
Opinion of Counsel, as security for all the Bonds, subject to no
lien, security interest or other encumbrance thereon, other than
those set forth in the mortgage title insurance policy described in
subdivision (C) of this Section 5.03 and the matters described in
subdivision (G) Of the definition of permitted encumbrances, and such
opinion of counsel shall also state that such supplemental indenture
or other instruments of further assurance are sufficient to permit
the Trustees to exercise their rights and remedies under Article 10
of this Indenture (except to the extent limited by laws
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affecting creditors' rights generally and except for matters
permitted by Section 20.04(E));
(2) This Indenture, including the supplemental indenture and
other instruments Of further assurance, if any, referred to in
subdivision (F) of this Section 5.03 have been duly filed or recorded
in all places necessary to Grant to the Trustees for the equal and
ratable benefit of all of the holders of the Bonds a first lien on
such Mortgaged and Pledged Property, subject only to liens, security
interests and other encumbrances set forth in the mortgage title
insurance policy described in subdivision (C) of this Section 5.03
and the matters described in subdivision (G) of the definition of
Permitted Encumbrances;
(F) A supplemental indenture, UCC-1 financing statements and/or UCC-3
financing statements and all instruments of further assurance, if any, as
in the Opinion of Counsel furnished pursuant to subdivision (E) of this
Section 5.03, may be specified as necessary or advisable to subject to the
Lien of this Indenture such Mortgaged and Pledged Property;
(G) With respect to any Mortgaged and Pledged Property upon which the
Company or an Operating Subsidiary has constructed additional beds within
six (6) months prior to the date such property is to become a Mortgaged
and Pledged Property, an architect's certificate, including the statements
provided in Section 20.04, if and to the extent required by the provisions
thereof, stating that the Mortgaged and Pledged Property, to the extent
completed, is substantially in accordance with the plans and
specifications relating thereto;
(H) Such affidavits and indemnities as may be required by the title
insurance company to delete all standard exceptions, other than any
environmental exception; and
(I) Such other instruments (including without limitation, any Opinion
of Counsel or environmental audit of the Mortgaged and Pledged Property)
as the Trustees may have reasonably requested.
The foregoing documents furnished pursuant to this Section 5.03 shall
constitute full authority to the Trustees for the payment of Deposited Cash to
the Company pursuant to this Section 5.03, and the Trustees in so doing shall
not be liable to the Company or to any of the Bondholders.
ARTICLE 6
PARTICULAR COVENANTS OF THE COMPANY
Anything in this Indenture or in any Bond to the contrary notwithstanding,
the Company, expressly for the equal and ratable benefit of the original and
future holders of the Bonds, represents and warrants the truth and correctness
of the information set forth in the Preliminary Statement, and covenants and
agrees as follows:
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SECTION 6.01. The Company will do or cause to be done all things necessary
to preserve and keep in full effect the existence, franchises, rights and
privileges as a limited partnership in good standing of the Company and each
operating Subsidiary, respectively, under the laws of its jurisdiction of
organization, and will do or cause to be done all things necessary to obtain,
preserve and keep in full effect the qualification of the Company and each
operating Subsidiary, respectively, as a foreign partnership to do business and
in good standing in each jurisdiction (other than the jurisdiction of its
organization) wherein the character of its assets or the nature of its business
makes such qualification necessary and in which any such failure to so qualify
would have a material adverse effect on the business or operations of the
Company and its Subsidiaries taken as a whole; provided, however, that, the
Company may sell any Subsidiary and any Subsidiary may be dissolved, merged
into or consolidated with or its assets transferred to, the Company or another
subsidiary, and except as further provided in Article 15 hereof. The Company
will comply with, or cause to be complied with, all requirements of each
instrument and all legal requirements, which are applicable to the Company, any
Subsidiary, the property of the Company or any Subsidiary, the Trust Estate or
any portion thereof.
SECTION 6.02. The Company has full power and lawful authority to Grant (or
cause to be Granted) the property described in the Granting Clauses of this
Indenture to the Trustees, and warrant that such property is free and clear of
all liens, charges and other encumbrances other than Permitted Encumbrances.
The Company and each Operating Subsidiary which is at the time an owner of any
Mortgaged and Pledged Property will have full power and lawful authority to
Grant the property Granted by it to the Trustees at the time of taking such
action. The Company will at all times protect or cause to be protected the
title to the Trust Estate, and will forever warrant and defend the same and the
rights of the Trustees therein and thereto against the claims and demands of
all persons, and will maintain the Lien of this Indenture so long as any Bond
remains outstanding.
SECTION 6.03. The Company will, at its expense and from time to time, and
will cause any Operating Subsidiary to, execute and deliver any and all such
instruments of further assurance and other instruments, and do any and all such
acts, or cause the same to be done, as the Trustees shall deem necessary or
advisable to better Grant and confirm to the Trustees the Trust Estate or to
carry out more effectively the purposes of this Indenture.
SECTION 6.04. The Company will punctually pay, or cause to be paid, the
principal, premium, if any, and interest to become due in respect of the Bonds
Outstanding according to the provisions hereof and thereof, and will not claim
any credit on the Bonds Outstanding or make any deduction from the payments
thereon by reason of the payment of any taxes levied at any time or from time
to time upon the Trust Estate or any portion thereof.
SECTION 6.05. The Company covenants and agrees that, except as otherwise
provided herein, this Indenture is and always will be kept a first lien upon
all of the Mortgaged and Pledged Property subject only to Permitted
encumbrances, and that it will not create, or suffer to be created or to arise,
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or allow to exist any other lien or charge {other than Permitted Encumbrances)
having priority to, preference over or parity with the Lien of this Indenture
upon the Mortgaged and Pledged Property, or any part thereof, or upon the
income therefrom. The Company will pay and discharge, or cause to be paid and
discharged, before they become delinquent, (i) all taxes (including income,
franchise and gross receipts taxes), assessments and other governmental and
similar charges levied upon or assessed against it, the Trustees as such, the
Trust Estate or any portion thereof, any other property of the Company or any
operating Subsidiary or any income therefrom, or the interest of the Trustees
in any thereof; and (ii) all claims for labor and supplies, which, if unpaid,
might by law become a lien upon any of the Mortgaged and Pledged Property.
Notwithstanding the foregoing, nothing in this Section 6.05 shall require the
payment or discharge of any such tax, assessment, charge or claim so long as
the Company or such Operating Subsidiary shall in good faith contest the
amount, the applicability or validity thereof by proper Proceedings which shall
operate, during the continuance thereof, to prevent the collection thereof and
the sale or forfeiture of such property to satisfy the same.
SECTION 6.06. (A) The Company will maintain an office or agency in the
place of payment where Bonds may be presented or surrendered for payment, where
Bonds may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Bonds and this
Indenture may be served. The Company will give prompt written notice to the
Trustees of the location, and of any change in the location, of such office or
agency. If at any time the Company shall fail to maintain such office or agency
or shall fail to furnish the Trustees with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
main office of the Corporate Trustee, and the Company hereby appoints the
Corporate Trustee its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Bonds may be presented or surrendered for any or all of
the purposes specified above in this Section 6.06(A) and may from time to time
rescind such designations, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
place of payment for such purposes. The Company will give prompt written notice
to the Corporate Trustee of any such designation and any change in the location
of any such other office or agency.
(B) The Company hereby appoints the Corporate Trustee as paying agent and
the Company covenants that, if it shall appoint a paying agent other than the
Corporate Trustee, it will cause such paying agent to execute and deliver to
the Corporate Trustee an instrument in which such paying agent shall agree with
the Corporate Trustee, subject to the provisions of this Section 6.06,
(1) that such paying agent shall hold all sums held by it as such
agent for the payment of the principal of and the premium, if any, or the
interest on any of the Bonds in trust for the benefit of the holders of
such Bonds or the Trustees;
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(2) that such paying agent shall give the Corporate Trustee notice of
any Default of the Company in making any payment of the principal of and
the premium, if any, or the interest on the Bonds when the same shall be
due and payable; and
(3) at any time during the continuance of any such Default, upon the
written request of the Corporate Trustee, forthwith to pay to the
Corporate Trustee all sums so held in trust by such paying agent.
(C) The Company covenants and agrees that, if it should at any time act as
its own paying agent, it will, on or before each due date of the principal of
and the premium if any, or the interest on the Bonds set aside and segregate
and hold in trust for the benefit of the holders of the Bonds a sum sufficient
to pay such principal and premium, if any, or interest so becoming due until
such sums shall be paid to such holders or otherwise disposed of as herein
provided and will notify the Corporate Trustee of its action or of any failure
to take such action.
Whenever the Company shall have one or more paying agents, it will, prior
to each due date of the principal of, and premium, if any, or interest on, any
Bonds, deposit with one or more paying agents a sum sufficient to pay the
principal, and premium, if any, or interest, so becoming due, such sum to be
held in trust for the benefit of the Holders of Bonds entitled to such
principal, premium or interest, and (unless such paying agent is the Corporate
Trustee) the Company will promptly notify the Corporate Trustee of its action
or failure so to act.
(D) Anything in Section 6.06 to the contrary notwithstanding, the Company
may at any time, for the purposes of obtaining the satisfaction and discharge
of this Indenture or for any other reason, pay, or by Company Order direct any
paying agent to pay, to the Corporate Trustee all sums held in trust by the
Company or any paying agent as required by this Section 6.06, such sums to be
held by the Corporate Trustee upon the trusts contained in this Indenture. Upon
such payment by any paying agent to the Corporate Trustee, such paying agent
shall be released from all further liability with respect to such money.
(E) Anything in this Section 6.06 to the contrary notwithstanding, the
holding of sums in trust as provided in this Section 6.06 is subject to the
provision of Section 20.03 hereof.
SECTION 6.07. The Company will pay or cause to be paid all Debt of the
Company and of each Subsidiary (but, in the case of Debt of a Subsidiary on
which the Company is not liable, the Company shall be obligated so to do only
to the extent that such Subsidiary's assets shall be sufficient for the
purpose), as and when same shall become due and payable, and will observe,
perform and discharge in accordance with their terms all of the covenants,
conditions and obligations which are imposed on it by any and all mortgages,
indentures and Other agreements evidencing or securing Debt of the Company or
pursuant to which such Debt is issued, so as to prevent the occurrence of any
act or omission which is a default thereunder, and which remains uncured or is
not waived for a
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period of 30 days. The Company will notify the Corporate Trustee of any breach
Of the covenants contained in this Section 6.07 within ten days after the
Company has knowledge of such breach.
SECTION 6.08. As long as there are any Bonds Outstanding, the Company Will
not, and will not permit any Operating Subsidiary to:
(A) Create, assume, incur or suffer to be created, assumed or incurred or
to exist any mortgage, pledge, lien, charge or other encumbrance (other than
Permitted Encumbrances) upon the Trust Estate, except the Lien of this
Indenture; or
(B) Except after compliance with the provisions of Article 15 hereof,
merge or consolidate into or with any other person, or sell, transfer, lease or
otherwise dispose of (l) all or substantially all of its properties or (2) any
Mortgaged and Pledged Property subject to the Lien of this Indenture.
So long as there are any Bonds Outstanding, except as permitted pursuant
to the provisions of Article 15, the Company further covenants that it will not
permit any Operating Subsidiary to issue or otherwise dispose of 50% or more of
the outstanding shares of its capital stock to any person other than the
Company, unless the Company shall continue to manage the operations conducted
on the Mortgaged and Pledged Property by such Operating Subsidiary after any
such issuance or disposition of such shares of capital stock.
SECTION 6.09. The Company covenants that it will, and will cause each of
its Operating Subsidiaries to, at all times keep, maintain and preserve all the
property of the Company and of each such Subsidiary in good repair, working
order and condition, reasonable wear and tear excepted, and from time to time
make all needful and proper repairs, renewals, replacements, betterments and
improvements thereto, so that the business carried on in connection therewith
may be properly and advantageously conducted at all times.
SECTION 6.10. As long as there are any Bonds Outstanding, the Company, at
all times will, and will cause each Operating Subsidiary, to:
(A) Keep all of its Mortgaged and Pledged Property subject to the Lien Of
the Indenture insured against loss or damage by fire, lightning, windstorm,
explosion, aircraft, vehicle and smoke damage in amounts sufficient to prevent
the Company or such Subsidiary, as the case may be, from becoming a coinsurer
within the terms of the policies in question, and in any event in amounts not
less than the lesser of (i) 80% of the then full insurable value thereof or
(ii) the principal amount of the Bonds outstanding at any time;
(B) Maintain public liability and other insurance in such amounts and
against such risks and claims as are usually carried by persons operating
businesses and properties of the character at the time owned or operated by the
Company or such Subsidiary, as the case may be, including, without limitation,
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insurance against claims for malpractice, personal injury, death or property
damage suffered by others upon or in or about any premises occupied by it or
occurring as a result of its maintenance or operation of any automobiles,
trucks or other vehicles, except that the Company or a Subsidiary, as the case
may be, may itself carry the risk of such claims if the Company or such
Subsidiary shall maintain adequate reserves therefor in accordance with sound
actuarial or insurance principles or practices;
(C) Maintain all such worker's compensation or similar insurance (or
self-insurance, if permitted by law) as may be required under the laws of any
jurisdiction in which it may be engaged in business; and
(D) Keep all of its insurable properties adequately insured against all
other risks usually insured against by persons operating businesses and
properties of the character at the time owned or operated by the Company or
such Subsidiary, as the case may be.
All such insurance shall be effected with reputable and responsible
insurers of recognized national standing. All policies of such insurance on
the Mortgaged and Pledged Property subject to the Lien of this Indenture shall
be made payable to (without contribution by) the Trustees as their interests
may appear, under a standard mortgagee clause or other similar clause
acceptable to the Trustees, except that the loss payable clause may provide
that all amounts payable, as long as no Event of Default shall have occurred or
be continuing under this Indenture, as to any particular loss to the Mortgaged
and Pledged Property, if the aggregate amount to be paid in respect of such
loss is less than $500,000 shall be paid to the Company. The Company will cause
all proceeds of any insurance on the Mortgaged and Pledged Property which is
payable to such owner as aforesaid to be applied as promptly as practicable to
the repair or rebuilding of the buildings and improvements on the Mortgaged and
Pledged Property.
The insurer shall be entitled to assume conclusively that no such Event of
Default has occurred or is continuing if such insurer has not been notified in
writing by the Company or Corporate Trustee of the existence of such an Event
of Default. Each policy of insurance provided for in this Section 6.10 or
certificate therefore shall contain an agreement by the insurer that such
policy shall not be cancelled, materially altered or reduced in amount without
at least ten days' prior written notice to the Company and the Trustees, as
well as the of the Mortgaged and Pledged Property, if other than the Company.
Within 30 days after the obtaining of any of the aforesaid insurance on the
Mortgaged and Pledged Property, the Company will file with the Corporate
Trustee an Officers' Certificate containing a list of the insurance in force
upon the Mortgaged and Pledged Property, the names of the insurers with which
the policy or policies of insurance on the Mortgaged and Pledged Property are
carried, the numbers, amounts and expiration dates of such policies, and the
properties and hazards covered thereby, and stating that the insurance so
listed complies with this Section 6.10, and annually thereafter, within 120
days after the end of each fiscal year, commencing with the fiscal year ending
December 31, 1989, the Company will file with the Corporate Trustee an
Officers' Certificate as aforesaid, containing all such information as to the
Mortgaged and Pledged
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Property. The Trustees shall be entitled to rely upon such Officers' certificate
as satisfactory evidence of compliance by the Company with this Section 6.10.
All proceeds of insurance received by the Trustees under this Section
6.10, at the option of the Company, as set forth in a Company Order, shall be
applied to the restoration or repair of any of the buildings and improvements on
the Property in respect of which such proceeds of insurance have been paid to
the Trustees or shall be considered Deposited Cash which shall be paid out or
applied by the Corporate Trustee at any time or from time to time pursuant to
the provisions of Article 5. If such proceeds are to be applied other than as
Deposited Cash, the Company or an Operating Subsidiary shall proceed promptly to
repair, rebuild or restore the property damaged or destroyed, with such changes,
alterations and modifications as may be desired by the Company or such Operating
Subsidiary and the Corporate Trustee shall pay to the Company or such Operating
Subsidiary, as the case may be, upon the delivery, from time to time, of an
Officers' Certificate setting forth the costs theretofore incurred or paid, so
much as may be necessary of the proceeds of such insurance to pay the costs of
such repair, rebuilding or restoration, either on completion thereof or as the
work progresses. In the event said proceeds are not sufficient to pay in full
the costs of such repair, rebuilding or restoration, the Company will
nonetheless complete or cause to be completed the work thereof and will pay or
cause to be paid the portion of the costs thereof in excess of the amount of
said insurance proceeds.
In case of any loss in respect of any part of the Mortgaged and Pledged
Property covered by any policy or other contract of insurance, the Company or an
Operating Subsidiary shall have the exclusive right to seek any adjustment or
settlement, and any adjustment or settlement of such loss which shall be agreed
upon between the Company or an Operating Subsidiary and any insurer shall be
evidenced by an Officers' Certificate furnished to the Corporate Trustee.
SECTION 6.11. The Company will, at its expense, but subject to the
direction and control of the Corporate Trustee, take such action, or upon the
Corporate Trustee's request furnish the Corporate Trustee with funds sufficient
to enable the Trustees to take such action at the Company's expense, as the
Corporate Trustee may deem necessary or advisable for enforcing payment by any
and all persons of any moneys payable under or pursuant to the Trust Estate or
any instrument included therein.
SECTION 6.12. (A) The Company will promptly or will promptly cause each
instrument with respect to the Trust Estate including, without limitation, this
Indenture' any supplemental indenture, financing statements, continuation
statements or other instruments with respect to any thereof or the property
intended to be subject to any thereof or subject to the Lien of this Indenture,
to be filed, registered or recorded (and, when and if necessary, to be re-filed,
re-registered or re-recorded) in such manner and in such places as may be
required by any present or future law in order to, as the case may be, create or
protect the valid and enforceable first lien hereof and thereof, if any, upon
the property subject hereto or thereto or intended to be subject hereto or
thereto or to protect the validity hereof or thereof or to publish notice hereof
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or thereof or to entitle the Bondholders, directly or indirectly, to the
benefits and security intended to be provided hereby or thereby, or to protect
and maintain the estate, right, title, interest, claim and demand of the
Trustees in, to and under the Trust Estate.
(B) The Company will pay, or cause to be paid, all taxes and fees
incident to each filing, registration, recording, re-filing, re-registration and
re-recording required by this Indenture or any supplemental indentures, all
federal or state stamp taxes and all other taxes, duties, imposts, assessments
and charges and all other expenses arising out of or incident to the issuance of
the Bonds and the preparation, execution and delivery of the instruments
referred to in Section 6.12(A).
(C) The Company covenants and agrees that it will furnish to the
Corporate Trustee promptly after the execution and delivery of this Indenture,
of each supplemental indenture, of each Mortgage, and each other instrument
purporting to create and perfect a valid and enforceable first lien upon any of
the Mortgaged and Pledged Property, an Opinion of Counsel either stating that in
the opinion of such counsel this Indenture, such supplemental indenture, such
Mortgage or such other instrument has been properly recorded and filed so as to
make effective the lien intended to be created thereby, subject only to the
liens, security interests and encumbrances set forth in the mortgage title
insurance policy described in Section 5.03(C) and issued with respect to such
Mortgaged and Pledged Property and the matters described in subdivision (G) of
the definition of Permitted Encumbrances, and reciting the details of such
action, or stating that in the opinion or such counsel no such action is
necessary to make such Lien effective.
(D) Within the 120 days after the end of each fiscal year of the
Company commencing with the fiscal year ending December 31, 1989 while there are
any Bonds Outstanding, the Company will furnish to the Corporate Trustee a
favorable Opinion of Counsel either stating that in the opinion of such counsel
such action has been taken with respect to the recording, filing, re-recording
and re-filing of this Indenture, such supplemental indenture, such Mortgage or
such other instrument as is necessary to maintain the Lien of this Indenture,
and reciting the details of such action, or stating that in the opinion of such
counsel no such action is necessary to maintain such Lien. If this Indenture,
any supplemental indenture, any Mortgage and any other instrument purporting to
create and perfect the Lien of this Indenture have been filed, registered,
recorded, re-filed, re-registered or re-recorded during the preceding 12
calendar months, such opinion shall also state that each such instrument creates
and/or maintains a valid and enforceable first lien on the property, subject
only to Permitted Encumbrances.
SECTION 6.13. The Company will maintain an office of the Company, which
shall be and remain the principal place of business of the Company, in
Murfreesboro, Tennessee and shall keep its records concerning the Trust Estate
at such office; provided, however, that upon at least 30 days' prior written
notice to the corporate trustee, the Company may move such office and records TO
any other address as set forth in such notice.
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SECTION 6.14. The Company will (i) keep proper records and books of
account in accordance with generally accepted accounting principles consistently
applied, reflecting all financial transactions of the Company and each
Subsidiary, and (ii) permit or cause to permit the Trustee, personally or by its
agents, accountants and attorneys, to visit or inspect any of the properties,
examine the records and books of account and discuss the affairs, finances and
accounts, of the Company and each Subsidiary, with the officers of the Company
and Subsidiaries at such reasonable times as may be requested by the Trustees.
The Trustees shall be under no duty to make any such visit, inspection or
examination.
The Company covenants that books of record and account will be kept in
which full, true and correct entries will be made of all dealings or
transactions of, or in relation to, the properties, business and affairs of the
Company.
SECTION 6.15. The Company will file with the Corporate Trustee, within
120 days after the end of each fiscal year of the Company commencing with the
fiscal year ending December 31, 1989, an Officers' Certificate stating, as to
each signer thereof, that:
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the
Company has fulfilled all of its obligations under this Indenture throughout
such year, or, if there has been a Default in the fulfillment of any such
obligation, specifying each such Default known to him and the nature and status
thereof.
