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EXHIBIT (4) - 5
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of ______________, 1997 (this "Agreement"),
among MedPartners, Inc., a Delaware corporation (the "Company"),
_______________, a ________________ corporation, not individually but solely as
collateral agent (in such capacity, together with its successors in such
capacity, the "Collateral Agent"), and ___________________, not individually but
solely as purchase contract agent and as attorney-in-fact of the holders from
time to time of the Securities (as hereinafter defined) (in such capacity,
together with its successors in such capacity, the "Purchase Contract Agent")
under the Purchase Contract Agreement (as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the Purchase
Contract Agreement, dated as of the date hereof (as modified and supplemented
and in effect from time to time, the "Purchase Contract Agreement"), pursuant to
which there will be issued ____% Threshold Appreciation Price Securities (the
"Securities").
Each Security consists of (a) one Purchase Contract (as hereinafter
defined) and (b) ____% United States Treasury Notes due July 31, 2000 ("Treasury
Notes") having a principal amount equal to $______ (the "Stated Amount") and
maturing on July 31, 2000 (the "Final Settlement Date"), subject to the
pledge of such Treasury Notes created hereby.
The Company has caused the Underwriters, on its behalf, to purchase the
Treasury Notes for the benefit of holders of the Securities, to be settled on
_______________, 1997 with the proceeds of the offering of the Securities [and
other funds to be provided by the Company].
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as defined in the Purchase Contract Agreement)
from time to time of the Securities have authorized the Purchase Contract Agent,
as attorney-in-fact of such Holders, among other things to execute and deliver
this Agreement on behalf of such Holders and to grant the pledge provided hereby
of the Treasury Notes constituting part of such Securities as provided herein
and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