SECTION 6.16. The Company covenants that it will file with the
Corporate Trustee, within 120 days after the end of each fiscal year commencing
with the fiscal year ending December 31, 1989, a letter or statement of the
independent certified public accountants who shall have certified the
consolidated financial statements of the Company for its preceding fiscal year
in connection with the annual report of the Company to its limited partners for
such year to the effect that in making the examination necessary for
certification of such financial statements, they have obtained no knowledge of
any Default by the Company in the performance or fulfillment of any covenant,
agreement or condition contained in this Indenture during such year or, if they
shall have obtained knowledge of any such Default, specifying in such letter or
statement such Default and the nature and status thereof, it being understood
that such accountants shall not be liable directly or indirectly for failure to
obtain knowledge of any such Default; provided, however, that until the
occurrence of a Fundamental Structural Change, such letter or statement may be
executed and delivered by the chief financial officer of the Company.
SECTION 6.17. The Company covenants that it will not issue, or permit
to be issued, any Bonds hereunder in any manner other than in accordance with
the provisions of this Indenture and that it will faithfully observe and perform
all the conditions, covenants and requirements of this Indenture and of the
Bonds issued hereunder.
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SECTION 6.18. The Company will, and will cause each Operating
Subsidiary to (i) cause each lessor of any property constituting, or intended to
constitute, part of the Trust Estate (other than immaterial personal property
leases) to execute any and all instruments necessary to subordinate such
lessor's interest in such property (and in the related lease or lease agreement)
to the Lien of this Indenture, (ii) observe and perform all of its obligations,
and pay and discharge all sums payable by it, under or by virtue of any such
lease or agreement constituting the Mortgaged and Pledged Property (other than
immaterial personal property leases) and (iii) not suffer or permit any default
for which such lease or agreement (other than immaterial personal property
leases) may be terminated, so that, subject to the provisions of Articles 10 and
15 hereof, the rights under such lease or agreement (other than immaterial
personal property leases) constituting part of the Mortgaged and Pledged
Property shall be preserved unimpaired as security for the Bonds hereby secured.
Nothing in this Section 6.18 shall require the Company or a Subsidiary
to make any such payments or to observe any such obligations so long as in good
faith the validity or amount of such payments or the duty to observe any such
obligations shall be contested and the Company or a Subsidiary is not
dispossessed, or if non-payment or failure to observe such obligations is not
prejudicial in any material respect to the Bondholders by reason of the
indemnification bond, guarantee or insurance of a person other than the Company
or a Subsidiary payable to or in favor of the Trustees.
SECTION 6.19. The Company and each Operating Subsidiary (i) will
refrain from handling, treating, storing, using, discharging, releasing,
spilling or disposing of any Hazardous Substances on any of the Mortgaged and
Pledged Property; and (ii) will conduct its or their operations on the Mortgaged
and Pledged Property at all times in compliance with all federal, state and
local statutes, rules, regulations, ordinances, permits, licenses,
authorizations and administrative or judicial orders relating to the generation,
recycling, reuse, sale, storage, handling, transport and disposal of any
Hazardous Substances.
ARTICLE 7.
BONDHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEES
SECTION 7.01. (A) The Company will furnish or cause to be furnished to
the Corporate Trustee, quarterly, not more than 15 days after each Regular
Record Date a list, in such form as the Corporate Trustee may reasonably
require, of the names and addresses of the holders of Bonds as of such Regular
Record Date, and at such other times, as the Corporate Trustee may request in
writing, within 30 days after 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; provided, however, that so long as the corporate trustee
is the sole Bond Registrar, no such list shall be required to be furnished.
(B) The Corporate Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the holders of Bonds received
by the Corporate Trustee in its capacity as Bond Registrar contained in the most
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recent list furnished to it as provided in subdivision (A) of this Section 7.01.
The Corporate Trustee may destroy any list furnished to it as provided in
subdivision (A) of this Section 7.01, upon receipt of a new list so furnished.
(C) In case three or more holders of Bonds (hereinafter called
"Applicants") apply in writing to the Corporate Trustee, and furnish to the
Corporate Trustee reasonable proof that each such Applicant has owned a Bond for
a period of at least six months preceding the date of such application, and such
application states that the Applicants desire to communicate with other holders
of Bonds with respect to their rights under this Indenture or under the Bonds,
and is accompanied by a copy of the form of proxy or other communication which
such Applicants propose to transmit, then the Corporate Trustee shall, within
five business days after the receipt of such application, at its election,
either
(1) afford to such Applicants access to the information
preserved at the time by the Corporate Trustee in accordance with the
provisions of subdivision (B) of this Section 7.01; or
(2) inform such Applicants as to the approximate number of
holders of Bonds whose names and addresses appear in the information
preserved at the time by the Corporate Trustee, in accordance with the
provisions of subdivision (B) of this Section 7.01, and as to the
approximate cost of mailing to such Bondholders the form of proxy or
other communication, if any, specified in such application.
If the Corporate Trustee shall elect not to afford to such Applicants access to
such information, the Corporate Trustee shall, upon the written request of such
Applicants, mail to each Bondholder whose name and address appears in the
information preserved at the time by the Corporate Trustee in accordance with
the provisions of subdivision (B) of this Section 7.01, a copy of the form of
proxy or other communication which is specified in such request, with reasonable
promptness after a tender to the Corporate Trustee of the material to be mailed
and of payment or provision for the payment of the reasonable expenses of
mailing, unless within five days after such tender the Corporate Trustee shall
mail to such Applicants and file with the Securities and Exchange Commission
together with a copy of the material to be mailed, a written statement to the
effect that, in the opinion of the Corporate Trustee, such mailing would be
contrary to the best interests of the holders of Bonds, or would be in violation
of applicable law. Such written statement shall specify the basis of such
opinion. If said Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order Sustaining one
or more of such objections, said Commission shall find, after notice and
opportunity for a hearing, that all the objections so sustained have been met
and shall enter an order so declaring, the Corporate Trustee shall mail copies
of such material to all such Bondholders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Corporate
Trustee shall be relieved of any obligation or duty to such Applicants
respecting their application.
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(D) Every holder of the Bonds, by receiving and holding the same,
agrees With the Company and the Trustees that neither the Company nor the
Trustees, nor any paying agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the holders
of Bonds in accordance with the provisions of subdivision (C) of this Section
7.01, regardless of the source from which such information was derived, and that
the Trustees shall not be held accountable by reason of mailing any material
pursuant to a request made under said subdivision (C).
SECTION 7.02. The Company covenants and agrees:
(A) To file with the Corporate Trustee within 15 days after the Company
is required to file the same with the Securities and Exchange Commission, copies
of the annual reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as such Commission may from time
to time by rules and regulations prescribe) which the Company may be required to
file with such Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents, or reports pursuant to either of such Sections, then the
Company will file with the Corporate Trustee and the Securities and Exchange
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents, and reports which may be required pursuant to Section 13 of the
Securities Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(B) To file with the Corporate Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from time to
time by said Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and
regulations, including, in the case of annual reports, if required by such rules
and regulations, certificates or opinions of independent public accountants,
conforming to the requirements, if any, of Section 20.04 hereof, as to
compliance with conditions or covenants, compliance with which is subject to
verification by accountants;
(C) To transmit by mail to the holders of Bonds in the manner and to
the extent provided in subdivision (C) of Section 7.03 hereof, with respect to
reports pursuant to subdivision (A) of Section 7.03 hereof, within 30 days after
the filing in accordance with subdivisions (A) and (B) hereof with the Corporate
trustee, such summaries of any information, documents and reports required to be
filed by the Company pursuant to subdivisions (A) and (B) of this Section 7.02
as may be required by the rules and regulations prescribed from time to time by
the Securities and Exchange Commission; and
(D) To furnish to the Corporate Trustee (1) with or as a part of each
annual report and each other document or report filed with the Corporate Trustee
pursuant to subdivision (A) or subdivision (B) of this Section 7.02, an
Officers' Certificate stating that in the opinion of each of the signers such
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annual report or other document or report complies with the requirements of such
Subdivision (A) or subdivision (B) and (2) after the Company shall have
transmitted to the holders of Bonds any summary of information, documents or
reports pursuant to subdivision (C) of this Section 7.02, an Officers'
Certificate stating that in the opinion of each of the signers such summary
complies with the requirements of such subdivision (C).
Each certificate furnished to the Corporate Trustee pursuant to the
provisions Of this Section 7.02 shall conform to the requirements of Section
20.04 hereof.
SECTION 7.03. (A) The Trustees shall transmit within 60 days after May
15 in each year, beginning with the year 1990, to the Bondholders a brief report
dated as of such May 15 (hereinafter the "reporting date") with respect to:
(1) their eligibility and qualifications under Sections 16.01
and 16.10 hereof, or in lieu thereof, if to the best of their knowledge
such Trustees have continued to be eligible and qualified under such
Sections, a written statement to such effect;
(2) the character and amount of any advances (and if the
Trustees elects so to state, the circumstances surrounding the making
thereof) made by the Trustees, as such, which remain unpaid on the
reporting date, and for the reimbursement of which the Trustees claim
or may claim a lien or charge, prior to that of the Bonds, on the Trust
Estate or on any property or funds held or collected by them as
Trustees, provided that the Trustees shall not be required (but may
elect) to state such advances, if such advances so remaining unpaid
aggregate not more than one-half of one per centum (1/2 of 1%) of the
principal amount of the Bonds Outstanding on the reporting date;
(3) the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by any other obligor on the
Bonds) to the Trustees in their individual capacity on the reporting
date, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in any manner described in clauses (2), (3), (4)
or (6) of subdivision (B) of Section 16.09 hereof;
(4) the property and funds physically in the possession of the
Trustees, as Trustees, on the reporting date;
(5) any release, or release and substitution, of property
subject to the Lien of this Indenture (and the consideration therefor,
if any) which has not been previously reported; provided, however, that
to the extent that the aggregate value as shown by the release papers
of any or all of such released properties does not exceed an amount
equal to one per centm (1%) of the principal amount of Bonds then
Outstanding, the report need only indicate the number of such releases,
the total value of property released as shown by the release papers,
the aggregate amount of cash received and the aggregate value of
property received in substitution therefor as shown by the release
papers; and
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(6) any action taken by the Trustees in the performance of
their duties under this Indenture which it or he has not previously reported and
which in their opinion materially affects the Bonds or the Trust Estate, except
action in respect of a Default notice of which has been or is to be withheld in
accordance with the provisions of Section 12.02 hereof.
(B) The Trustees shall transmit to the Bondholders as hereinafter
provided a brief report with respect to:
(1) the release, or release and substitution, of property
subject to the Lien of this Indenture (and the consideration therefor,
if any) unless the Fair Value of such property, as set forth in the
certificate or opinion required by Section 10.04 is less than ten
percentum (10%) of the principal amount of Bonds Outstanding at the
time of such release, or such release and substitution, such report to
be so transmitted within 90 days after such time; and
(2) the character and amount of any advances (and if the
Trustees elect so to state, the circumstances surrounding the making
thereof) made by the Trustees, as such, since the date of the last
report transmitted pursuant to the provisions of subdivision (A) of
this Section 7.03 (or if no such report has yet been so transmitted
since the date of this Indenture) for the reimbursement of which they
claim or may claim a lien or charge, prior to that of the Bonds, on the
Trust Estate or on property or funds held or collected by them as
Trustees and which they have not previously reported pursuant to this
clause (2) if such advances remaining unpaid at any time aggregate not
more than ten PER CENTUM (10%) OF THE principal amount of Bonds
Outstanding at such time, such report to be transmitted within 90 days
after such time.
(C) Reports pursuant to this Section 7.03 shall be transmitted by mail:
(1) to all registered holders, as the names and addresses of
such holders appear on the Bond Register;
(2) to such holders as have, within two years preceding such
transmission, filed their names and addresses with the Corporate
Trustee for that purpose; and
(3) except in the case of reports pursuant to subdivision (B)
of this Section 7.03, to each Bondholder whose name and address are
preserved at the time by the Corporate Trustee, as provided in
subdivision (B) of Section 7.01 hereof.
(D) A copy of each such report shall, at the time of such transmission
to Bondholders, be filed by the Trustees with each stock exchange upon which the
Bonds are listed and also with the Securities and Exchange Commission. The
Company will notify the Trustees of the name and address of each stock exchange
on which the Bonds are listed.
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ARTICLE 8
REDEMPTION OF 1989 BONDS AT COMPANY'S OPTION
SECTION 8.01. The 1989 Bonds shall be redeemable at any time prior to
the stated Maturity thereof, upon notice as provided in this Article 8, as a
whole at any time, or in part from time to time (but only in principal amounts
of $1,000 or any integral multiple thereof), at the option of the Company;
provided, however, that the company may not redeem any 1989 Bonds pursuant to
such option prior to January 15, 1993. Any such redemption shall be at the
applicable redemption prices (expressed in percentages of the principal amount)
set forth in the 1989 Bonds together with accrued and unpaid interest on the
principal amount to be redeemed to the Redemption Date.
The election of the Company to redeem any 1989 Bonds shall be evidenced
by a Certified Resolution. Whenever any of the 1989 Bonds Outstanding are to be
redeemed pursuant to this Section 8.01, the Company shall give the Corporate
Trustee at least 60 days' written notice (or such shorter period of time as is
acceptable to the Corporate Trustee) prior to the Redemption Date (unless a
shorter notice shall be satisfactory to the Corporate Trustee) of such
Redemption Date and of the principal amount of 1989 Bonds to be redeemed.
SECTION 8.02. In case of the redemption of less than all of the
Outstanding 1989 Bonds, the 1989 Bonds to be redeemed shall be selected by the
Corporate Trustee by lot, not more than 60 days prior to the Redemption Date,
from the Outstanding 1989 Bonds not previously called for redemption, which
method may provide for the selection for redemption of portions (equal to $1,000
or any integral multiple thereof) of the principal amount of 1989 Bonds of a
principal amount larger than $1,000.
In the case of any partial redemption, the Corporate Trustee shall
promptly notify the Company in writing of the serial numbers (and, in the case
of any 1989 Bond which is to be redeemed in part only, the portion of the
principal amount thereof to be redeemed) of the 1989 Bonds selected for
redemption.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of 1989 Bonds shall relate,
in the case of any 1989 Bond redeemed or to be redeemed only in part, to the
portion of the principal of such 1989 Bond which has been or is to be redeemed.
SECTION 8.03. Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of 1989 Bonds to be redeemed, at his last
address appearing in the Bond Register.
All notices of redemption shall state:
(A) The Redemption Date;
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(B) The redemption price;
(C) If less than all Outstanding 1989 Bonds are to be
redeemed, the serial numbers (and, in the case of any 1989 Bond which
is to be redeemed in part only, the portion of the principal amount
thereof to be redeemed) of the 1989 Bonds to be redeemed;
(D) That on the Redemption Date the redemption price of each
of the 1989 Bonds to be redeemed will become due and payable, and that
interest thereon shall cease to accrue from and after said date;
(E) The place where such 1989 Bonds are to be surrendered for
payment of the redemption price, which shall be the office or agency of
the Company in the place of payment; and
(F) If it be the case, that such 1989 Bonds are to be redeemed
by the application of certain specified Deposited Cash.
Notice of redemption of 1989 Bonds to be redeemed shall be given by the
Company or, at the Company's request, by the Corporate Trustee in the name and
at the expense of the Company.
Failure to give notice of redemption, or any defect therein, to any
Holder of any 1989 Bond selected for redemption shall not impair or affect the
validity of the redemption of any other 1989 Bond.
SECTION 8.04. On or before the business day next preceding any
Redemption Date, the Company shall deposit with the Corporate Trustee or with a
paying agent (or, if the Company is acting as its own paying agent, segregate
and hold in trust as provided in Section 6.06(C) hereof) an amount of money
sufficient to pay the redemption price of all principal of, and (unless such
Redemption Date is an Interest Payment Date) accrued interest on, the 1989 Bonds
which are to be redeemed on that date.
SECTION 8.05. Notice of redemption having been given as aforesaid, the
1989 Bonds so to be redeemed shall, on the Redemption Date, become due and
payable at the redemption price therein specified and from and after such date
(unless the Company shall default in the payment of the redemption price) such
1989 Bonds shall cease to bear interest. Upon surrender of any such 1989 Bond
for redemption in accordance with said notice, such 1989 Bond shall be paid by
the Company at the redemption price together with accrued interest thereon to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such 1989 Bonds, or one or more predecessor 1989 Bonds, registered as
such on the relevant Regular Record Dates according to the terms and provisions
of Section 2.01 hereof.
If any 1989 Bond called for redemption shall not be so paid upon
surrender thereof for redemption, the principal, and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by the 1989
Bond.
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Any 1989 Bond which is to be redeemed only in part shall be surrendered
at the office or agency designated pursuant to Section 6.06(A) hereof (with, if
the Company or the Corporate Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Corporate Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Corporate Trustee
shall authenticate and deliver to the Holder of such 1989 Bond, without service
charge, a new 1989 Bond or Bonds of any authorized denomination or denominations
as requested by such Holder in an aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the 1989 Bond so
surrendered.
SECTION 8.06. All 1989 Bonds redeemed pursuant to Section 8.01 hereof
shall be forthwith cancelled and destroyed by the Corporate Trustee, and the
corporate Trustee shall deliver its certificate thereof to the Company.
ARTICLE 9.
REDEMPTION OF 1989 BONDS AT HOLDER'S OPTION
SECTION 9.01 Unless pursuant to the terms of Section 12.01, the 1989
Bonds have been declared due and payable prior to their maturity by reason of an
Event of Default and such Event of Default has not been waived and such
declaration has not been rescinded or annulled, a holder has the right to
present 1989 Bonds for payment prior to their maturity, and the Company will
redeem the same (or any portion of the principal amount thereof which is $1,000
or an integral multiple thereof, as the holder may specify) subject to the
limitations that the Company will not be obligated to redeem, during the period
beginning with the original issuance of the 1989 Bonds and ending January 15
1993, and during any 12 month period ending January 15 thereafter, (i) the
portion of a 1989 Bond or Bonds presented by a holder exceeding an aggregate
principal amount of $25,000 or (ii) 1989 Bonds in an aggregate principal amount
exceeding $700,000 Such $25,000 and $700,000 limitations are non-cumulative. If
the Company, although not obligated to do so, chooses to redeem 1989 Bonds of
any holder in any such period in excess of the $25,000 limitation, such
redemption, to the extent that it exceeds the $25,000 limitation for any holder,
shall not be included in the computation of the $700,000 limitation for such or
any succeeding period.
SECTION 9.02. Redemption of 1989 Bonds presented for payment prior to
December 15 immediately preceding the last day of each such 12 month period will
be made on the last day (January 15 of such period, beginning January 15 1993.
1989 Bonds not redeemed in any such period because they have not been presented
prior to the December 1 immediately preceding the last day (January 15 of that
period or because of the $25,000 or $700,000 limitations will be held in order
of their receipt for redemption during the following 12 month period(s) until
redeemed, unless sooner withdrawn by the holder. Subject to the $25,000 and
$700,000 limitations, the Company will, upon the death of any holder, redeem
1989 Bonds within 60 days following receipt by the Corporate Trustee of a
written request therefor from such holder's personal representative, or
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surviving joint tenant(s), tenant by the entirety or tenant(s) in common. 1989
Bonds will be redeemed in order of their receipt by the Corporate Trustee,
except 1989 Bonds presented for payment in the event of death of the holder,
which will be given priority in order of their receipt.
1989 Bonds may be presented for redemption by delivering to the
Corporate Trustee: (i) a written request for redemption, in form satisfactory to
the Corporate Trustee, signed by the registered holder(s) or his duly authorized
representative, (ii) the 1989 Bond to be redeemed, free and clear of any liens
or encumbrances of any kind, and (iii) in the case of a request made by reason
of the death of a holder, appropriate evidence of death and, if made by a
representative of a deceased holder, appropriate evidence of authority to make
such request. No particular forms of request for redemption or authority to
request redemption are necessary. The price to be paid by the Company for all
1989 Bonds or portions thereof presented to it pursuant to the provisions
described in this Section is 100% of the principal amount thereof or portion
thereof plus accrued but unpaid interest to the date of payment. Any acquisition
of 1989 Bonds by the Company other than by redemption at the option of any
holder pursuant to this Section shall not be included in the computation of
either the $25,000 or $700,000 limitation for any period.
For purposes of this Section 9.02, a 1989 Bond held in tenancy by the
entirety, joint tenancy or tenancy in common will be deemed to be held by a
single holder and the death of a tenant by the entirety, joint tenant or tenant
in common will be deemed the death of a holder. The death of a person, who,
during his lifetime, was entitled to substantially all of the beneficial
interests of ownership of a 1989 Bond will be deemed the death of the holder,
regardless of the registered holder, if such beneficial interest can be
established to the satisfaction of the Corporate Trustee. For purposes of a
holder's request for redemption and a request for redemption on behalf of a
deceased holder, such beneficial interest shall be deemed to exist in cases of
street name or nominee ownership, ownership under the Uniform Gifts to Minors
Act, community property or other joint ownership arrangements between a husband
and wife (including individual retirement accounts or Xxxxx [H.R. 10] plans
maintained solely by or for the holder or decedent or by or for the holder or
decedent and his spouse), and trusts and certain other arrangements where a
person has substantially all of the beneficial ownership interests in the 1989
Bonds during his lifetime. Beneficial interests shall include the power to sell,
transfer or otherwise dispose of a 1989 Bond and the right to receive the
proceeds therefrom, as well as interest and principal payable with respect
thereto.
In the case of 1989 Bonds registered in the names of banks, trust
companies or broker-dealers who are members of a national securities exchange or
the National Association of Securities Dealers, Inc. ("Qualified Institutions"),
the 525,000 limitation shall apply to each beneficial owner of 1989 Bonds held
by a Qualified Institution and the death of such beneficial owner shall entitle
a Qualified Institution to seek redemption of such 1989 Bonds as if the deceased
beneficial owner were the record holder. Such Qualified Institution, in its
request for redemption on behalf of such beneficial owners, must submit
evidence, satisfactory to the Corporate Trustee, that it holds 1989 Bonds on
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behalf of such beneficial owner and must certify that the aggregate amount of
requests for redemption tendered by such Qualified Institution on behalf of such
beneficial owner in any such 12 month period does not exceed $25,000
In the case of any 1989 Bonds which are presented for redemption in
part only, upon such redemption the Company shall execute and the Corporate
Trustee shall authenticate and deliver to or on the order of the holder of such
1989 Bonds, without service charge, a new 1989 Bond(s), of any authorized
denomination or denominations as requested by such holder, in aggregate
principal amount equal to the unredeemed portion of the principal of the 1989
Bonds so presented.
Nothing herein shall prohibit the Company from redeeming, in acceptance
of tenders made pursuant hereto, 1989 Bonds in excess of the principal amount
that the Company is obligated to redeem, nor from purchasing any 1989 Bonds in
the open market. However, the Company may not use any 1989 Bonds purchased in
the open market as a credit against its redemption obligation hereunder.
SECTION 9.03. Any 1989 Bonds presented for redemption at the option of
the holder may be withdrawn by the person(s) presenting the same upon delivery
of a written request for such withdrawal to the Corporate Trustee (a) in cases
other than by reason of death of a holder prior to December 15, 1992, in the
case of the initial period, or prior to December 1, in the case of any
subsequent 12 month period, or (b) prior to the issuance of a check in payment
thereof in the case of 1989 Bonds presented by reason of the death of a holder.
SECTION 9.04. The Corporate Trustee shall maintain at its main office a
register (the "Redemption Register") in which it shall record, in order of
receipt, all requests for redemption received by the Corporate Trustee under
Section 9.02. Unless withdrawn, all such requests shall remain in effect during
the period in which they are received and thereafter from period to period,
until the 1989 Bonds which are the subject of such request have been redeemed.
SECTION 9.05. In the event that there shall occur a Fundamental
Structural Change with respect to the Company and as a result of such
Fundamental Structural Change the Company's consolidated partners capital after
such Fundamental Structural Change shall be decreased to less than $10,000,000
then each holder shall have the right, at the holder's option, to require the
Company to redeem such holder's 1989 Bonds, including any portion thereof which
is $1,000 or any integral multiple thereof on the date (the "Repurchase Date")
that is 100 days after the occurrence of the Fundamental Structural Change at
the redemption price in cash of 100% of the principal amount thereof or portion
thereof plus accrued but unpaid interest to the date of payment. Exercise of
this redemption option by a holder is irrevocable. The Company's obligation to
redeem the 1989 Bonds pursuant to this Section 9.05 shall not be subject to the
$25,000 individual or $700,000 aggregate redemption limitations. For purposes of
this Section 9.05, consolidated partners capital shall be deemed to include up
to $10,000,000 in fully subordinated convertible debt of the Company then
outstanding, if any, and which debt has been outstanding for at least 12 months.
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Within 30 days after the occurrence of a Fundamental Structural Change
of the Company that triggers a holder's redemption right pursuant to this
Section 9.05, the Company shall give notice of the occurrence of such
Fundamental structural Change, of the date before which a holder must notify the
Corporate Trustee of such holder's intention to exercise the redemption option
and of the procedure which such holder must follow to exercise such right. To
exercise the redemption' the holder of a 1989 Bond or Bonds must deliver to the
Corporate Trustee on or before the 90th day after the occurrence of the
Fundamental Structural Change: (i) written notice of such holder's redemption,
in form satisfactory to the Corporate Trustee, signed by the registered
holder(s) or his duly authorized representative and (ii) the 1989 Bond or Bonds
to be redeemed, free and clear of any liens or encumbrances of any kind.
In the case of any 1989 Bonds which are presented for redemption in
part only, upon such redemption the Company shall execute and the Corporate
Trustee shall authenticate and deliver to or on the order of the holder of such
1989 Bonds, without service charge, a new 1989 Bond(s), of any authorized
denomination or denominations as requested by such holder, in aggregate
principal amount equal to the unredeemed portion of the principal of the 1989
Bonds so presented.
SECTION 9.06. In the case of any 1989 Bonds or portion thereof which
are presented for redemption pursuant to this Article 9 and which have not been
redeemed at the time the Company gives notice of its election to redeem 1989
Bonds pursuant to Article 8, such 1989 Bonds or portion thereof shall first be
subject to redemption pursuant to Article 8 and if any such 1989 Bonds or
portion thereof are not redeemed pursuant to Article 8 they shall remain subject
to redemption pursuant to Article 9.
ARTICLE 10.
POSSESSION AND RELEASE OF MORTGAGED AND PLEDGED PROPERTY
SECTION 10.01. Unless an Event of Default shall have occurred and be
continuing, the Company or an Operating Subsidiary, as the case may be,
(A) Shall have the right to remain in possession and retain
exclusive control of the Mortgaged and Pledged Property and every
portion thereof (except Deposited Cash and such securities, if any, as
are held by the Corporate Trustee in lieu of Deposited Cash pursuant to
Section 20.02 hereof) with full power, freely and without hindrance by
the Trustees, or by any one or more of the Bondholders, to operate,
manage, develop, use and enjoy the Mortgaged and Pledged Propery and
every portion thereof;
(B) May, without obtaining any release or consent from the
Trustees, or either of them, grant or convey rights of way or easements
over or in respect of any of the Mortgaged and Pledged Property;
provided, however, that any such grant or conveyance qualifies as a
permitted Encumbrance hereunder and the Company within 30 business days
of such grant or conveyance furnishes the Corporate Trustee with an
Opinion of Counsel to said effect; and
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(C) May, from time to time, obtain the release from the Lien
of this Indenture, and the Trustees shall release from the Lien of this
Indenture, any of the Mortgaged and Pledged Property or any interest
therein, upon compliance by the Company with the provisions of either
Section 10.02 or Section 10.03 hereof or, in the case of Deposited
Cash, Sections 5.03 or 6.10 hereof.
SECTION 10.02. The Company may procure the release of, and the Trustees
shall release, any of the Mortgaged and Pledged Property from the Lien of this
Indenture, upon compliance by the Company with all the conditions hereinafter
set forth in this Section 10.02. The Trustees shall forthwith release any such
property and enter into any indenture or indentures supplemental hereto if
required for the purpose of effecting such release, and do such other and
further acts as may be necessary, upon receipt by the Corporate Trustee of the
following:
(A) An Application for any such release specifying the
Mortgaged and Pledged Property, release of which is being sought;
(B) An Officers' Certificate, the signers of which shall
include an accountant, certifying:
(1) a description of such Mortgaged and Pledged
Property which is to be released complying with the provisions
of Section 5.03(B)(1) hereof and a statement of the Fair Value
thereof;
(2) if any property or properties are to be subjected
to the Lien of this Indenture in substitution for the
Mortgaged and Pledged Property release of which is being
sought, the matters set forth in subdivisions (B)(1) through
(10) of Section 5.03 hereof with respect to each such property
which is to be substituted for the Mortgaged and Pledged
Property and the Fair Value of each such property;
(3) if, pursuant to the proviso in subdivision (D) of
this Section 10.02, the Company does not deposit the
consideration specified in clause (i), (ii), or (iii) of such
subdivision (D), a statement demonstrating, in such reasonable
detail as shall be satisfactory to the Corporate Trustee,
compliance with the conditions set forth in such proviso;
(4) that, to the best knowledge of the Company's
officers signing such Officers' Certificate, no event has
occurred and is continuing which would substantially alter the
appraised values set forth in the Current M.A.I. Appraisal
referred to in subdivision (E) of this Section 10.02; and
(5) that no Event of Default has occurred and is
continuing under this Indenture;
(C) An Opinion of Counsel:
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(1) That the release of the Mortgaged and Pledged Property which
is the subject of the Application specified in subdivision (A) of
this Section 10.02 is authorized hereunder; and
(2) If a property or properties are to be substituted for the
Mortgaged and Pledged Property to be released, stating, with respect
to each such property being so substituted and matters relating
thereto, the matters set forth in Section 5.03(E) hereof, except
that the supplemental indenture, Mortgage or other instruments
referred to therein shall be the ones referred to in subdivision (F)
of this Section 10.02.
(D) (i) Cash, by certified or official bank check payable to the
order of the Corporate Trustee, to be held in trust under this Indenture
in an amount equal to either (a) the Fair Value of the Mortgaged and
Pledged Property release of which is sought or (b) such amount which,
when added to the remaining Mortgaged and Pledged Property, causes the
Fair Value of all the Mortgaged and Pledged Property to exceed the
lesser of (X) 150% of the principal amount of the then Outstanding
Bonds, and (Y) $27,000,000 plus 135% of the original principal amount
issued of any series of Bonds issued hereunder other than the 1989
Bonds, or (ii) a transfer and assignment of a property or properties
125% of the Bondable Amount of which is at least equal to either (a)
the Fair Value of the remaining Mortgaged and Pledged Property release
of which is sought or (b) such property or properties which, when added
to the remaining Mortgaged and Pledged Property, causes the Fair Value
of all the remaining Mortgaged and Pledged Property plus 125% of the
Bondable Amount of the property to be subjected to the Lien of this
Indenture to exceed the lesser of (X) 150% of the principal of the then
Outstanding Bonds, and (Y) $27,000,000 plus 135% of the original
principal amount issued of any series of Bonds issued hereunder other
than the 1989 Bonds, or (iii) any combination of the types of property
enumerated in (i) and (ii) above solely at the option of the Company,
and (iv) a supplemental indenture and a Mortgage subjecting to the Lien
of this Indenture any property which is to be substituted for the
Mortgaged and Pledged Property release of which is sought hereunder;
provided, however, that the Company shall not be required to deposit
with the Corporate Trustee or convey and transfer to the Trustees the
consideration or any portion thereof specified in (i), (ii), or (iii)
above if (a) the Fair Value of all of the Mortgaged and Pledged
Property exceeds the lesser of (i) 150% of the principal of the then
Outstanding Bonds, or (ii) 135% of the original principal amount of the
Outstanding Bonds, (b) the Company's consolidated partners capital,
shown on a consolidated balance sheet of the Company as of a date not
more than 90 days prior to the release being sought, prepared in
accordance with generally accepted accounting principles, is not less
than $39,000,000 and (c) the sum of the Company's consolidated net
income before income taxes shown on its consolidated statements of
income for the 12 months ended with the date of such consolidated
balance sheet, prepared in accordance with generally accepted
accounting principles, plus fixed charges (as defined below) reflected
therein for such period shall not be less than twice the amount of such
fixed charges; "fixed charges" shall
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mean the sum of interest and amortization of debt discount and expense
and premium on all indebtedness (including capital lease obligations) of
the Company and its Subsidiaries, plus one-third of their lease
requirements reported as rent expense, excluding in all cases items
eliminated in consolidation;
(E) If a determination of Fair Value is required pursuant to Section
10.02(D), a Current M.A.I. Appraisal of Mortgaged and Pledged Property
currently or to be subjected to the Lien of this Indenture pursuant to
this Section 10.02 as may be so required; provided, however, that the
Company shall not be required to obtain an M.A.I. Appraisal in
connection with the release and substitution of the property located on
Xxxxx 0 Xxxxxxx Xxxxxx in Lawrenceburg, Tennessee and the substitution
therefor of the property located on Xxxxx 0, Xxxxxxx Xxxx in
Lawrenceburg, Tennessee if the Fair Value of such substituted property
is at least equal to the Fair Value of the property release of which is
being sought;
(F) Such Mortgage and other instruments (including any referred to
in subdivision (D) of this Section 10.02), if any, as in the Opinion of
Counsel specified in subdivision (C) of this Section 10.02 may be
necessary or advisable to subject to the Lien of this Indenture any
property to be substituted for the Mortgaged and Pledged Property to be
released;
(G)(1) If an Operating Subsidiary is the owner of the property
described in such Application, an agreement in recordable form, dated as
of the date of such Application and executed in the name and on behalf
of, and by two Executive Officers of such Subsidiary pursuant to which
such Subsidiary shall enter into a supplemental indenture granting a
first priority lien on such property to the Trustees and shall agree to
observe and perform the obligations under this Indenture which relate to
such Property; (2) in respect of any instrument setting forth rights
mortgaged and pledged as part of the Trust Estate with respect to such
Property, an agreement in recordable form, dated as of the date of such
Application and executed in the name and on behalf of, and by the
Executive Officers of, the Company or Operating Subsidiary, as the case
may be, that is a party to such instrument, pursuant to which the
Company or such Subsidiary, as the case may be, shall agree to assume
and perform its obligations under such instrument; and (3) an Opinion of
Counsel stating that each such agreement is a legal, valid and binding
obligation of the Company or such Subsidiary whose name is signed
thereto, enforceable in accordance with its terms (except as to matters
permitted pursuant to Section 20.04(E)); and
(H) Such other instruments (including without limitation any Opinion
of Counsel) as the Corporate Trustee may reasonably request.
The foregoing documents and consideration, if any, furnished pursuant
to the respective paragraphs of this Section 10.02 shall constitute full
authority to the Trustees for executing any quitclaim deed or instrument of
release requested pursuant to this Section 10.02, and the Trustees in so doing
shall not be liable to the Company or any of the Bondholders.
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Any cash deposited under this Section 10.02 with the Corporate Trustee
shall be Deposited Cash and may be paid out or applied by the Corporate Trustee
at any time or from time to time pursuant to the provisions of Article S hereof.
SECTION 10.03. The Company may procure the release of, and the Trustees
shall release, any of the Mortgaged and Pledged Property which has been or is
about to be taken by, or under threat of, exercise of the power of eminent
domain, or which has been or is about to be taken by any governmental body or
agency in the exercise of any right which it may have to purchase any part of
such Mortgaged and Pledged Property, or which shall be required to be disposed
of by a valid order of any court or other governmental body, agency or
instrumentality. The Trustees shall forthwith release any such Mortgaged and
Pledged Property and enter into any indentures supplemental hereto, Mortgages
and other instruments if required for the purpose of effecting such release, and
do such other and further acts as may be necessary, upon receipt by the
Corporate Trustee of the following:
(A) An Application for any such release specifying the Mortgaged and
Pledged Property which has been or will be taken by exercise of the
power of eminent domain or has been or will be purchased by a
governmental body or agency in the exercise of a right which it had or
has to purchase such Mortgaged and Pledged Property, or is being
disposed of pursuant to a valid order of any court or other governmental
body, agency or instrumentality requiring the disposition of such
Mortgaged and Pledged Property, as the case may be:
(B) An Officers' Certificate certifying:
(i) a description of such Mortgaged and Pledged Property
complying with the provisions of Section 5.02(B)(1) hereof and, if
as a result of such taking, the Company will be unable to carry on
the operations of such Mortgaged and Pledged Property in
substantially the same manner as they are being conducted prior to
such exercise of the power of eminent domain or such purchase, a
statement of the Fair Value thereof;
(ii) a statement of the amount of any cash and the amount, value
and general nature of any other consideration received or to be
received by the Company as the proceeds of such Mortgaged and
Pledged Property; and
(iii) a statement that such release is authorized under this
Section 10.03;
(C) If the consideration received or to be received or the Fair
Value of the Mortgaged and Pledged Property to be released, as indicated
in the aforesaid Officers' Certificate, is in excess of $500,000, an
Opinion of Counsel:
(i) if any property is to be received in exchange for Mortgaged
and Pledged Property to be released, stating to the extent
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;
applicable (and if not applicable, stating that such particular
provision is inapplicable), with respect to such property so
received in exchange, the matters set forth in subdivision (E) of
Section 5.03 hereof, except that the supplemental indenture,
Mortgage and other instruments referred to therein shall be the ones
referred to in subdivision (E) of this Section 10.03; and
(ii) if, as a result of such taking, the Company will be unable
to carry on the operations of such Mortgaged and Pledged Property in
substantially the same manner as they are being conducted prior to
such exercise of the power of eminent domain or such purchase, an
opinion to the effect that the Mortgaged and Pledged Property to be
released has been or is being taken by, or under threat of, the
exercise of the power of eminent domain or has been or will be
purchased by a governmental body or agency in the exercise of a
right which it had or has to purchase the same, or is being disposed
of pursuant to a valid order of any court or other governmental
body, agency or instrumentality requiring the disposition of such
property, as the case may be, and that such release is authorized
under this Section 10.03;
(D) In the event that such taking is a partial taking of a Mortgaged
and Pledged Property which pursuant to an Officers' Certificate, does
not decrease the number of beds at such Mortgaged and Pledged Property
and does not decrease the Fair Value of such property below the Fair
Value immediately prior to such taking, then in such event the Company
may retain all proceeds and consideration received as a result of such
taking. In all other cases, the Company shall pay to the Trustee cash,
by certified or official bank check payable to the order of the Trustee,
to be held in trust under this Indenture in an amount equal to (1) any
cash proceeds received, and a transfer and assignment of any other
consideration received, as proceeds for such Mortgaged and Pledged
Property and (2) in the event that the Company will be unable to carry
on the operations of such Mortgaged and Pledged Property in
substantially the manner as they are being conducted prior to such
exercise of the power of eminent domain or such purchase, the greater of
(i) any cash proceeds received, and a transfer and assignment of any
other consideration received, as proceeds for such Mortgaged and Pledged
Property and (ii) the Bondable Amount of the Mortgaged and Pledged
Property release of which is sought, and in any event a supplemental
indenture and a Mortgage subjecting to the Lien of this Indenture any
property which is received in exchange for the Mortgaged and Pledged
Property to be released hereunder;
(E) Such Mortgage and other instruments (including any referred to
in subdivision (D) of this Section 10.03), if any, as in the Opinion of
Counsel specified in subdivision (C) of this Section 10.03 may be
necessary or advisable to subject to the Lien of this Indenture any
property received in exchange for the Mortgaged and Pledged Property to
be released;
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(F) The Current M.A.I. Appraisal, if any, upon which any statement
made in the aforesaid Officers' Certificate is based;
(G)(1) If an Operating Subsidiary is the owner of the property
described in such Application, an agreement in recordable form, dated as
of the date of such Application and executed in the name and on behalf
of, and by two Executive Officers of, such Subsidiary pursuant to which
such Subsidiary shall enter into a supplemental indenture granting a
first priority lien on such property to the Trustees and shall agree to
observe and perform the obligations under this Indenture which relate to
such property; (2) in respect of any instrument setting forth rights
mortgaged and pledged as part of the Trust Estate with respect to such
property, an agreement in recordable form, dated as of the date of such
Application and executed in the name and on behalf of, and by the
Executive Officers of, the Company or Operating Subsidiary, as the case
may be, that is a party to such instrument, pursuant to which the
Company or such Subsidiary, as the case may be, shall agree to assume
and perform its obligations under such instrument; and (3) an Opinion of
Counsel stating that each such agreement is a legal, valid and binding
obligation of the Company or such Subsidiary whose name is signed
thereto, enforceable in accordance with its terms (subject to the
matters set forth in Section 20.04(E)); and
(H) Such other instruments (including without limitation any Opinion
of Counsel) as the Corporate Trustee may have reasonably requested.
The Trustees shall, upon receipt of the foregoing documents, give their
consent in writing to the amount of any award or allowance of compensation for
any such Mortgaged and Pledged Property in connection with any proceeding for
the taking of any of the Mortgaged and Pledged Property through the exercise of
the power of eminent domain or any right to purchase or obligation to sell
referred to above.
The foregoing documents and consideration furnished pursuant to the
respective paragraphs of this Section 10.03 shall constitute full authority to
the Trustees for executing any quitclaim deed or instrument of release or giving
any consent requested pursuant to this Section 10.03, and the Trustees in so
doing shall not be liable to the Company, any Operating Subsidiary, any of the
Bondholders or any other person.
Any cash deposited under this Section 10.03 shall be held as Deposited
Cash and shall be paid out or applied by the Corporate Trustee at any time or
from time to time pursuant to the provisions of Article 5, except that any
Deposited Cash arising under this Section 10.03 by payment pursuant to
Subsection (D)(i) of this Section 10.03 may be withdrawn pursuant to Section
5.03 in respect of a Mortgaged and Pledged Property in an amount equal to the
Fair Value of such Mortgaged and Pledged Property without any limitation to the
amount of the Bondable Amount thereof.
SECTION 10.04. Wherever requesting the release of any of the Mortgaged
and Pledged Property, the Company covenants and agrees that it will furnish to
the Corporate Trustee:
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(A) An Officers' Certificate stating that the provisions in this
Article 10 relating to the release, or release and substitution, of any
of the Mortgaged and Pledged Property have been complied with;
(B) An Opinion of Counsel stating that in the opinion of said
counsel the provisions of this Article 10 relating to the release, or
the release and substitution, of any of the Mortgaged and Pledged
Property have been complied with;
(C) Except as provided in Sections 10.03 and 10.02(D), a Current
certificate or opinion of an engineer, appraiser, or other expert as to
the Fair Value of any property or any securities to be released from the
Lien of this Indenture, which certificate or opinion shall state that in
the opinion of the person making the same, the proposed release will not
impair the security under this Indenture in contravention of the
provisions hereof except as otherwise provided in this Indenture. If the
Current Fair Value of any such property or securities released since the
commencement of the current calendar year, as set forth in such
certificates or opinions required by this Section 10.04, is 10% or more
of the aggregate principal amount of the Outstanding Bonds, then such
certificate or opinion shall be made by an Independent engineer,
appraiser, or other expert. However, such a certificate or opinion of an
Independent engineer, appraiser, or other expert shall not be required,
except as otherwise provided in this Indenture, in the case of any
release of any property or securities, if the Fair Value thereof as set
forth in the Current certificate or opinion required by this Section
10.04 is less than $25,000 or less than 1% of the aggregate principal
amount of the Outstanding Bonds.
SECTION 10.05. If the Company has, or has caused to be, sold, exchanged
or otherwise disposed of any property not included under the Lien of this
Indenture, and the Company requests the Trustees to furnish a written disclaimer
or quitclaim of any interest in any such property under this Indenture, the
Trustees shall execute such instrument upon delivery to the Corporate Trustee of
the following:
(A) An Application informing the Trustees of the sale, exchange or
other disposition made or proposed to be made and describing in
reasonable detail the property affected thereby, stating that such
property is not included under the Lien of this Indenture; and
(B) An Opinion of Counsel stating that the property described in the
aforesaid Application is not subject to the Lien of this Indenture.
The foregoing documents furnished pursuant to this Section 10.05 shall
constitute full authority to the Trustees to execute such disclaimer or
quitclaim and the Trustees in so doing shall not be liable to the Company, any
Subsidiary, any of the bondholders or any other person.
SECTION 10.06. In case the Mortgaged and Pledged Property, or any
portion thereof, shall be in the possession of a receiver or trustee, lawfully
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appointed, the powers hereinbefore conferred upon the Company with respect to
the release of property subject to the Lien of this Indenture may, subject to
the satisfaction of the conditions herein set forth, be exercised by such
receiver or trustee, and an instrument, request or certificate signed by such
receiver or trustee shall be deemed the equivalent of an instrument, an
Application or an Officers' Certificate of the Company, when such is required by
the provisions of this Article; and if the Trustees, or either of them, shall be
in possession of the Mortgaged and Pledged Property, or any portion thereof,
under any provision of this Indenture, then such power may be exercised by the
Trustees, or either of them, in their, its or his discretion.
SECTION 10.07. The Trustees shall execute any release, consent,
disclaimer or quitclaim under the provisions of Section 10.02, Section 10.03 or
Section 10.05 hereof, notwithstanding the fact that a Default or an Event of
Default shall have occurred and be continuing, and the Trustees may in their
absolute discretion (but shall not be obligated to) execute any release or
consent under any of the other provisions of this Article 10, notwithstanding
that at the time a Default or an Event of Default shall have occurred and be
continuing.
SECTION 10.08. Sections 10.02 and 10.03 hereof shall not be construed
as being in limitation of one another, but as separate and independent methods
of releasing or disposing of properties subject to the Lien of this Indenture.
ARTICLE 11.
PURCHASER IN GOOD FAITH
SECTION 11.01. No purchaser in good faith of any property purporting to
be released by the Trustees under Article 10 hereof, shall be bound to ascertain
the authority of the Trustees to execute any release, disclaimer or quitclaim or
be bound to inquire as to any documents or consideration required by the
provisions hereof for the exercise of such authority, or to see to the
application of any consideration paid by such purchaser.
ARTICLE 12.
REMEDIES OF TRUSTEES AND BONDHOLDERS UPON DEFAULT
SECTION 12.01. The following events are hereby defined for all purposes
of this Indenture (except where the term is otherwise defined for specific
purposes) as "Events of Default" (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(A) Failure to pay the principal of or the premium, if any, on any
Bond as and when the same shall become due and payable at maturity; or
(B) Failure to pay any installment of interest upon any Bond as and
when the same shall have become due and payable and continuance of such
default for a Period of 15 days; or
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(C) Default in the meeting or satisfaction of any redemption payment
with respect to any of the Bonds as and when the same shall become due
and payable, and continuance of such default for a period of 15 days; or
(D) The entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Operating 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 under the Federal Bankruptcy Act or any other applicable
Federal or State law, or appointing a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Company, any
Operating Subsidiary or any Subsidiary which is the owner of any
substantial part of the Company's or any Operating Subsidiary's
property, or ordering the winding-up or liquidation of its affairs, and
the continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(E) The institution by the Company or any Operating Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by
it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Act or any other
applicable Federal or State law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of the
Company, any Operating Subsidiary or any Subsidiary which is the owner
of any substantial part of the Company's or any Operating Subsidiary's
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 action by the
Company or any Operating Subsidiary in furtherance of any such action;
or
(F) 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 12.01 specifically dealt with, and other than a default in
the performance of Section 6.07 hereof, the breach of which is
specifically dealt with in Section 12.01(G) hereof), and continuance of
such default or breach for a period of 30 days after there has been
given, by registered or certified mail, to the Company by the Corporate
Trustee, or to the Corporate Trustee and the Company by the holders of
at least 10% in principal amount of the Outstanding Bonds affected (as
such term is defined in Section 19.02), 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
(G) An event of default as defined in any mortgage, indenture or
instrument, under which there may be issued, or by which there may be
secured or evidenced, any indebtedness of the Company, whether such
indebtedness now exists or shall hereafter be created, shall happen and
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shall result in such indebtedness in excess of $4,000,000 in aggregate
principal amount in any consecutive 18 months becoming or being
declared due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not be rescinded
or annulled within ten days after written notice to the Company from
the Corporate Trustee, or to the Corporate Trustee and the Company
from the Holders of not less than 25% in aggregate principal amount of
the Bonds then Outstanding;
(H) The failure of the Company to continue to manage the operations
conducted on a Mortgaged and Pledged Property unless such mortgaged
and Pledged Property is released and/or substituted pursuant to
sections 10.02 or 10.03 hereof.
SECTION 12.02. The Trustees shall, within 90 days after the occurrence
thereof, give by mail to the Bondholders, as their names and addresses appear in
the Bond Register notice of all defaults known to the Trustees, unless such
defaults shall have been cured or waived before the giving of such notice (the
term "Defaults" for the purposes of this Section 12.02 being hereby defined to
be the events specified in subdivisions (A), (B), (C), (D), (E), (F), (G) and
(H) of Section 12.01 hereof, not including any periods of grace provided for in
said subdivisions and irrespective of the mailing of any written demand
specified in subdivisions (F) and (G) but in the case of any default as
specified in subdivisions (B) and (C) of Section 12.01 hereof, no such notice
shall be given until at least 15 days after the occurrence thereof, and in the
case of any default as specified in subdivisions (F) and (G) of Section 12.01
hereof, no such notice shall be given until at least 30 days after the
occurrence thereof); provided, however, that except in the case of default in
the payment of the principal of or the premium, if any, or the interest on any
of the Bonds, the Corporate Trustee shall be protected in withholding such
notice if and so long as the board of directors, board of trustees, executive
committee, or a trust committee of directors, trustee and/or Responsible
Officers, of the Corporate Trustee in good faith determines that the withholding
of such notice is in the interests of the Bondholders and the Individual Trustee
shall be protected in withholding such notice if and so long as the Individual
Trustee in good faith determines that the withholding of such notice is in the
interests of the Bondholders.
SECTION 12.03. If an Event of Default occurs and is continuing as
defined in Section 12.01 hereof, the Corporate Trustee may and the Holders of
not less than 25% in principal amount of the Bonds at the time Outstanding
hereunder may, by notice in writing given to the Company (and to the Corporate
Trustee if such notice be given by Bondholders) declare the principal of all of
the Bonds hereby secured and the interest accrued thereon immediately due and
payable, and such principal and interest shall thereupon become and be
immediately due and payable; subject, however, to the right of the Holders of a
majority in principal amount of all Outstanding Bonds, by written notice to the
Company and to the Trustees thereafter to consent to a waiver of such past
Default before any final judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided or any sale of
Mortgaged and Pledged Property or any material portion thereof shall have been
made and if before such
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judgment, decree or sale all covenants with respect to which Default shall have
been made shall be fully performed or made good to the reasonable satisfaction
Of the Corporate Trustee, and all arrears of interest with interest upon overdue
installments of interest (to the extent that payment of such interest is
enforceable under applicable law) at the interest rate per annum applicable to
the particular series of Bonds and the principal and premium, if any, of all
Outstanding Bonds which shall have become due otherwise than by acceleration
under this Section 12.03 and all sums paid or advanced by the Trustees hereunder
and the reasonable compensation, disbursements, expenses and advances of the
Trustees, their agents and attorneys, and all other indebtedness secured hereby,
except the principal of any Bonds not then due by their terms and except
interest accrued on such Bonds since the last Interest Payment Date, shall be
paid, or the amount thereof shall be paid to the Corporate Trustee for the
benefit of those entitled thereto. Such Default and its consequences shall
thereupon be deemed to have been cured and such declaration of the maturity of
the Bonds shall be void and of no further effect, but no such cure shall extend
to or affect any subsequent Default or impair any right consequent thereon.
SECTION 12.04. Upon the occurrence of one or more Events of Default, as
defined in Section 12.01 hereof, and only for as long as any such Event of
Default shall continue, the Trustees, or either of them, personally or by their,
its or his agents or attorneys, to the extent permitted by law, may, but, shall
not be obligated to, enter into and upon all or any part of the Mortgaged and
Pledged Property, and may exclude the Company and/or any Operating Subsidiary
and their respective agents, employees and other servants wholly therefrom; and
having and holding the same, use, control, operate and manage the Mortgaged and
Pledged Property or any part thereof, and conduct the business of the Company in
respect thereto, either personally, or by its agents or attorneys or by the
Company's and/or the Operating Subsidiary's superintendents, managers, agents,
servants, attorneys, receivers or trustees, in such manner as the Trustees, or
either of them may deem best. Upon every such entry the Trustees, or either
of them, at the expense of the Mortgaged and Pledged Property, if necessary
from time to time, either by purchase, repair or construction, may maintain and
restore the machinery, tools, fixtures, and other property, buildings, bridges
and structures erected upon or provided for use in connection with the
Mortgaged and Pledged Property whereof it shall become possessed as aforesaid;
and likewise, if necessary from time to time, at the expense of the Mortgaged
and Pledged Property, may make all necessary or proper repairs, renewals and
replacements and useful alterations, additions, betterments, and improvements
to and on the Mortgaged and Pledged Property, and purchase or otherwise secure
the use of additional machinery, tools, fixtures and other property for use
thereon, all to the extent permitted by law. To the extent permitted by law and
only for so long as such Event of Default shall continue, the Trustees, or
either of them, shall have the further right to manage the Mortgaged and
Pledged Property and to carry on the business and exercise all rights and
powers of the Company and/or the Operating Subsidiary with respect thereto,
either in the name of the Company and/or the Operating Subsidiary or otherwise,
as the Trustees, or either of them, shall deem best, and shall be entitled to
collect and receive all earnings, income, rents, issues, revenues and profits
of the same and every part thereof. After deducting the expenses of conducting
the business thereof, and of all necessary repairs, maintenance, renewals,
replacements, alterations,
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additions, betterments and improvements, and all payments which may be made for
taxes, assessments, insurance and other proper charges having liens on the
Mortgaged and Pledged Property, or any part thereof, prior to the Lien of this
Indenture, as well as reasonable compensation for its own services and for the
services of its counsel, agents, clerks, servants and other employees, the
Trustees, or either of them, shall apply the balance of the moneys derived from
the operation and management of the Mortgaged and Pledged Property and business
together with Deposited Cash, if any, subject to the Corporate Trustee's
discretion as to timing and the amount of funds to be disbursed, as follows:
(i) if the principal of the Outstanding Bonds shall not have become
due and be unpaid, to the payment of the interest due and unpaid on the
Outstanding Bonds, in the order of the maturity of the installments of
such interest, such payments to be made ratably to the persons entitled
thereto without discrimination or preference;
(ii) if the principal of the Outstanding Bonds shall have become
due by declaration or otherwise, and shall be unpaid, then to the
payment of such principal of and the premium, if any, and the interest
on the Outstanding Bonds, with interest on the overdue principal and (to
the extent that payment of such interest is enforceable under applicable
law) on overdue installments of interest at the interest rate per annum
applicable to the particular series of Bonds; and in case such proceeds
shall be insufficient to pay in full the amounts so due and unpaid, then
to the payment thereof ratably, according to the aggregate of such
principal, premium and interest, without preference or priority as to
any Outstanding Bond over any other Outstanding Bond or of principal,
premium, if any, or interest over principal, premium, if any, or
interest, or of any installment of interest over any other installment
of interest, upon presentation of such Bonds and their surrender if
fully paid, or for proper notation if only partially paid; and
(iii) to the payment of the surplus, if any, to the Company, its
successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
In the event that the Trustees, or either of them, operates the
Mortgaged and Pledged Property pursuant to this Section 12.04, then the Company
shall indemnify and hold the Trustees and either of them harmless from and
against any and all claims, demands, damages, losses, liens, liabilities,
penalties, fines, lawsuits and other proceedings, costs and expenses (including
without limitation reasonable attorneys' fees), arising directly or indirectly
from or out of, or in any way connected with (a) the presence of any Hazardous
Substance on or about the Mortgaged and Pledged Property; or (b) any violation
or alleged violation of any local, state or federal environmental law,
regulation, ordinance or administrative or judicial order relating to Hazardous
Substances on or about or in the Mortgaged and Pledged Property, whether
attributable to events occurring before or after the Trustees', entry upon and
operation of the Mortgaged and Pledged Property. Such indemnification made
herein by the Company shall survive any termination of this Indenture.
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SECTION 12.05. Upon the occurrence of one or more Events of Default, as
defined in Section 12.01 hereof:
(a) At the direction of the Corporate Trustee, the Individual
Trustee, either himself or by such officer or agent as he may appoint in
his discretion, with or without entry if, and to the extent permitted by
law, may but shall not be obligated to sell, subject to any prior liens
thereon, to the highest bidder, all the Mortgaged and Pledged Property,
or any portion thereof, and all right, title and interest therein, in
one parcel or as separate parcels, as the Trustees, in their discretion,
deem in the best interests of the Holders of the Outstanding Bonds,
which sale or sales shall be made at public auction at such time and
place and upon such terms as the Trustees, or either of them, may fix
and briefly specify in the notice of sale to be given as hereinafter
provided in Section 12.06; and
(b) The Trustees, or either of them, by such officer or agent as
they may appoint in their, its or his discretion, with or without entry,
may proceed to protect and enforce their, its, or his rights and the
rights of holders of the Outstanding Bonds by a suit or suits in equity
or at law, whether for the specific performance of any covenant or
agreement contained herein, or in aid of the execution of any power
herein granted, or for the foreclosure of this Indenture, or for the
enforcement of any other appropriate legal or equitable remedy, as the
Trustees, or either of them, shall deem most effectual to protect and
enforce any of their, its or his rights or duties and the rights of
Holders of the Outstanding Bonds.
Upon the written request of the Holders of a majority in principal
amount of the then Outstanding Bonds, in case an Event of Default shall have
occurred and be continuing as aforesaid, subject to Sections 16.02 and 16.06, it
shall be the duty of the Trustees, or either of them, upon being indemnified as
provided in Section 12.21, to exercise such one or more of the remedies
available for the protection and enforcement of their rights and the rights of
the Bondholders (including the exercise of the powers of entry or sale herein
conferred, or the taking of appropriate judicial proceedings by action, suit or
otherwise) as the Trustees, or either of them, shall deem best.
SECTION 12.06. Notice of any sale pursuant to any provision of this
Indenture shall state the time and place of said sale, and shall contain a brief
general description of the property or properties to be sold, and shall be
sufficiently given if published once in each week for three successive weeks
prior to such sale in a Daily Newspaper in Nashville, Tennessee, New York, New
York and in the relevant area in which the parcel or parcels proposed to be sold
are situated, and in such other manner as may be required by law.
SECTION 12.07. The Trustees, or either of them, from time to time for
good cause may adjourn any sale to be made under the provisions of this
Indenture, by announcement at the time and place appointed for such sale, or for
such adjourned sale or sales, and without further notice or publication (unless
otherwise required by law), such sale may be made at any time or place to which
the same shall be so adjourned.
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SECTION 12.08. Upon the completion of any sale or sales under this
Indenture, the Trustees, or either of them, or the court officer conducting the
sales shall execute and deliver to the purchaser or purchasers a good and
sufficient xxxx or bills of sale and deed or deeds of conveyance of the property
sold. The Company agrees, and will cause the Operating Subsidiaries to agree,
that the Trustees, or either of them, and their, its or his successors (i) are
hereby irrevocably appointed the true and lawful attorneys of the Company and
the Operating Subsidiaries in its and their name and xxxxx to execute and
deliver all necessary deeds, bills of sale and conveyances of the Mortgaged and
Pledged Property, and (ii) may substitute one or more persons with like power,
the Company and the Operating Subsidiaries hereby ratifying and confirming all
that their said attorney or attorneys or such substitute or substitutes, shall
lawfully do by virtue hereof. The Company further agrees, and will cause the
Operating Subsidiaries to agree, that the Company and the Operating
subsidiaries, if so requested by the Trustees, or either of them, shall ratify
such sale by executing and delivering such deeds of conveyance, bills of sale or
other instruments of assignment and transfer, as in the judgment of the
Trustees, or either of them, may be advisable.
SECTION 12.09. To the extent permitted by law, any such sale or sales
made under or by virtue of this Indenture, whether under the power of sale
hereby granted and conferred, or under or by virtue of any judicial proceedings,
shall operate to divest all right, title, interest, claim and demand whatsoever,
either at law or in equity, of the Compare and/or any of the Operating
Subsidiaries, of, in and to the premises and property sold, and shall be a
perpetual bar, both at law and in equity, against the Company and/or any of the
Operating Subsidiaries, its or their successors and assigns, and against any and
all persons claiming the premises and property sold, or any part thereof, from
through or under the Company and/or any of the Operating Subsidiaries, its or
their successors or assigns.
SECTION 12.10. No remedy herein conferred upon or reserved to the
Trustees, or either of them, or the Bondholders is intended to be exclusive of
any other right or remedy, but each and every such right or remedy shall be
cumulative, and shall be in addition to every other remedy given hereunder as
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission to exercise any right or power accruing upon any
Event of Default, as defined in Section 12.01 hereof, shall impair any such
right or power or shall be construed to be a waiver of any such Event of Default
or an acquiescence therein; and every such right and power may be exercised from
time to time and as often as may be deemed expedient.
No waiver of any Event of Default, as defined in Section 12.01 hereof,
whether by the Trustees or by the Bondholders, shall extend to or shall affect
any subsequent Event of Default or shall impair any rights or remedies
consequent thereon.
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SECTION 12.11. The holders of not less than a majority in principal
amount of the Bonds at the time Outstanding hereunder may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustees, or either of them, or exercising any trust or power conferred upon the
Trustees, or either of them; provided, however, that such direction shall not be
otherwise than in accordance with the provisions of law and this Indenture and
the Trustees, or either of them, may take any other action deemed proper by
them, or either of them, which is not inconsistent with such direction.
SECTION 12.12. Upon application of the Trustees, or either of them, to
any court of competent jurisdiction, if an Event of Default shall have occurred
and so long as it shall be continuing, to the extent permitted by law, a
receiver may be appointed to take possession of, and to operate, maintain and
manage the Mortgaged and Pledged Property or any part thereof; and in every case
when a receiver of the whole or of any part of said property shall be appointed
under this Section 12.12, or otherwise, the net income and profits of the
Mortgaged and Pledged Property shall be paid over to, and shall be received by,
the Trustees, or either of them, for the benefit of the holders of the
Outstanding Bonds to be applied as provided in Section 12.04; provided, however,
that, notwithstanding the appointment of any such receiver, the Corporate
Trustee shall be entitled to retain control of, and to collect all interest and
dividends or earnings on, any shares of stock, cash, bonds and other obligations
which may have been pledged with it as security hereunder. The provisions of
this Section 12.12 are subject to the condition that, if at any time after the
appointment of a receiver, all accrued and unpaid interest upon all Outstanding
Bonds, and the principal and premium, if any, of any Outstanding Bonds which
shall have become due otherwise than by acceleration under Section 12.03, and
the reasonable charges and expenses of the Trustees and their agents and
attorneys and of any receiver shall either be paid by or on behalf of the
Company or be collected out of the income of the Mortgaged and Pledged Property,
or be provided for by the deposit with the Corporate Trustee of a sum sufficient
to pay the same, and all other Events of Default made good to the reasonable
satisfaction of the Corporate Trustee, then and in every such case to the extent
permitted by law such receiver of all or a portion of the Mortgaged and Pledged
Property shall cease to act as such and such appointment shall be of no further
force and effect and all Events of Default shall be deemed to be cured, but no
such cure or avoidance shall extend or affect any subsequent Default or impair
any right consequent thereon.
SECTION 12.13. Upon any sale being made either under the power of sale
hereby given or pursuant to any judicial proceedings for the foreclosure or
otherwise for the enforcement of this Indenture, the principal of all Bonds then
secured hereby, if not previously due, shall become and be immediately due and
payable.
SECTION 12.14. Upon any sale made either under the power of sale hereby
given or pursuant to any judicial proceedings for foreclosure or otherwise for
the enforcement of this Indenture, any Bondholder or Bondholders or the Trustees
may bid for and purchase the Mortgaged and Pledged Property or any part thereof
and upon compliance with the terms of sale may hold, retain and possess and
dispose of such property in his, their or its own absolute right without further
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accountability, and, for the purpose of making settlement or payment for the
property or properties purchased, any purchaser at any such sale may, in paying
the purchase money, apply any of the Bonds Outstanding hereunder and any matured
and unpaid interest obligations hereby secured, to the extent herein set forth;
such purchaser shall present such Bonds in order that there may be credited as
paid thereon the sums payable out of the net proceeds of such sale to the owner
of such Bonds as his proportionate share of such net proceeds; and such
purchaser shall be credited on account of the purchase price payable by him with
the sums payable out of such net proceeds which shall be applicable to the
payment of and which shall have been credited upon the Bonds so presented.
SECTION 12.15. Upon any sale made either under the power of sale hereby
given or pursuant to judicial proceedings for the foreclosure or otherwise for
the enforcement of this Indenture, the receipt of the Trustees or of the officer
making such sale shall be a sufficient discharge to the purchaser or purchasers
at any sale for his or their purchase money and such purchaser or purchasers,
his or their assigns or personal representatives, shall not, after paying such
purchase money and receiving such receipt of the Trustees or of such officer
therefor, be obliged to see to the application of such purchase money, or be in
any way answerable for any loss, misapplication or nonapplication thereof.
SECTION 12.16. The purchase money or proceeds of any sale made either
under the power of sale hereby given, or pursuant to judicial proceedings for
the foreclosure or otherwise for the enforcement of this Indenture, shall be
applied, as follows:
First. To the payment of all taxes, assessments, governmental
charges, Permitted Encumbrances and liens prior to the Lien of this
Indenture, except those subject to which such sale shall have been made,
and all of the costs and expenses of such sale, including reasonable
compensation to the Trustees, their agents and its attorneys, and of all
other sums payable to the Trustees hereunder by reason of any expenses
or liability incurred or advances made in connection with the management
or administration of the trusts hereby created;
Second. To the payment in full of the amounts then due and unpaid
for the principal of and the premium, if any, and the interest on the
Outstanding Bonds, with interest on the overdue principal and (to the
extent that payment of such interest is enforceable under applicable
law) on overdue installments of interest at the interest rate per annum
applicable to the particular series of Bonds; and in case such proceeds
shall be insufficient to pay in full the amounts so due and unpaid, then
to the payment thereof ratably, according to the aggregate of such
principal, premium and interest, without preference or priority as to
any Outstanding Bond over any other Outstanding Bond or of principal,
premium, if any, or interest over principal, premium, if any, or
interest, or of any installment of interest over any other installment
of interest, upon presentation of such Bonds and their surrender if
fully paid, or for proper notation if only partially paid; and
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Third. Any surplus thereof remaining to the Company, its successors
or assigns or to whosoever may be lawfully entitled to receive the same,
or as a court of competent jurisdiction may direct.
SECTION 12.17. To the extent that such rights may then lawfully be
waived, neither the Company nor any Operating Subsidiary nor any one claiming
through or under it or them shall or will insist upon, or plead, or in any
manner whatsoever, claim, or seek to take advantage of any appraisement,
valuation, stay, extension or redemption laws now or hereafter in force in any
locality where any of the Mortgaged and Pledged Property may be situated, in
order to prevent or hinder the enforcement of foreclosure of this Indenture, or
the absolute sale of the Mortgaged and Pledged Property, or the final and
absolute putting into possession thereof immediately after such sale, of the
purchaser or purchasers thereat, but the Company, for itself and all Operating
Subsidiaries and all who may claim through or under it or them, hereby waive, to
the extent that it or they lawfully may do so, the benefit of all such laws and
all right of appraisement and redemption (statutory or otherwise) or any equity
of redemption to which it or they may be entitled under the laws of any
jurisdiction where any of the Mortgaged and Pledged Property may be situated.
The Company, for itself and all Operating Subsidiaries and all who may claim
through or under it or them, waives to the extent that it or they lawfully made
do so, any and all right to have the estates comprised in the security intended
to be created hereby marshalled upon any foreclosure of the Lien of this
Indenture, and agrees that any court having jurisdiction to foreclose such Lien
may sell the Mortgaged and Pledged Property in part or as an entirety.
SECTION 12.18. (A) The Company covenants that (a) in case default shall
be made in the payment of any installment of interest upon any of the Bonds as
and when the same shall become due and payable, and such default shall have
continued for a period of 15 days, or (b) in case default shall be made in the
payment of the principal of, and premium, if any, on, any of the Bonds as and
when the same shall have become due and payable at maturity, then upon demand of
the Trustees, or either of them, the Company will pay to the Trustees, or either
of them, for the benefit of the Holders of the Bonds, the whole amount that then
shall have become due and payable on all such Bonds for principal, and premium,
if any, and interest, with interest upon the overdue principal, and premium, if
any, and (to the extent that payment of such interest is enforceable under
applicable law) upon the overdue installments of interest at the respective
applicable rates borne by the Bonds of the particular series; 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 Trustees, or either of them, their, its or
his agents and counsel.
In case the Company shall fail to pay the same forthwith upon such
demand, the Trustees, or either of them, in their, its or his own names or name
and as trustees or trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon the Bonds 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 Bonds, wherever situated.
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(B) If an Event of Default occurs and is continuing, the Trustees, or
either of them, may in the exercise of discretion proceed to protect and
enforce their, its or his rights and the rights of the Bondholders by such
appropriate judicial proceedings as deemed 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.
(C) In case of a sale of the Mortgaged and Pledged Property or any part
thereof, the Trustees, or either of them, in their, its or his name and as
trustees or trustee of an express trust, shall be entitled to enforce payment
of, and to receive, all amounts then remaining due and unpaid upon any and all
of the Bonds, for the benefit of the Holders thereof, and shall be entitled to
institute and prosecute any action and enforce any judgment or final decree as
aforesaid for any portion of the said debt remaining unpaid, to the extent
permitted by law. No judgment or decree obtained by the Trustees, or either of
them, and no levy of any execution upon the Mortgaged and Pledged Property, or
upon any other property, shall in any manner, or to any extent, affect the Lien
of this Indenture upon the Mortgaged and Pledged Property, or any part thereof,
or any lien, rights, powers or remedies of the Trustees, or either of them,
hereunder, or any lien, rights, powers or remedies of the Bondholders, but such
lien, rights, powers and remedies shall continue unimpaired as before, except
as otherwise provided by law. Nothing in this paragraph herein contained shall
be construed as entitling the Trustees, or either of them, to recover more than
the amounts then due and unpaid upon the Outstanding Bonds, plus costs and
expenses reasonably incurred in the proceedings resulting in the collection of
moneys.
(D) Any moneys collected by the Trustees, or either of them, under this
Section 12.18 shall be applied by the Trustees:
FIRST. To the payment of the costs and expenses reasonably incurred
(including any sums due the Trustees) in the proceedings resulting in the
collection of such moneys.
SECOND. To the payment of the amounts then due and unpaid upon the
Outstanding Bonds for principal of and the premium, if any, and the
interest on the Outstanding Bonds, with interest on the overdue principal
and (to the extent that payment of such interest is enforceable under
applicable law) on overdue installments of interest at the interest rate
per annum applicable to the particular series of Bonds; and in case such
proceeds shall be insufficient to pay in full the amounts so due and
unpaid, then to the payment thereof ratably, according to the aggregate of
such principal, premium and interest, without preference or priority as to
any Outstanding Bond over any other Outstanding Bond or of principal,
premium, if any, or interest over principal, premium, if any, or interest,
or of any installment of interest over any other installment of interest,
upon presentation of such Bonds and their surrender if fully paid, or for
proper notation if only partially paid.
SECTION 12.19. All rights of action and claims under this Indenture or the
Bonds may be prosecuted and enforced by the Trustees, or either of them,
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without the possession of any of the Bonds or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustees, or either of them, shall be brought in their, its or his own name as
trustees or 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 Trustees, or either of them, their, its or
his agents and counsel, be for the ratable benefit of the holders of the
Outstanding Bonds in respect of which such judgment has been recovered.
SECTION 12.20. The Trustees, or either of them (irrespective of whether
the principal of the Bonds shall then be due and payable as therein expressed
and irrespective of whether the Trustees, or either of them, shall have made
any demand for such payment), may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustees, or either of them, and of the Bondholders allowed in any judicial
proceedings relative to the Company and/or an Operating Subsidiary or their
respective creditors or property. In case of any receivership, insolvency,
bankruptcy, reorganization or other similar proceedings affecting the Company
and/or an Operating Subsidiary or their respective property, the Trustees, or
either of them, (irrespective of whether the principal of the Bonds shall then
be due and payable and irrespective of whether the Trustees, or either of them,
shall have made any demand for such payment) shall be entitled and empowered
either in their, its or his own name or as trustees or trustee of an express or
as attorney in fact for the Holders of the Bonds, or in any one or more of such
capacities, to file a proof of claim for the whole amount of principal and
interest (with interest upon such overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest at the interest rate per annum applicable to the
particular series of Bonds) and any premium which may be or become owing and
unpaid in respect of the Bonds and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustees, or
either of them (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustees, or either of them, their, its or
his agents and counsel) and of the Bondholders allowed in any such proceedings
and to collect and receive any moneys or other property payable or deliverable
on any such claims and to distribute the same; and any receiver, assignee,
trustee, liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Bondholder to make such
payments to the Trustees, or either of them, and in the event that the Trustees
shall consent to the making of such payments directly to the Bondholders, to
pay to the Trustees, or either of them, any amount due the Trustees, or either
of them, for the reasonable compensation, expenses, disbursements and advances
of the Trustees, or either of them, their agents and counsel, and any other
amounts due the Trustees, or either of them, under Section 16.08.
Nothing herein contained shall be deemed to authorize the Trustees, or
either of them, to authorize or consent to or accept or adopt on behalf of any
Bondholder any plan of reorganization, arrangement, adjustment or composition
affecting the Bonds or the rights of any Holder thereof, or to authorize the
Trustees, or either of them, to vote in respect of the claim of any Bondholder
in any such proceeding.
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The Trustees, to the extent permitted by law, shall be entitled to xxx and
recover judgment and/or to file and prove such claim as aforesaid either before
or after or during the pendency of any Proceedings for the enforcement of the
Lien of this Indenture upon the Mortgaged and Pledged Property.
SECTION 12.21. No Bondholder shall have any right to institute any suit,
action or proceeding in equity or at law for the foreclosure of this Indenture,
or for the execution of any trust hereunder, including the appointment of a
receiver or trustee, or for any other remedy hereunder, unless (a) such holder
previously shall have delivered to the Trustees written notice that one or more
Events of Default, which Events of Default shall be specified in such notice,
has occurred and is continuing, and (b) the holders of not less than 25% in
principal amount of the then Outstanding Bonds shall have requested the
Trustees in writing and shall have afforded to them reasonable opportunity
either to proceed to exercise the powers hereinbefore granted, or to institute
such action, suit or proceeding in its own name, and (c) one or more
Bondholders shall have offered to the Trustees adequate security and indemnity,
satisfactory to them, against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustees, or either of them, shall have
refused or neglected to act on such notification, request and offer of
indemnity for at least 60 days and no direction inconsistent with such
notification shall have been given to the Trustees by holders of not less than
a majority in principal amount of the Outstanding Bonds; and such notification,
request and offer of indemnity are hereby declared, in every such case, at the
option of the Trustees, or either of them, to be conditions precedent to the
exercise of the powers and trusts of this Indenture and to any action or cause
of action for foreclosure, including the appointment of a receiver or trustee,
or for any other remedy hereunder; it being understood and intended that no
Bondholder shall have any right in any manner whatsoever by his action to
affect, disturb or prejudice the rights of any other Holder or the Lien of this
Indenture, or obtain or seek to obtain priority or preference over any other
holder, or to enforce any right hereunder, except in the manner herein provided
to the extent permitted by law, and that all proceedings at law or in equity
shall be instituted, had or maintained in the manner herein provided, and for
the equal and ratable benefit of all holders of the Outstanding Bonds.
SECTION 12.22. Notwithstanding any other provision of this Indenture, the
right of any holder of any Bond to receive payment of the principal of,
premium, if any, and interest on such Bond, on or after the respective Stated
Maturities expressed in such Bond, or to institute suit for the enforcement of
any such payment on or after such respective Stated Maturities, shall not be
impaired or affected without the consent of such holder, except that no
Bondholder may institute any such suit if and to the extent that the
institution or prosecution thereof or the entry of judgment therein would,
under applicable law, result in the surrender, impairment, waiver, or loss of
the Lien of this Indenture upon any property subject hereto.
SECTION 12.23. All parties to this Indenture agree, and each holder of any
Bond by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustees, or
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either of them, for any action taken or omitted by them, it or him, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but to the extent permitted by law the provisions of
this Section 12.23 shall not apply to any suit instituted by the Trustees, or
either of them, to any suit instituted by any Bondholder or group of
Bondholders holding in the aggregate more than 10% in aggregate principal
amount of the outstanding Bonds, or to any suit instituted by any Bondholder
for the enforcement of the payment of the principal of, premium, if any, or
interest on any Bond on or after the respective Stated Maturities expressed in
such Bond (or, in the case of redemption, on or after the Redemption Date).
SECTION 12.24. To the extent that any provision of this Article 12 may be
invalid or unenforceable under any applicable law with respect to any of the
Mortgaged and Pledged Property, such provision shall be deemed inoperative and
inapplicable and shall not be included in the terms of this Indenture.
SECTION 12.25 The Company and any Operating Subsidiary may waive any
period of grace provided for in this Article 12.
SECTION 12.26. In case the Trustees or any Bondholder shall have proceeded
to enforce any right or remedy under this Indenture by foreclosure, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustees or to such
Bondholder, then and in every such case the Company, the Trustees and the
Bondholders, subject to any determination in such proceedings, shall be
restored severally and respectively to their former positions and rights
hereunder, and thereafter all rights, remedies and powers of the Trustees and
Bondholders shall continue as if no such proceedings had been instituted.
SECTION 12.27. The holders of not less than the required percentage in
principal amount of the Outstanding Bonds specified in Section 12.03 may on
behalf of the holders of all the Bonds waive any past Default hereunder and its
consequences, except a Default:
(1) in the payment of the principal of (or premium, if any) or
interest on any Bond, or
(2) in respect of a covenant or provision hereof which under Article
19 cannot be modified or amended without the consent of the holder of each
Outstanding Bond 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.
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ARTICLE 13.
EVIDENCE OF RIGHTS OF BONDHOLDERS AND OWNERSHIP OF BONDS
SECTION 13.01. Prior to due presentment for registration of transfer of
any Bond, the Company, the Trustees, or either of them, any Bond Registrar, or
any agent of the Company, the Trustees or of either of them may deem and treat
the person in whose name any Bond shall be registered at any given time upon
the Bond Register as the absolute owner of such Bond for the purpose of
receiving any payment of, or on account of, the principal, premium, if any, and
interest on such Bond and for all other purposes whether or not such Bond be
overdue; and neither the Company nor the Trustees, nor either of them, nor any
agent of the Company, the Trustee or either of them shall be bound by any
notice to the contrary. All such payments made in accordance with the
provisions of this Section 13.01 shall be valid, and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Bond.
ARTICLE 14.
IMMUNITY OF ORGANIZERS, SUBSCRIBERS TO THE UNITS,
LIMITED PARTNERS, OFFICERS AND DIRECTORS
SECTION 14.01. No recourse under or upon any obligation, covenant or
agreement contained in this Indenture (including any indenture supplemental
hereto) or in any Bond or because of the creation of any indebtedness hereby
secured, shall be had against any organizer, any past, present or future
subscriber to the Units, any limited partner, any officer or any director of
the Company or any Subsidiary or of any predecessor or successor corporation or
limited partnership, as such, either directly or through the Company or any
Subsidiary or any predecessor or successor corporation or limited partnership,
under any rule of law, statute or constitution or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise; it being
expressly agreed and understood that this Indenture and the obligations hereby
secured are solely partnership obligations, and that no such personal liability
shall attach to, or be incurred by, any such organizer, subscriber to the
Units, limited partner, officer or director of the Company or any Subsidiary or
of any predecessor or successor corporation or limited partnership, or any of
them, as such, because of the incurring of the indebtedness hereby authorized,
or under or by reason of any of the obligations, covenants or agreements
contained in this Indenture or in any of the Bonds or implied therefrom, and
that any and all such personal liability of every name and nature, and any and
all such rights and claims against every such organizer, subscriber to the
Units, limited partner, officer or director, as such, whether arising at common
law or in equity, or created by rule of law, statute, constitution or
otherwise, are expressly released and waived as a condition of, and as part of
the consideration for, the execution of this Indenture and the issue of the
Bonds and interest obligations secured hereby.
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ARTICLE 15.
CONSOLIDATION, MERGER, CONVEYANCE AND LEASE
SECTION 15.01. Notwithstanding the provisions of Section 6.08 or any other
provision of this Indenture, subject to the satisfaction of the conditions set
forth in this Article 15. and further subject to the provisions of Section
9.05, if applicable, nothing shall prevent the consolidation or merger of the
Company or any Subsidiary with or into any other limited partnership or limited
partnerships or corporations lawfully entitled to acquire and operate all of
the Mortgaged and Pledged Property, or shall prevent any sale, conveyance or
lease of all or substantially all of the property of the Company or any
Subsidiary to another person or persons, or shall prevent successive
consolidations, mergers, sales, conveyances or leases to which the Company or
any Subsidiary or any successor limited partnership or corporation shall be a
party; provided, however, (1) that upon any such consolidation or merger of the
Company and upon any such sale, conveyance or lease, the consolidated limited
partnership or the surviving or acquiring companies or limited partnerships, or
the transferee or lessee, as the case may be, shall execute prior to, or
contemporaneously with, such transaction such instruments as in the Opinion of
Counsel referred to in Section 15.03 are necessary or advisable to evidence the
assumption by such consolidated limited partnership or the surviving or
acquiring companies or limited partnerships, or transferee or lessee, as the
case may be, of the due and punctual payment of the principal of, premium, if
any, and interest on the Bonds and the due and punctual performance and
observance of all the covenants and obligations of the Company under this
Indenture; (2) that such transaction shall not disturb the continuance of the
Lien of this Indenture on all the Mortgaged and Pledged Property; and (3) that
immediately after giving effect to any such transaction, no Default or Event of
Default shall have occurred and be continuing.
SECTION 15.02. In case the Company pursuant to Section 15.01 shall be
consolidated or merged with any other limited partnership or corporation other
than where the Company is the survivor or the Company shall convey, transfer or
lease, subject to this Indenture, all or substantially all of its property, any
such successor limited partnership or corporation formed by such consolidation,
or into which the Company shall have been merged, or which shall have received
a conveyance, transfer or lease as aforesaid, upon executing, and causing to be
recorded, an indenture supplemental hereto, satisfactory to the Corporate
Trustee, whereby such successor limited partnership, limited partnerships,
corporation or corporations shall assume the due and punctual payment of the
principal of, premium, if any, and interest on, the Bonds and the performance
of all the covenants and conditions of this Indenture, shall succeed to all
rights, powers and privileges hereunder accruing to or vesting in, the Company,
with the same effect as if it or they had been named herein as the Company in
the first paragraph of this Indenture, and, if, after such conveyance or
transfer, the person named as the Company in the first paragraph of this
instrument or any Successor which shall theretofore have become such in the
manner prescribed in this Article 15, is to be voluntarily dissolved, such
person shall thereupon be released from all obligations hereunder and under the
Bonds. No such lease, however, shall have the effect of relieving the person
named as the Company in
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the first paragraph of this Indenture or any successor which shall theretofore
have become such in the manner prescribed in this Article 15, from its
liability under this Indenture or as obligor and maker of any of the Bonds.
Such successor limited partnership, limited partnerships, corporation or
corporations thereupon may cause to be signed and may issue, either in its or
their own name or in the name of the Company, any or all of the Bonds which
shall not theretofore have been signed on behalf of the Company and
authenticated by the Corporate Trustee; and, upon the request by two Executive
officers of said successor corporation, corporations, limited partnership or
limited partnerships in lieu of the Company, and subject to all the terms,
conditions and restrictions herein prescribed, the Corporate Trustee shall
authenticate and deliver any of such Bonds which shall have been previously
signed and delivered by the officers of the Company to the Corporate Trustee
for authentication and any of such Bonds which such successor limited
partnership or corporation shall thereafter cause to be signed and delivered to
the Corporate Trustee for that purpose.
Every such successor limited partnership or corporation shall possess and
from time to time may exercise each and every right and power hereunder of the
Company, in its name or otherwise.
SECTION 15.03. The Company covenants and agrees that no consolidation or
merger of the Company and no sale, conveyance or lease of the Company's
property as a whole or substantially as a whole, to which the Company or any
successor limited partnership or corporation shall be a party, shall be made or
effected, unless the provisions of this Article 15 shall have been complied
with, and unless there shall have been delivered to the Corporate Trustee an
Officers' Certificate and an Opinion of Counsel that such consolidation,
merger, sale, conveyance or lease as well as the supplemental indenture, and
any other document relating thereto complies in all respects with the
conditions precedent herein provided for relating to such transaction.
SECTION 15.04. Notwithstanding the foregoing, the transactions
contemplated by Article 15 are subject to the redemption provisions of Section
9.05, if applicable.
ARTICLE 16.
CONCERNING THE TRUSTEES
SECTION 16.01. There shall at all times be a Corporate Trustee hereunder
which shall be a banking corporation organized and doing business under the
laws of the United States of America or of any State, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $100,000,000 subject to supervision or examination by Federal or
State authority, or any affiliate of such a banking corporation, which also is
a corporation organized and doing business under the laws of the United States
of America or of any State, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $10,000,000
subject to supervision or examination by Federal or State authority. If such
corporation
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publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section 16.01 the combined capital and surplus of the
Corporate Trustee 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 the
Corporate Trustee shall cease to be eligible in accordance with the provisions
of this Section 16.01, it shall resign immediately in the manner and with the
effect hereinafter specified in this Article 16.
Any individual Trustee appointed in succession to the original Individual
Trustee shall always be an individual or, to the extent permitted by law, a
corporation organized and doing business under the laws of the United States of
America or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $100,000,000 subject
to supervision or examination by Federal or State authority, or any affiliate
of such a banking corporation, which also is a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $10,000,000 subject to supervision or
examination by Federal or State authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section 16.01 the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time a corporate Individual
Trustee shall cease to be eligible in accordance with the provisions of this
Section 16.01, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article 16.
SECTION 16.02. The Trustees, and each of them, accept the trusts hereby
created upon the terms and conditions in this Indenture specified, to all of
which the Company and the holders of Outstanding Bonds by their acceptance
thereof agree:
(A) Except during the continuance of an Event of Default,
(1) the Trustees; and each of them, undertake to perform such
duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustees, or either of them, and;
(2) in the absence of bad faith on its part, the Trustees, or
either of them, may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to them, him or it, and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustees, or either of
them, the Trustee to which the same is furnished shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture.
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(B) In case an Event of Default has occurred and is continuing,
the Trustees, or either of them, shall exercise such of the rights
and powers vested in them, it or him by this Indenture, and use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of his
own affairs.
(C) No provision of this Indenture shall be construed to relieve
the Trustees, or either of them, from liability for their, its or his
own negligent action, their, its or his own negligent failure to act,
or their, its or his own willful misconduct, except that
(1) this subdivision shall not be construed to limit the
effect of subdivision (A) of this Section;
(2) the Corporate Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer and the
Individual Trustee shall not be liable for any error of judgment
made in good faith by him unless it shall be proved that the
Corporate Trustee or Individual Trustee, as the case may be, was
negligent in ascertaining pertinent facts;
(3) the Trustees, or either of them, shall not be liable
with respect to any action taken or omitted to be taken by them,
it or him in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the
Bonds at the time Outstanding relating to the time, method, and
place of conducting any proceeding for any remedy available to
the Trustees, or either of them, or exercising any trust or
power conferred upon the Trustees, or either of them, under this
Indenture; and
(4) none of the provisions contained in this Indenture
shall require the Trustees, or either of them, to expend or risk
their, its or his own funds or otherwise incur any financial
liability in the performance of any of their, its or his duties
hereunder or in the exercise of any of their, its or his rights
or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to them, it or him, as
the case may be; and
(5) the permissive right of the Trustees to do things
enumerated in this Indenture shall not be construed as a duty,
and the Trustees shall not be answerable for other than their
negligence or willful default.
(D) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustees, or either of
them, shall be subject to the provisions of this Section.
(E) The Trustees shall not be required to take notice or be
deemed to have notice of any Event of Default hereunder except
failure by the
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Company to cause to be made any of the payments to the Corporate Trustee
required to be made to the Corporate Trustee by any provision hereof or
failure by the Company to file with the Corporate Trustee any document
required by this Indenture to be so filed subsequent to the issuance of
the Bonds, unless the Trustees shall be specifically notified in writing
of such Default by the Company or by the owners of at least 25% in
aggregate principal amount of Outstanding Bonds, and all notices or other
instruments required by this Indenture to be delivered to the Trustees,
must, in order to be effective, be delivered at the main office of the
Corporate Trustee, and in the absence of such notice so delivered the
Trustees may conclusively assume there is no Event of Default except as
aforesaid.
SECTION 16.03. The recitals contained herein and in the Bonds (except as
contained in the Corporate Trustee's certificate of authentication) shall be
taken as the statements of the Company, and the Trustees, or either of them,
assume no responsibility for the correctness of the same. The Trustees, or
either of them, make no representations as to the value of the Mortgaged and
Pledged Property or any part thereof, or as to the title of the Company
thereto, or as to the validity or adequacy of the security afforded thereby and
hereby, or as to the validity or sufficiency of this Indenture or of any
Mortgage or of the Bonds issued hereunder. The Trustees, or either of them,
shall be under no responsibility or duty with respect to the disposition of any
Bonds authenticated and delivered hereunder or the application or use of the
proceeds thereof or the application or use of any moneys paid to the Company
under any of the provisions hereof.
SECTION 16.04. Either of the Trustees, the paying agent, the Bond
Registrar or any Bond Co-Registrar or other agent of the Company or of the
Trustees in their, its or his individual or any other capacity, may become the
owner or pledgee of Bonds and, subject to Sections 16.09 and 16.10, if
operative, may otherwise deal with the Company with the same rights it or he
would have if it or he were not a Trustee, paying agent, Bond Registrar, Bond
Co-Registrar or other agent of the Company or of the Trustees.
SECTION 16.05. No Trustee hereunder shall be personally liable by reason
of any act or omission of any other Trustee hereunder.
Any notice, request or other writing, by or on behalf of the Holders of
the Bonds delivered to the Corporate Trustee, or its successor in the trust
hereunder, shall be deemed to have been delivered to all of the then Trustees
as effectually as if delivered to each of them.
SECTION 16.06. To the extent permitted by Section 16.02 hereof:
(A) The Trustees and each of them may rely and shall be protected in
acting upon any resolution, certificate, opinion, notice, request,
consent, order, appraisal, report, Bond or other paper or document
believed by them, it or him to be genuine and to have been signed or
presented by the proper party or parties;
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(B) The Trustees and each of them may consult with counsel, who may
be of counsel to the Company, 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 or suffered by them, it or him
hereunder in good faith and in reliance thereon;
(C) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Application or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Certified Resolution;
(D) Whenever in the administration of this Indenture the Trustees, or
either of them, shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder,
the Trustees and each of them (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith, rely upon an
Officers' Certificate;
(E) The Trustees, or either of them, shall be under no obligation to
exercise any of the rights or powers vested in them, it or him 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 Trustees, or
either of them, as the case may be, reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred, as
the case may be, in compliance with such request or direction;
(F) The Trustees, or either of them, shall not be bound to make any
investigation into the facts or matters stated in any such document set
forth in Section 16.06(A), but the Trustees, or either of them, in their
exercise of discretion, may make such further inquiry or investigation
into such facts or matters as may seem necessary, and, if the Trustees, or
either of them, shall determine to make such further inquiry or
investigation, the Trustees, or either of them, shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney;
(G) The Trustees, or either of them, 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 Trustees, or either of them, shall not
be responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care hereunder; and
(H) The Trustees shall not be required to give any bond or surety in
respect of the execution of the said trusts and powers or otherwise in
respect of the premises.
SECTION 16.07. Subject to the provisions of Section 20.02 and 20.03
hereof, all moneys received by the Trustees, or either of them, hereunder or in
respect of the Bonds shall, until used or applied as herein provided, be held
in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law.
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Any interest allowed on or income or other return arising from any such
moneys shall be paid from time to time to the Company upon Company Order in
accordance with the provisions hereof; provided, however, that no such
interest, income or return shall be paid to the Company during any period
during which an Event of Default has occurred and is continuing.
SECTION 16.08. The Company covenants and agrees to pay to the Trustees
from time to time, and the Trustees shall be entitled to receive, reasonable
compensation for all services rendered by them in the execution of the trusts
hereby created and in the exercise and performance of all services rendered
hereunder, which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust, and except as
otherwise expressly provided herein, the Company will upon request of the
Trustees, or either of them, reimburse the Trustees, or either of them, for all
reasonable advances made or incurred by the Trustees, or either of them, in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of their, its or his agents and
counsel, except any such expense or disbursement as may be attributable to
negligence or bad faith). The Company also covenants to indemnify the Trustees
and each of them for, and to hold them and each of them harmless against, any
loss, liability or expense incurred without negligence or bad faith on the part
of the Trustees, or either of them, as the case may be, arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending against any claim or liability in connection
with the exercise or performance of any of the powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section 16.08, the Trustees and each of them shall have (in addition to
any other rights under this Indenture) a lien prior to the Bonds on the Trust
Estate, including all property and funds held or collected by the Trustees.
If, and to the extent that the Trustees or either of them and their, its
or his counsel and other agents do not receive compensation for services
rendered, reimbursements of their, its or his advances, expenses and
disbursements, or indemnity, as herein provided, as the result of allowances
made in any reorganization, bankruptcy, receivership, liquidation or other
proceeding or by any plan of reorganization or readjustment of obligations of
the Company, the Trustees, or either of them, shall be entitled, in priority to
the Holders of the Bonds, to receive any distributions of any securities,
dividends or other disbursements which would otherwise be made to the holders
of Bonds in any such proceeding or proceedings and the Corporate Trustee is
hereby constituted and appointed, irrevocably, the attorney in fact for the
holders of the Bonds and each of them to collect and receive, in their name,
place and xxxxx, such distributions, dividends or other disbursements, to
deduct therefrom the amounts due to the Trustees, or either of them, their, its
or his counsel and other agents on account of services rendered, advances,
expenses, and disbursements made or incurred, or indemnity, and to pay and
distribute the balance, pro rata, to the Holders of the Bonds. The Trustees, or
either of them, shall have a lien upon any securities or other considerations
to which the holders of Bonds may become entitled pursuant to any such plan of
reorganization or readjustment of obligations, or in any such proceeding or
proceedings; and
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the court or judge in any such proceeding or proceedings may determine the
terms and conditions under which any such lien shall exist and be enforced.
SECTION 16.09. (A) Subject to the provisions of subdivision (B) of this
Section 16.09, if the Trustees, or either of them, shall be or shall become a
creditor, directly or indirectly, secured or unsecured, of the Company within
four months prior to a default (as defined in subdivision (C)(1) of this
Section 16.09), or subsequent to such a default, then, unless and until such
default shall be cured, the Trustees, or either of them, as the case may be,
shall set apart and hold in a special account for the benefit of Trustees, or
either of them, as the case may be, individually, the holders of the Bonds, and
the holders of other indenture securities (as defined in subdivision (C)(2) of
this Section 16.09)
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest
effected after the beginning of such four months' period and valid as
against the Company and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
clause (2) of this subdivision (A) or from the exercise of any right of
set-off which such Trustee could have exercised if a petition in
bankruptcy had been filed by or against the Company upon the date of o
such default; and
(2) all property received by the Trustees, or either of them, in
respect of any claim as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning of
such four months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of the
Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustees
or either of them
(a) to retain for their, its or his own account (i) payments made on
account of any such claim by any person (other than the Company) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any such
claim by the Trustees, or either of them, to a third person, and (iii)
distributions made in cash, securities, or other property in respect of
claims filed against the Company in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law;
(b) to realize, for their, its or his own account, upon any property
held by them, it or him as security for any such claim, if such property
was so held prior to the beginning of such four months' period;
(c) to realize, for their, its or his own account, but only to the
extent of the claim hereinafter mentioned, upon any property held by them,
it or him as security for any such claim, if such claim was created after
the beginning of such four months' period and such property was received
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as security therefor simultaneously with the creation thereof, and if the
Trustees, or either of them, as the case may be, shall sustain the burden
of proving that at the time such property was so received the Trustees, or
either of them, as the case may be, had no reasonable cause to believe
that a default as defined in the last paragraph of this subdivision (A)
would occur within four months; or
(d) to receive payment on any claim referred to in clause (b) or
clause (c) above, against the release of any property held as security for
such claim as provided in clause (b) or clause (c) above, as the case may
be, to the extent of the fair value of such property.
For the purposes of clauses (b), (c) and (d) above, property substituted after
the beginning of such four months' period for property held as security at the
time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and, to the
extent that any claim referred to in any of such clauses is created in renewal
of or in substitution for or for the purpose of repaying or refunding any
pre-existing claim of a Trustee as such creditor, such claim shall have the
same status as such pre-existing claim.
If the Trustees or either of them shall be required to account, the funds
and property held in such special account and the proceeds thereof shall be
apportioned among the Trustees, or either of them, the Bondholders and the
holders of other indenture securities in such manner that the Trustees, or
either of them, the Bondholders, and the holders of other indenture securities
realize, as a result of payments from such special account and payments of
dividends on claims filed against the Company in bankruptcy or receivership or
in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, the same percentage of their respective claims, figured
before crediting to the claim of the Trustees, or either of them, anything on
account of the receipt by it from the Company of the funds and property in such
special account and before crediting to the respective claims of the Trustees,
or either of them, the Bondholders, and the holders of other indenture
securities dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, but after crediting thereon receipts on
account of the indebtedness represented by their respective claims from all
sources other than from such dividends and from the funds and property so held
in such special account. As used in this paragraph, with respect to any claim,
the term "dividends" shall include any distribution with respect to such claim,
in bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law, whether such distribution
is made in cash, securities or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceeding for reorganization
is pending shall have jurisdiction (i) to apportion among the Trustees, or
either of them, the Bondholders, and the holders of other indenture securities,
in accordance with the provisions of this paragraph, the funds and property
held in such special account and the proceeds thereof, or (ii) in lieu of such
apportionment, in whole or in part, to give to the provisions of this paragraph
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due consideration in determining the fairness of the distributions to be made
to the Trustees, or either of them, the Bondholders, and the holders of other
indenture securities, with respect to their respective claims, in which event
it shall not be necessary to liquidate or to appraise the value of any
securities or other property held in such special account or as security for
any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to
apply the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
four months' period shall be subject to the provisions of this subdivision (A)
as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such four months' period, it
shall be subject to the provisions of this subdivision (A) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such four months' period; and
(ii) such receipt of property or reduction of claim occurred within
four months after such resignation or removal.
(B) There shall be excluded from the operation of subdivision (A) of this
Section 16.09 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by such Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture for the purpose of preserving
the property subject to the Lien of this Indenture or of discharging tax
liens or other prior liens or encumbrances on the Trust Estate, if notice
of such advance and of the circumstances surrounding the making thereof is
given to the Bondholders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as hereinafter defined in
subdivision (C)(3) of this Section 16.09;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; or
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(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subdivision (C)(4) of this Section 16.09.
(C) As used in this Section 16.09:
(1) The term "default" means any failure to make payment in full of
the principal of or interest upon the Bonds or upon the other indenture
securities when and as such principal or interest becomes due and payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor (as defined in the Trust Indenture Act)
outstanding under any other indenture (aa) under which such Trustee is also
trustee, (bb) which contains provisions substantially similar to the
provisions of this Section 16.09, and (cc) under which a default exists at
the time of the apportionment of the funds and property held in said special
account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustees, or either of them, simultaneously with creation of
the creditor relationship with the Company arising from making, drawing,
negotiating or incurring of the draft, xxxx of exchange, acceptance or
obligation.
(5) The term "Company" means any obligor upon the Bonds.
SECTION 16.10. (A) If the Trustees, or either of them, has or shall acquire
any conflicting interest, as defined in this Section 16.10, the Trustees, or
either of them, as the case may be, shall within 90 days after ascertaining that
there is such conflicting interest, either eliminate such conflicting interest
or resign in the manner and with the effect hereinafter specified in this
Article 16.
(B) In the event that the Trustee shall fail to comply with the provisions
of the preceding subdivision (A) of this Section 16.10, the Trustee shall within
ten days after the expiration of such 90 day period transmit notice Of such
failure to the Bondholders, in the manner and to the extent provided in
subdivision (C) of Section 7.03 with respect to reports pursuant to subdivision
(A) of Section 7.03.
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(C) For the purposes of this Section, the Trustees, or either of them, as
the case may be, shall be deemed to have a conflicting interest if:
(l) the Trustees, or either of them, are, together individually, be
trustees under another indenture under which any other securities, or
certificates of interest or participation in any other securities, of the
Company, are outstanding unless such other indenture is a collateral trust
indenture under which the only collateral consists of Bonds issued under
this Indenture; provided, however, that there shall be excluded from the
operation of this clause (1) any indenture under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if the Company shall have sustained the burden of
proving, on application to the Securities and Exchange Commission and after
opportunity for hearing thereon, that trusteeship under this Indenture and
such other indenture is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustees, or either of them, from
acting as such under this Indenture or such other indenture or indentures;
(2) the Trustees, or either of them, or any of the directors or
executive officers of the Trustees, or either of them, as the case may be,
are an obliger upon the Bonds or an underwriter for the Company;
(3) the Trustees, or either of them, directly or indirectly control or
are directly or indirectly controlled by or are under direct or indirect
common control with the Company or an underwriter for the Company;
(4) the Trustees, or either of them, or any of the directors or
executive officers of the Trustees, or either of them, are a director,
officer, partner, employee, appointee or representative of the Company, or
of an underwriter (other than the Trustees, or either of them, themselves or
himself) for the Company who is currently engaged in the business of
underwriting, except that (a) one individual may be a director or an
executive officer, or both, of the Trustees, or either of them, and a
director or an executive officer, or both, of the Company, but may not be at
the same time an executive officer of both the Trustees, or either of them,
and the Company; (b) if and so long as the number of directors of any
Trustee in office is more than nine, one additional individual may be a
director or an executive officer, or both, of such Trustee and a director of
the Company; and (c) the Trustees, or either of them, may be designated by
the Company or by an underwriter for the Company to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent, escrow
agent or depositary or in any other similar capacity or, subject to the
provisions of paragraph (1) of this subdivision (C), to act as trustee,
whether under an indenture or otherwise;
(5) ten per centum (10%) or more of the voting securities of the
Trustees, or either of them, is beneficially owned either by the Company or
by any director, partner or executive officer thereof, or twenty per
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centum (20%) or more of such voting securities is beneficially owned,
collectively, by any two or more of such persons; or ten per centum (10%) or
more of the voting securities of the Trustees, or either of them, is
beneficially owned either by an underwriter for the Company or by any
director, partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustees, or either of them, are the beneficial owners of or
hold as collateral security for an obligation which is in default (as
hereinafter in this subdivision (c) of this Section 16.09 defined), (a) five
per centum (5%) or more of the voting securities or ten per centum (10%) or
more of any other class of security of the Company, not including the Bonds
issued under this Indenture and securities issued under any other indenture
under which the Trustees, or either of them, are also trustee, or (b) ten
per centum (10%) or more of any class of security of an underwriter for the
Company;
(7) The Trustees, or either of them, are the beneficial owners of, or
hold as collateral security for an obligation which is in default (as
hereinafter in this subdivision (c) of this Section 16.09 defined), five per
centum (5%) or more of the voting securities of any person who, to the
knowledge of the Trustees, or either of them, owns ten per centum (10%) or
more of the voting securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Company;
(8) the Trustees, or either of them, are the beneficial owners of or
hold as collateral security for an obligation which is in default (as
hereinafter in this subdivision (C) of this Section 16.10 defined), ten per
centum (10%) or more of any class of security of any person who, to the
knowledge of the Trustees, or either of them, owns fifty per centum (50%) or
more of the voting securities of the Company; or
(9) the Trustees, or either of them, owns on May 15 in any calendar year
in the capacity of executor, administrator, testamentary or inter vivos
trustee, guardian, committee or conservator, or in any other similar
capacity, an aggregate of twenty-five per centum (25%) or more of the voting
securities or of any class of security, of any person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under clause (6), (7) or (8) of this subdivision (C).
As to any such securities of which the Trustees, or either of them, acquired
ownership through becoming executor, administrator or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply for a period of two (2) years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed twenty-five per centum (25%) of such voting securities or
twenty-five per centum (25%) of any such class of security. Promptly after
May 15, in each calendar year, each of the Trustees shall make a check of
its or his holdings of such securities in any of the above-mentioned
capacities as of May 15. If the Company fails to make payment in full of
principal or interest upon the Bonds when and as the same becomes due and
payable, and such failure
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continues for 30 days thereafter, each of the Trustees shall make a prompt
check of its or his holdings of such securities in any of the
above-mentioned capacities as of the date of the expiration of such
thirty-day period and after such date, notwithstanding the foregoing
provisions of this clause (9), all such securities so held by the Trustees,
or either of them, with sole or joint control over such securities vested in
them, it or him, shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustees, or either of them,
for the purposes of clauses (6), (7) and (8) of this subdivision (C).
The specifications of percentages in clauses (5) to (9), inclusive, of this
subdivision (C) shall not be construed as indicating that the ownership of such
percentages of the securities of a person is or is not necessary or sufficient
to constitute direct or indirect control for the purposes of clause (3) or (7)
of this subdivision (C).
For the purposes of clauses (6), (7), (8) and (9) of this subdivision (C)
only, (a) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a person by one or more banks, trust companies or banking
firms or any certificate of interest or participation in any such note or
evidence of indebtedness, (b) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (c) the Trustees, or either of them, shall
not be deemed to be the owners or holders of (i) any security which they, it or
he holds as collateral security (as trustee or otherwise) for an obligation
which is not in default as above defined, or (ii) any security which they, it or
he holds as collateral security under this Indenture, irrespective of any
Default hereunder, or (iii) any security which they, it or he holds as agent for
collection, or as custodian, escrow agent or depositary, or in any similar
representative capacity.
(D) The percentages of voting securities and other securities specified in
this Section 16.10 shall be calculated in accordance with the following
provisions:
(aa) A specified percentage of the voting securities of a Trustee, the
Company or any other person referred to in this Section 16.10 (each of whom
is referred to as a "person" in this subdivision (D)) means such amount of
the outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person.
(bb) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
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(cc) The term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security.
(dd) The term "outstanding" means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(1) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(2) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation evidenced
by such other class of securities is not in default as to principal or
interest or otherwise;
(3) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; or
(4) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise
the voting rights thereof.
(ee) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, however, that, in
the case of secured evidences of indebtedness, all of which are issued under
a single indenture, differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient to constitute such
series different classes; and provided, further, that, in the case of
unsecured evidences of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to constitute them
securities of different classes, whether or not they are issued under a
single indenture.
(E) For the purposes of this Section 16.10, unless otherwise provided:
(1) The term "underwriter" when used with reference to the Company
means every person, who, within three years prior to the time as of which the
determination is made, has purchased from the Company with a view to, or has
offered or has sold for the Company in connection with, the distribution of any
security of the Company outstanding at such time, or has participated or has had
a direct or indirect participation in any such undertaking, or has participated
or has had a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest was limited
to a commission from an
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underwriter or dealer not in excess of the usual and customary distributors'
or sellers' commission.
(2) The term "director" means any director of a corporation, or any
individual performing similar functions with respect to any organization
whether incorporated or unincorporated.
(3) The term "person" means an individual, a corporation, a partnership,
an association, a joint-stock company, a trust, an unincorporated
organization, or a government or political subdivision thereof. As used in
this clause, the term "trust" shall include only a trust where the interest
or interests of the beneficiary or beneficiaries are evidenced by a
security.
(4) The term "voting security" means any security presently entitling
the owner or holder thereof to vote in the direction or management of the
affairs of a person, or any security issued under or pursuant to any trust,
agreement or arrangement whereby a trustee or trustees or agent or agents
for the owner or holder of such security are presently entitled to vote in
the direction or management of the affairs of a person.
(5) The term "Company" means any obligor upon the Bonds.
(6) The term "executive officer" means the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(F) If a separate trustee or co-trustee is appointed pursuant to Section
16.14, the provisions of this Section 16.10 which have been made specifically
applicable to the Trustees shall also apply to any separate trustee or
co-trustee.
SECTION 16.11. (A) No resignation or removal of the Trustees, or either of
them, and no appointment of a successor Trustee or Trustees pursuant to this
Article 16 shall become effective until the acceptance of appointment by the
successor Trustee under this Section 16.11 and Section 16.12.
(B) The Trustees, or either of them, may resign at any time by giving
written notice thereof to the Company. If an instrument of acceptance by a
successor Trustee or Trustees shall not have been delivered to the Trustees, or
either of them, within 30 days after the giving of such notice of resignation,
the resigning Trustee or Trustees may petition any court of competent
jurisdiction for the appointment of a successor Trustee or Trustees.
(C) The Trustees, or either of them, may be removed at any time by Act of
the holders of a majority in principal amount of the Outstanding Bonds,
delivered to the Trustees, or either of them, and to the Company.
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(D) If at any time:
(1) the Trustees, or either of them, shall fail to comply with Section
16.10 after written request therefor by the Company or by any Bondholder who
has been a bona fide holder of a Bond for at least six months, or
(2) the Trustees, or either of them, shall cease to be eligible under
Section 16.01 and shall fail to resign after written request therefor by the
Company or by any such Bondholder, or
(3) the Trustees, or either of them, shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Trustees, or
either of them, or of their, its or his property shall be appointed or any
public officer shall take charge or control of the Trustees, or either of
them or of their, its or his property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Certified Resolution may remove the
Trustees, or either of them, or (ii) subject to Section 12.23, any Bondholder
who has been a bona fide holder of a Bond 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 Trustees, or either of them, and the
appointment of a successor Trustee or Trustees.
(E) If the Trustees, or either of them, shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of any Trustee
for any cause, the Company, by a Certified Resolution, shall promptly appoint a
successor Trustee or Trustees. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
or Trustees shall be appointed by Act of the holders of a majority in principal
amount of the Outstanding Bonds delivered to the Company and the retiring
Trustee or Trustees, the successor Trustee or Trustees so appointed shall,
forthwith upon its or their acceptance of such appointment, become the successor
Trustee or Trustees and supersede the successor Trustee or Trustees appointed by
the Company. If no successor Trustee or Trustees shall have been so appointed by
the Company or the Bondholders and accepted appointment in the manner
hereinafter provided, any Bondholder who has been a bona fide holder of a Bond
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 or Trustees.
Notwithstanding the foregoing, in the event of the Individual Trustee's
death, absence, inability or refusal to act at any time when action under the
terms of this Indenture may be required or contemplated, or for any other reason
at the option of the Corporate Trustee, the Corporate Trustee is hereby
authorized to name and appoint one or more successor Individual Trustee(s) to
execute the trust granted under this Indenture, and specifically is authorized
to appoint a separate successor Individual Trustee in each jurisdiction in which
Mortgaged and Pledged Property is located, and the title herein conveyed to the
above named Individual Trustee shall be vested in said successor(s) without the
necessity for any further conveyance.
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(F) The Company shall give notice of each resignation and each removal Of a
Trustee and each appointment of a successor Trustee by mailing written notice of
such event by first-class mail, postage prepaid, to the holders of Bonds in the
manner and to the extent provided in subdivision (C) of Section 7.03 with
respect to reports pursuant to subdivision (A) of Section 7.03. Each notice
shall include the name of the successor Trustee or Trustees and address Of the
main office of the successor Corporate Trustee.
SECTION 16.12. Every successor Trustee or Trustees appointed hereunder shall
execute, acknowledge and deliver to the Company and to the retiring Trustee or
Trustees an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee or Trustees shall become effective and such
successor Trustee or Trustees, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Company or the respective successor
Trustee, the respective retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such respective successor
Trustee all the rights, powers and trusts of the retiring respective Trustee,
and shall duly assign, transfer and deliver to such respective successor Trustee
all property and money held by such respective retiring Trustee hereunder,
subject nevertheless to its lien, if any, provided for in Section 16.08. Upon
request of any such respective 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 16 to the extent operative.
Any Trustee which has resigned or been removed shall nevertheless retain the
lien afforded to it or him by Section 16.08 hereof upon the Trust Estate,
including all property or funds held or collected by such Trustee, as such, to
secure the amounts due to such Trustee as compensation, reimbursement, expenses
and indemnity, and shall retain the rights afforded to it by said Section 16.08
hereof.
SECTION 16.13. (A) Except as herein expressly provided to the contrary, any
notice, request, or other writing by or on behalf of the Company delivered
solely to the Corporate Trustee shall be deemed to have been delivered to both
of the Trustees hereunder as effectually as if delivered to each of them.
(B) Notwithstanding anything herein contained to the contrary, all cash
collected by, or payable to, the Trustees or either of them pursuant to this
Indenture shall be paid to and deposited with, and all stocks, bonds and other
obligations or securities shall be held by, the Corporate Trustee, except as
otherwise required by law. Any moneys at any time coming into the hands of the
Individual Trustee pursuant to this Indenture shall be at once paid over to the
Corporate Trustee.
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Whenever any moneys, bonds, shares of stock or other obligations are, under
any provisions of this Indenture, paid or delivered to or deposited with the
Corporate Trustee, title to the same shall be deemed to be vested in both
Trustees hereunder, and the same shall be deemed for all purposes hereunder to
be part of the security for the Bonds issued hereunder, but nothing contained in
this Section 16.13 shall be deemed to affect or impair any power or right
conferred by any provision of this Indenture upon the Corporate Trustee to
apply, disburse or otherwise act or deal with respect to any moneys, bonds,
shares of stock or other obligations received or held by it as aforesaid.
(C) Except as may otherwise expressly be provided herein, any request in
writing by the Corporate Trustee to the Individual Trustee to take or refrain
from taking any action shall be a sufficient warrant (subject to the provisions
of Section 16.02 hereof) for the Individual Trustee to take, or refrain from
taking, any such action as may be so requested.
(D) The Individual Trustee has been joined as trustee in order to comply
with any legal requirements respecting trustees under indentures, mortgages,
deeds of trust and other security instruments with respect to property in the
jurisdictions, or some of them, in which the Mortgaged and Pledged Property or
part thereof are or may be situate, and shall as such trustee possess such
powers, and such powers only, as may be necessary to comply with such
requirements. If by reason of the repeal of such requirements, or for any other
reason, it shall not be necessary, in the opinion of counsel, that there shall
be an Individual Trustee and the Company shall file with the Corporate Trustee
and also with the Individual Trustee, an Opinion of Counsel to that effect and a
written request for the removal of the Individual Trustee, the Individual
Trustee named herein, or any successor, shall forthwith cease to be a Trustee
hereunder, and all powers of the Individual Trustee shall forthwith terminate,
as shall his right, title or interest in and to the Trust Estate; and unless and
until there shall be appointed a new Trustee or successor to the Individual
Trustee, all the right, title and powers of the Individual Trustee shall devolve
upon the Corporate Trustee and its successors alone. Upon such removal, the
Corporate Trustee shall execute such instrument or instruments as may be
desirable to effect the same and such instrument or instruments shall
conclusively establish that such removal has been effected.
Any rights, powers, duties and obligations by any provisions of this
Indenture conferred or imposed upon the Trustees or any of them shall, in so far
as permitted by law, be conferred or imposed upon and exercised or performed by
the Corporate Trustee alone without reference to the Individual Trustee, and the
Individual Trustee hereby irrevocably constitutes and appoints the Corporate
Trustee his true and lawful attorney in fact with full power and authority, in
so far as permitted by law, either in the name and on behalf of the Individual
Trustee or of the Trustees jointly, to exercise any and all rights or powers
conferred upon the Individual Trustee alone, or upon the Trustees jointly, by
any of the provisions of this Indenture, but subject to the duties imposed by
this Section 16.13 upon the Individual Trustee, hereby ratifying and confirming
all and singular the acts and things lawfully done by the Corporate Trustee by
virtue of this power of attorney, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed the
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Corporate Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, power, duties and obligations shall be
exercised and performed by the Individual Trustee alone, notwithstanding any
Other provision of this Indenture naming the Corporate Trustee or both Trustees
as the person or persons to act.
In case the Individual Trustee shall die, become unqualified or incapable of
acting, resign or be removed, all rights of the Individual Trustee, and all
right, title and interest of the Individual Trustee in and to the Mortgaged and
Pledged Property, shall, so far as permitted by law, vest in and be exercised by
the Corporate Trustee, unless and until a successor Individual Trustee shall be
appointed in the manner provided in this Article 16.
SECTION 16.14. If at any time or times, for the purpose of conforming to any
legal requirements, restrictions or conditions in the state or jurisdiction in
which the Mortgaged and Pledged Property then or to become subject to the Lien
of this Indenture is located, or if the Corporate Trustee shall be advised by
counsel satisfactory to it, that it is necessary or prudent in the interest of
the Bondholders, or if the holders of a majority in principal amount of the then
Outstanding Bonds shall in writing reasonably request the Corporate Trustee and
the Company, the Company and the Trustees or the Corporate Trustee shall have
power to appoint, and, upon the request of the Trustees or the Corporate
Trustee, the Company shall for such purpose join with the Trustees or the
Corporate Trustee in the execution, delivery and performance of, all instruments
and agreements necessary or proper to appoint another corporation having the
qualifications specified in Section 16.01 or one or more persons approved by the
Trustees or the Corporate Trustee, either to act as separate trustee or trustees
jointly with the Trustees or Corporate Trustee, with respect to all or any of
the property subject to the Lien of this Indenture, or to act hereunder as
co-trustee or co-trustees with respect to any such property, with such power and
authority and for such term as may be necessary or prudent for such purpose and
as shall be specified in the instrument of appointment. In the event that the
Company shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, or in case an Event of Default shall have
occurred and be continuing, the Trustees or the Corporate Trustee alone may act
under the foregoing provisions of this Section 16.14 without the concurrence of
the Company; and the Company hereby fully empowers the Trustees, and each of
them, so to act and appoints the Trustees, and each of them, its agent and
attorney to act for it under the foregoing provision of this Section 16.14, in
either of such contingencies.
The Company, the Corporate Trustee and the Individual Trustee, at any time
by an instrument executed by them jointly, may accept the resignation or remove
any separate trustee or co-trustee appointed under this Section 16.14 or
otherwise, and, upon the request of the Corporate Trustee, the Company shall,
for such purpose, join with the Corporate Trustee and the Individual Trustee in
the execution, delivery and performance of all instruments and agreements
necessary or proper to make effective such resignation or removal. In the event
that the Company shall not have joined in such action within 15 days after the
receipt by it of a request so to do, the Corporate Trustee and the Individual
Trustee may act under the foregoing provision of this Section 16.14 without the
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concurrence of the Company; and the Company hereby fully empowers the Trustees,
and each of them, so to act and appoints the Trustees, and each of them, its
agent and attorney to act for it under the foregoing provision of this Section
16.14, in either of such contingencies. A successor to a separate trustee or
co-trustee so resigned or removed may be appointed in the manner provided in
this Article 16.
The rights, powers, duties and obligations conferred or imposed upon
Trustees hereunder shall be conferred or imposed upon and exercised or performed
by the Corporate Trustee, alone or jointly with such separate trustee or
separate trustees or co-trustee or co-trustees, as may be provided in the
supplemental indenture appointing such separate trustee or separate trustees or
co-trustee or co-trustees, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the
corporate Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations shall be
exercised and performed by such separate trustee or separate trustees or
co-trustee or co-trustees.
SECTION 16.15. Any corporation into which the Corporate Trustee may be
merged or with which it may be consolidated or any corporation resulting from
any merger, conversion, or consolidation to which the Corporate Trustee shall be
a party, or any corporation succeeding to all or substantially all the corporate
trust business of the Corporate Trustee shall be the successor of the Corporate
Trustee hereunder provided such corporation shall be otherwise qualified and
eligible under this Article 16, to the extent operative, without the execution
or filing of any paper or the performance of any further act on the part of any
other parties hereto, anything herein to the contrary notwithstanding. In case
any of the Bonds shall have been authenticated, but not delivered, by the
Corporate Trustee then in office, any such successor to the Corporate Trustee by
merger, conversion or consolidation may adopt such authentication and deliver
the said Bonds so authenticated with the same effect as if such successor
Corporate Trustee had itself authenticated such Bonds.
SECTION 16.16. As long as any of the Bonds remain Outstanding, upon a
Company Order there shall be an authenticating agent appointed by the Corporate
Trustee for such period as the Company shall elect, to act on behalf of the
Corporate Trustee and subject to its direction in connection with the
authentication of the Bonds as set forth in this Indenture. Such authenticating
agent shall at all times be a corporation organized and doing business under the
laws of the United States or any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
S100,000,000 subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section 16.16 the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published.
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Whenever reference is made in this Indenture to the authentication and
delivery of Bonds by the Corporate Trustee or the Corporate Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Corporate Trustee by an
authenticating agent and a certificate of authentication executed on behalf of
the corporate Trustee by an authenticating agent.
Any corporation in which any 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 any authenticating agent shall be a
party, or any corporation succeeding to the corporate agency business of any
authenticating agent, shall continue to be the authenticating agent without the
execution or filing of any paper or any further act on the part of the Corporate
Trustee or the authenticating agent.
Any authenticating agent may at any time resign by giving written notice of
resignation to the Corporate Trustee and to the Company. The Corporate Trustee
may at any time terminate the agency of any authenticating agent by giving
written notice of termination 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 any authenticating agent shall cease to be eligible in
accordance with the provisions of this Section 16.16, the Corporate Trustee
promptly shall appoint a successor authenticating agent, shall give written
notice of such appointment to the Company and shall mail notice of such
appointment to all holders of Bonds as the names and addresses of such holders
appear on the Bond Register. Any successor authenticating agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers,
duties and responsibilities of its predecessor hereunder. No successor
authenticating agent shall be appointed unless eligible under the provisions of
this Section 16.16.
The Corporate Trustee agrees to pay to the authenticating agent from time to
time reasonable compensation for its services, and the Corporate Trustee shall
be entitled to be reimbursed for such payments from the Company subject to the
provisions of Section 16.08. The provisions of Section 13.01, 16.03 and 16.04
shall be applicable to any authenticating agent.
ARTICLE 17.
DISCHARGE OF MORTGAGES.
SECTION 17.01. This Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Bonds herein
expressly provided for and rights to receive payments of interest thereon), and
the Trustees, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
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(A) all Bonds theretofore authenticated and delivered other than
(i) Bonds which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.08, and (ii) Bonds 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
20.03 have been delivered to the Corporate Trustee for cancellation;
or
(B) all such Bonds not theretofore delivered to the Corporate
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Corporate Trustee for the giving
of notice of redemption by the Corporate Trustee in the name, and
at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Corporate Trustee, as trust funds in
trust for the purpose, an amount sufficient to pay and discharge the
entire indebtedness on such Bonds not theretofore delivered to the
Corporate Trustee for cancellation, for principal, and premium, if any,
and interest to the date of such deposit (in the case of Bonds which
have become due and payable), or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustees 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 Trustees under Section 16.08 shall survive.
SECTION 17.02. All money deposited with the Corporate Trustee pursuant to
Section 17.01 shall be held in trust and applied by it, in accordance with the
provisions of the Bonds and this Indenture, to the payment, either directly or
through any paying agent (including the Company acting as its own paying agent),
as the Corporate Trustee may determine, to the persons entitled thereto, of the
principal, and premium, if any, and interest for whose payment such money has
been deposited with the Corporate trustee; but such money need not be segregated
from other funds except to the extent required by law. The Corporate Trustee
shall give notice in the name and at the expense of the Company of the immediate
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availability of the money deposited with the Corporate Trustee pursuant to
Section 17.01 to the persons entitled to such money.
ARTICLE 18.
MEETING OF BONDHOLDERS.
SECTION 18.01. A meeting of the Bondholders may be called at any time
and from time to time pursuant to the provisions of this Article 18 for any of
the following purposes:
(A) To give any notice to the Company or to the Trustees, or to
give any directions to the Trustees, or to consent to the waiving of
any Event of Default hereunder and its consequences, or to take any
other action authorized to be taken by the Bondholders pursuant to any
of the provisions of Article 12;
(B) To remove either Trustee and appoint a successor trustee
pursuant to any of the provisions of Article 16;
(C) To consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Article 19; of
(D) To take any other action authorized to be taken by or on
behalf of Bondholders of any specified aggregate principal amount of
the Bonds under any other provisions of this Indenture, or authorized
or permitted by law.
SECTION 18.02. Meetings of Bondholders may be held at such place or
places and at such time or times in any place of payment as the Corporate
Trustee or, in case of its failure to act, the Company or the Bondholders
calling the meeting, shall from time to time determine.
SECTION 18.03. The Corporate Trustee may at any time call a meeting of
the Bondholders to take any action specified in Section 18.01, to be held at
such time and at such place designated in Section 18.02 as the Corporate Trustee
shall determine. Notice of every meeting of the Bondholders, setting forth the
time and place of such meeting and in general terms the action proposed to be
taken at such meeting, and specifying each series of Bonds which would be
affected by the proposed action, shall be mailed by the Corporate Trustee at the
expense of the Company, first class postage prepaid, to the Bondholders at their
last addresses as they shall appear upon the Bond Register, not less than 20
nor more than 120 days prior to the date fixed for the meeting. Any defect in
said notice shall not, however, in any way impair or affect the validity of any
such meeting.
The Corporate Trustee may in its discretion determine, subject to the
meaning of the term "affected" as set forth in Section 19.02, whether or not
Bonds of any particular series would be affected by action proposed to be taken
at a meeting and any such determination shall be conclusive upon the holders of
Bonds of such series and all other series. Subject to the provisions of Section
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16.02, the Corporate Trustee shall not be liable for any such determination made
in good faith.
Any meeting of the Bondholders shall be valid without notice if
Bondholders, holding all Bonds then Outstanding, which would be affected by the
action proposed to be undertaken, are present in person or by proxy or have
waived notice before or after the meeting by Bondholders, and if the Company and
the Trustees are either present by duly authorized representatives or have,
before or after the meeting, waived notice.
In case at any time the Company, pursuant to a Certified Resolution, or
Bondholders holding at least 10% in aggregate principal amount of the Bonds then
Outstanding, which would be affected by the action proposed to be undertaken,
shall have requested the Corporate Trustee to call a meeting of the Bondholders
to take any action authorized by Section 18.01, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Corporate Trustee shall not have mailed the notice of such meeting within 20
days after receipt of such request, then the Company or Bondholders holding the
amount above specified may determine the time and the place for such meeting and
may call such meeting for such purpose by giving notice thereof in the manner
provided in this Section 18.03.
SECTION 18.04. Only Bondholders holding Bonds, which would be affected
by the action proposed to be undertaken, and persons appointed by an instrument
in writing as proxy for such a Bondholder by such a Bondholder are entitled to
notice of and to vote at any meeting of the Bondholders. The only persons who
shall be entitled to be present or to speak at any meeting of the Bondholders
shall be the persons entitled to vote at such meeting and their counsel, any
representatives of the Trustees and their counsel, and any representatives of
the Company and its counsel.
SECTION 18.05. Notwithstanding any other provisions of this Indenture,
the Corporate Trustee may make such reasonable regulations as it may deem
advisable for any meeting of the Bondholders, in regard to proof of the holding
of Bonds and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate.
Such regulations (A) may provide for the closing of the Bond Register
for such period as the Corporate Trustee may deem necessary or (B) may fix a
record and time for determining the record Bondholders of the Bonds entitled to
vote at such meeting. All Bondholders seeking to attend or vote at a meeting in
person or by proxy must, if required by any authorized representative of the
Corporate Trustee or the Company or by any other Bondholder, produce the Bonds
claimed to be owned or represented at such meeting, and every one seeking to
attend or vote shall, if required as aforesaid, produce such further proof of
Bond ownership or personal identity as shall be satisfactory to the authorized
representative of the Corporate Trustee, or if none be present then to the
inspectors of votes hereinafter provided for.
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The Corporate Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by the Bondholders as provided in Section 18.03, in which case
the Company or the Bondholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary Of the meeting may be elected by vote of Bondholders holding a
majority in principal amount of the Bonds represented at the meeting and
entitled to vote.
At any meeting each Bondholder or proxy shall be entitled to one vote
for each $1,000 principal amount of Bonds then Outstanding owned by such
Bondholder or represented by such proxy; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Bonds challenged as not
Outstanding and ruled by the temporary or permanent chairman of the meeting to
be not Outstanding. The temporary or permanent chairman of the meeting shall
have no right to vote other than by virtue of Bonds held by him or instruments
in writing as aforesaid duly designating him as the person to vote on behalf of
other Bondholders.
At any meeting of Bondholders, the presence of persons holding or
representing Bonds in an aggregate principal amount sufficient under the
appropriate provision of this Indenture to take action upon the business for the
transaction of which such meeting was called shall constitute a quorum. Any
meeting of Holders duly called pursuant to Section 18.03 may be adjourned from
time to time by vote of the Holders (or proxies for the Holders) of a majority
in aggregate principal amount of the Bonds represented at the meeting and
entitled to vote, whether or not a quorum shall be present; and the meeting may
be held as so adjourned without further notice.
SECTION 18.06. The vote upon any resolution submitted to any meeting of
the Bondholders shall be by written ballots on which shall be subscribed the
signatures of the Bondholders or of their representatives by proxy and the
principal amount of the Bonds voted by the ballot. The temporary or permanent
chairman of the meeting shall appoint two inspectors of votes, who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record at least in duplicate of
the proceedings of each meeting of the Bondholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 18.03. The record shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one copy
thereof shall be delivered to the Company and another to the Corporate Trustee
to be preserved by the Corporate Trustee, the latter to have attached thereto
the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
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SECTION 18.07. Whenever in this Indenture it is provided that the
Holders Of a specified percentage in aggregate principal amount of the Bonds of
any series may take any action (including the making of any demand or request,
the giving of any notice, consent, or waiver or the taking of any other action)
the fact that at the time of taking any such action the Holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by Holders in person or
by agent or proxy appointed in writing, or (b) by the record of the Holders of
Bonds voting in favor thereof at any meeting of Holders duly called and held in
accordance with the provisions of this Article 18, or (c) by a combination of
such instrument or instruments and any such record of such a meeting of Holders.
SECTION 18.08. Nothing in this Article 18 contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of the
Bondholders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Corporate Trustee or to the Bondholders under
any of the provisions of this Indenture or of the Bonds.
ARTICLE 19.
SUPPLEMENTAL INDENTURES
SECTION 19.01. Without the consent of the holders of any Bonds, the
Company, when authorized by a Certified Resolution of its Board of Directors,
and the Trustees, or either of them, may at any time and from time to time,
enter into an indenture or indentures supplemental hereto, in form satisfactory
to the Corporate Trustee, for one or more of the following purposes:
(A) To correct or amplify the description of any property at
any time subject to the Lien of this Indenture, or better to assure,
convey and confirm unto the Trustees, or either of them, any property
subject or required to be subjected to the Lien of this Indenture; or
to subject to the Lien of this Indenture additional property pursuant
to Section 5.03 hereof or to release any of the Mortgaged and Pledged
Properties pursuant to Sections 6.10, 10.02 or 10.03 hereof;
(B) To evidence the succession of another corporation or
limited partnership to the Company or an Operating Subsidiary or
successive successions, and the assumption by the successor limited
partnership or corporation of the covenants, agreements and obligations
of the Company or an Operating Subsidiary pursuant to Article 15
hereof;
(C) To add to the covenants of the Company such further
covenants for the protection of the Mortgaged and Pledged Property and
the Bondholders or to surrender any right or power herein conferred
upon the Company as the Board of Directors shall consider to be
necessary for the protection of the Bondholders, and to make the
occurrence and continuance of a default under any of such additional
covenants a Default permitting the enforcement of all or any of the
several remedies provided in this Indenture; provided, however, that in
respect of any such additional
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covenant, such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other Defaults) or may provide for an
immediate enforcement of said remedy or remedies upon such default or
may limit the remedies available to the Trustees, or either of them,
upon such default or may authorize the holders of not less than a
majority in aggregate principal amount of the Outstanding Bonds to
waive such default and prescribe limitations on such rights of waiver;
(D) To cure any ambiguity or to correct or supplement any
provision contained in this Indenture which may be inconsistent with
any other provision contained herein or in any supplemental indenture,
or to make such other provisions in regard to matters or questions
arising under this Indenture as shall not be inconsistent with the
provisions and purposes of this Indenture, provided any such action
shall not adversely affect the interest of the Bondholders;
(E) To evidence the assumption by a lessee corporation of the
covenants, agreements and obligations of the Company or any successor
corporation or limited partnership upon the Bonds and under this
Indenture;
(F) To modify or eliminate any of the terms of this Indenture;
provided, however, that no such modification or elimination shall be or
become operative or effective which shall in any manner impair any of
the rights of the Bondholders or of the Trustees, while any Bonds of
any series created prior to the execution of such supplemental
indenture shall remain Outstanding;
(G) To add to the conditions, limitations and restrictions on
the authorized amount, terms or purposes of issue, authentication and
delivery of Bonds, or any series of Bonds, as herein set forth, other
conditions, limitations and restrictions thereafter to be observed;
(H) To provide for the creation of any series of Bonds (other
than the 1989 Bonds);
(I) To permit the exchange of Bonds of one series for Bonds of
another series, or the exchange of Bonds of one denomination or kind
for Bonds of another denomination or kind of the same series; or
(J) To appoint any separate trustee or separate trustees or
co-trustee or co-trustees pursuant to Article 16.
Nothing contained in this Article 19 shall affect or limit the right or
obligation of the Company to execute and deliver to the Trustees any instrument
Of further assurance or other instrument which elsewhere in this Indenture it is
provided shall be delivered to the Trustees.
The Trustees, or either of them, are hereby authorized and directed to
join with the Company in the execution of any such supplemental
indenture, to
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make any further appropriate agreements and stipulations which may be herein
contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustees, or either of them, shall not be obligated to enter
into any such supplemental indenture which, in their, its or his opinion, does
not afford adequate protection to the Trustees, or either of them, or adversely
affects the Trustees' own rights, duties or immunities under this Indenture of
otherwise or adversely affects the interests of the Bondholders.
SECTION 19 02. With the consent (evidenced as provided in Article 18)
of the holders of not less than 66 2/3% in aggregate principal amount of the
Bonds then Outstanding (or if less than all series of Bonds then Outstanding are
affected by such supplemental indenture, not less than 66 2/3% of the Bonds of
each series then Outstanding which are affected by such supplemental indenture),
by Act of said Holders delivered to the Company and the Trustees, the Company
(when authorized by a Certified Resolution) and the Trustees at any time and
from time to time, by entering into an indenture or indentures supplemental
hereto, may modify, alter, add to or eliminate in any manner (with the approval
of any governmental agency if required by law) any provisions of this Indenture
or the rights of the Bondholders or the rights and obligations of the Company;
provided, however, that no such supplemental indenture shall, without the
consent of the holder of each Outstanding Bond affected thereby:
(i) change the Stated Maturity of the principal of, or any
installment of interest on, any Bond, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon
redemption thereof, or the coin or currency in which, any Bond or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date), or
(ii) permit the creation of any mortgage or other lien
ranking prior to or on a parity with the Lien of this Indenture as to
any Mortgaged and Pledged Property, except as otherwise expressly
provided by this Indenture, or impair the Lien of this Indenture as to
any Mortgaged and Pledged Property, or
(iii) deprive the holder of any Bond then Outstanding of the
Lien of this Indenture on the Trust Estate, or
(iv) reduce the percentage(s) of the aggregate principal
amount of Outstanding Bonds, or any or all series thereof, the consent
of the holders of which 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
(v) modify any of the provisions of this Section 19.02 or
Section 12.27, 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 Bond affected thereby.
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Bonds or any series thereof shall be deemed to be "affected" by a
supplemental indenture, if such supplemental indenture adversely affects or
diminishes the rights of Holders thereof against the Company or an Operating
Subsidiary or against the property of the Company or an Operating Subsidiary.
The Trustees may in the exercise of discretion, subject to Section 16.02,
determine whether or not any Bonds would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Holders of all
Bonds, whether theretofore or thereafter authenticated and delivered hereunder.
It shall not be necessary for any Act of Bondholders 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.
Any supplemental indenture authorized by the provisions of this Section
19.02 shall be executed by the Company and the Trustees, or either of them, in
accordance with the terms of Section 19.03.
Promptly after the execution by the Company and the Trustees of any
supplemental indenture pursuant to the provisions of Section 19.03, the Company
shall mail to the holders of the Bonds at their last addresses as they shall
appear on the Bond Register of the Company a notice setting forth in general
terms the substance of such supplemental indenture. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 19.03. Prior to the execution of any supplemental indenture,
the Corporate Trustee shall receive a Company Request, accompanied by a
Certified Resolution authorizing the execution of any supplemental indenture
pursuant to Section 19.01 or Section 19.02, and, if pursuant to Section 19.02,
evidence filed with the Corporate Trustee of the Act of Bondholders as
aforesaid.
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 Trustees shall be entitled to
receive, and subject to Section 16.02 shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and stating such other matters as
the Trustees may reasonably request. The Trustees may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustees, or either of their rights, duties or immunities under this Indenture
or otherwise.
SECTION 19.04. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article 19, this Indenture shall be, and
shall be deemed to be, modified and amended in accordance therewith and the
respective rights, limitations, duties and obligations under this Indenture of
the Company, the Trustees, and each of them, and the Bondholders, and each of
them, shall thereafter be determined, exercised and enforced hereunder, subject
in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be, and shall be deemed to
be, part of the terms and conditions of this Indenture for any and all purposes,
as if originally contained herein.
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SECTION 19.05. Bonds authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article 19 may,
and shall if required by the Corporate Trustee, bear a notation in form approved
by the Corporate Trustee, as to any matter provided for in such supplemental
indenture. If the Company and the Corporate Trustee shall so determine, new
Bonds modified so as to conform, in the opinion of the Corporate Trustee and the
Board of Directors of the Company, to any modification of this Indenture
contained in any such supplemental indenture, may be prepared by the Company,
authenticated by the Corporate Trustee and delivered without expense to the
holders of the Outstanding Bonds, upon surrender of such Bonds, the new Bonds so
issued to be in an aggregate principal amount equal to the aggregate principal
amount of those so surrendered.
SECTION 19.06. No supplemental indenture shall be entered into pursuant
to any authorization contained in this Indenture which shall not comply with the
provisions of the Trust Indenture Act of 1939 as then in effect.
ARTICLE 20.
MISCELLANEOUS
SECTION 20.01. Except as provided herein, nothing in this Indenture,
expressed or implied, is intended, or shall be construed, to confer upon, or to
give to, any person other than the parties hereto and the holders of the Bonds
outstanding hereunder any right, remedy, or claim under or by reason of this
Indenture or any covenant, condition, stipulation, promise or agreement hereof,
and all the covenants, conditions, stipulations, promises and agreements
contained in this Indenture by and on behalf of the Company shall be for the
sole and exclusive benefit of the parties hereto, and of the holders of the
Bonds Outstanding hereunder.
SECTION 20.02. Upon Application, and provided no Event of Default shall
have occurred and then be continuing, or if an Event of Default shall have
occurred and be continuing, in the sole discretion of the Corporate Trustee, any
moneys (excluding any moneys held for the payment of the principal of, premium,
if any, or interest on any of the Bonds) held by the Corporate Trustee under
this Indenture, including Deposited Cash and funds deposited pursuant to Section
17.01 (prior to the time such funds become due and payable provided that such
investments mature prior to the time that such moneys become due and payable)
shall be invested, in the manner specified in such Application, by the Corporate
Trustee in (i) marketable direct obligations of the United States of America or
obligations for which the faith of the United States is pledged to provide for
the payment of the interest and principal, (ii) readily marketable commercial
paper, rated "prime" by the the National Credit Office (or any similar
organization which rates commercial paper), of corporations (other than the
Company or any of its Subsidiaries or Affiliates) organized and existing under
the laws of the United States of America or any state thereof which have
substantial properties and assets and conduct substantial business in the United
States of America, (iii) bankers' acceptances or time certificates of deposit
issued by banks insured by the Federal Deposit Insurance Corporation Bank
Insurance Fund (including the Corporate Trustee) having capital, surplus and
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undivided profits aggregating at least $50,000,000 or time deposits with such
banks, or (iv) readily marketable investment grade securities rated one of the
four highest investment grades by Standard & Poor's or Xxxxx'x Investor
Services; provided, however, that prior to the making of any such investment,
the Corporate Trustee will obtain the written approval of the Company with
respect to the maturity of such investment. The Corporate Trustee shall not be
liable to the Company or the Bondholders for the results of any such
investments. Such obligations shall be held by the Corporate Trustee as part of
the Mortgaged and Pledged Property in lieu of the moneys invested therein
subject to the Company's right to liquidate such investments in such manner and
at such time or times as, in the exercise of the Company's discretion, it deems
to be just and advisable, provided no Event of Default shall have occurred and
be continuing. If an Event of Default shall have occurred and be continuing such
obligations shall be held by the Corporate Trustee subject to its right to
liquidate such investments in such manner and at such time or times as, in the
exercise of its discretion, it deems to be in the best interests of Bondholders.
The Corporate Trustee shall have the right and duty to receive all amounts paid
on account of any investment made by it as hereby contemplated, including all
interest payments. Unless an Event of Default shall have occurred or be
continuing, any net profit resulting from, or interest or income produced by,
such investment shall, when received by the Corporate Trustee, be promptly paid
by it to the Company.
The Company covenants that within 30 days of demand by the Corporate
Trustee, it will replace all moneys lost through any investment made and
liquidated as by this Section 20.02 contemplated, and will reimburse the
Corporate Trustee for all accrued interest, commissions and expenses paid or
incurred in connection with the acquisition or liquidation of any investment.
SECTION 20.03. Any moneys deposited with the Trustees or any paying
agent, or then held by the Company, in trust for the payment of the principal
of, and premium, if any, or interest on any Bond and remaining unclaimed for six
years after the date upon which the principal of and premium, if any, or
interest on such Bonds shall have become due and payable, shall be paid to the
Company upon Company Request, or, if then held by the Company, shall be
discharged from such trust; and the holder shall thereafter, as an unsecured
general creditor, be entitled to look only to the Company for payment thereof,
and all liability of the Trustees or any paying agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that, before being required to make any such payment
to the Company, the Trustees, or any paying agent, may, at the expense of the
Company, cause to be published once in a Daily Newspaper in such areas as the
Corporate Trustee, or any paying agent, as the case may be, may deem necessary a
notice that such moneys remain unclaimed and that, after a date named in said
notice, the balance of such moneys then unclaimed will be returned to the
Company.
SECTION 20.04. (A) Each certificate or opinion which is specifically
required by the provisions of this Indenture to be delivered to the Trustees, or
either of them, with respect to compliance with a condition or covenant herein
contained shall include (A) a statement that each person signing such
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certificate or opinion has read such covenant or condition; (B) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinions are
based; (C) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (D) a statement as to whether or not in the opinion of each
such person such condition or covenant has been complied with.
(B) Every request or Application by the Company for action by the
Trustees, or either of them, shall be accompanied by an Officers' Certificate
stating that all conditions precedent, if any, to such action, provided for in
this Indenture (including any covenants compliance with which constitutes a
condition precedent) have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all conditions precedent, if any, to such
action, provided for in this Indenture (including any covenants compliance with
which constitutes a condition precedent) have been complied with, except that in
the case of any such request or Application as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular request or Application, no additional certificate or opinion
need be furnished.
(C) 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.
(D) Any certificate or opinion of an officer of the Company or of any
engineer, appraiser, accountant or other expert may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, course, unless such officer or engineer or appraiser or accountant or other
expert knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
Of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
(E) Any Opinion of Counsel relating to the binding effect or
enforceability in accordance with its terms of this Indenture, any supplemental
indenture, any Bond, or any other instrument relating thereto may state that
such opinion is subject to and qualified in all respects by (i) the effect of
applicable bankruptcy, insolvency, reorganization, moratorium and other laws
affecting creditors' rights and remedies generally, (ii) the discretion of the
courts in applying equitable principles and remedies (regardless of whether such
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enforceability is considered in a proceeding in equity or at law or otherwise),
(iii) the effect of fraudulent conveyance provisions of the Federal Bankruptcy
Code and applicable state law, (iv) the requirements that in the exercise of its
rights, the Trustees and Bondholders not act in bad faith, and (v) no opinion
need be expressed with respect to the validity, binding effect or enforceability
of the following provisions: indemnification and contribution provisions, grants
of powers of attorney, the appointment of receivers or custodians, waiver of
notice, designations of commercial reasonableness, and waiver of rights of and
submissions to judicial proceedings.
Any Opinion of Counsel given as to title to property may be based, in
whole or in part, upon a title policy or certified abstract or certificate
issued or rendered by any reputable person, firm or corporation engaged in the
business of insuring or guaranteeing titles to property or of making or issuing
certified abstract (provided that in such case such Opinion of Counsel shall
state that the signer believes such other person giving such policy, abstract or
certificate is reputable and one upon whom he may properly rely.
(F) 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 20.05. Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Bondholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Bondholders 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 Trustees, 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
Bondholders 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 16.02) conclusive in
favor of the Trustees and the Company, if made in the manner provided in this
Section.
The fact and date of the execution by any person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
an officer of a corporation or a member of a partnership, on behalf of such
corporation or partnership, or by a fiduciary, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Corporate
Trustee deems sufficient.
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Any request, demand, authorization, direction, notice, consent, waiver
or other action by the holder of any Bond shall bind every future holder to the
same Bond and the holder of every Bond issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done or suffered to
be done by the Trustees or the Company in reliance thereon, whether or not
notation of such action is made upon such Bond.
SECTION 20.06. Subject to the provisions of Articles 15 and 16 hereof,
whenever in this Indenture any of the parties hereto is named of referred to,
such name or reference shall be deemed to include the successors or assigns of
such party, and all the covenants and agreements in this Indenture contained by
or on behalf of the Company or by or on behalf of the Trustees shall bind and
inure to the benefit of the respective successors and assigns of such parties
whether so expressed or not.
SECTION 20.07. If any provision of this Indenture limits, qualifies, or
conflicts with another provision of this Indenture required to be included
herein by any of the provisions of the Trust Indenture Act of 1939 such required
provision shall control. Provisions required by said Trust Indenture Act to be
included herein which are not included herein are hereby incorporated herein by
reference to said Trust Indenture Act.
SECTION 20.08. Notwithstanding any other provisions of this Indenture,
the Company may, at any time and from time to time, amend this Indenture so as
to limit and thereafter to reduce (but not below the amount of Bonds at the time
Outstanding hereunder) the aggregate principal amount of Bonds at any one time
Outstanding which may be secured hereby by executing and delivering to the
Corporate Trustee, and thereafter appropriately recording or causing to be
recorded in all places where this Indenture is recorded, a supplemental
indenture specifying the aggregate principal amount of Bonds at any one time
Outstanding which may thereafter be secured hereby. Unless and until this
Indenture shall have been so amended, the aggregate principal amount of Bonds at
any one time Outstanding which may be secured hereby shall not be limited,
except as stated in Section 4.03 hereof. Any such amendment of this Indenture
and the execution and delivery of any such supplemental indenture as provided in
this Section 20.08 may be authorized by a Certified Resolution and no other or
further authorization or consent shall be required.
SECTION 20.09. Any request, demand, authorization, direction, notice,
consent, waiver or Act of the Bondholders or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with:
(l) the Trustees, or either of them, by any Bondholder or by the
Company shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing to or with the
Corporate Trustee at its main office, or
(2) the Company by the Trustees, or either of them, or by any
Bondholders shall be sufficient for every purpose hereunder
(except as herein otherwise provided) if in writing and
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SECTION 20.13. The Company shall provide the Corporate Trustee with
Backup Withholding Forms prescribed by the Internal Revenue Service and shall
indemnify the Corporate Trustee for any penalties, expenses, costs and
liabilities assessed against the Corporate Trustee for using improper forms.
SECTION 20.14. The titles of the several Articles of this Indenture and
the table of contents shall not be deemed to be any part hereof.
SECTION 20.15. This Indenture is being executed in several
counterparts, each of which shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
SECTION 20.16. This Indenture and each Bond issued hereunder shall be
governed by the laws of the State of Tennessee as to all matters affecting the
duties, liabilities, privileges, rights and obligations of the Bondholders, the
Company and the Trustees and any agents of the foregoing, including but not
limited to, matters of validity, construction, effect and performance; provided
that the creation and the rank of the Lien of this Indenture and the foreclosure
thereof shall be governed by the law of the jurisdiction in which the property
in question is located at the relevant time or which otherwise provides for such
creation, rank and foreclosure.
IN WITNESS WHEREOF, NATIONAL HEALTHCORP L.P. has caused its name to be
hereunto affixed, and this instrument to be signed and attested by NHC, INC.,
its Managing General Partner for and in its behalf; and BOATMEN'S TRUST COMPANY,
in token of its acceptance of the trust hereby created, has caused its corporate
name to be hereunto affixed, and this instrument to be signed and sealed by one
of its Vice Presidents and its corporate seal to be attested by one of its
Assistant Secretaries, and H.E. BRADFORD, has for all like purposes hereunto set
his hand and affixed his seal, all in _____________, ____________, on the date
of their acknowledgments annexed hereto, but effective as of the 15th day of
October, 1989, which latter date shall be deemed to be the date hereof.
NATIONAL HEALTHCORP L.P., a Delaware
limited partnership
By: NHC, Inc., its Managing
General Partner
By:
-----------------------------------
Title:
-------------------------------
ATTEST:
-----------------------------
Secretary
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BOATMEN'S TRUST COMPANY
By:
-----------------------------------
-----------------------------------
[CORPORATE SEAL]
ATTEST:
-----------------------------
Secretary
-----------------------------------
H.E. BRADFORD
-----------------------------
Witness
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STATE OF COUNTY OF ____________________)
COUNTY OF _____________________________)
Before me, the undersigned, a Notary Public of the State and County
aforesaid, personally appeared __________________ and ________________, with
whom I am personally acquainted, and who upon oath acknowledged themselves to
be President and Secretary, respectively, of NHC, Inc., the Managing General
Partner of NATIONAL HEALTHCORP L.P., a Delaware limited partnership, and they
as such officers, being authorized so to do, executed the foregoing instrument
for the purpose therein contained, by signing the name of the corporation on
behalf of the limited partnership by themselves as such officers.
Witness my hand and seal, at office in __________, Tennessee, this
____ day of ___________ , 1989.
Commission Expires:
_______________Notary Public
(SEAL)
STATE OF __________________)
COUNTY OF ________________ )
I, the undersigned, a Notary Public in and for the State and County
aforesaid, do hereby certify that _______________ and _______________, whose
names as President and Secretary of NHC, Inc., the Managing General Partner of
NATIONAL HEALTHCORP L.P., a Delaware limited partnership, are signed to the
foregoing indenture and who are known to me and known to be such officers,
acknowledged before me on this day, under oath, that, being informed of the
contents of the said Indenture they, as such officers, with full authority,
executed the same voluntarily for and as the act of NHC, Inc. on behalf of
NATIONAL HEALTHCORP L.P.
Given under my hand and seal of office this ____ day of ________, 1989.
Commission Expires:
_____________Notary Public
(SEAL)
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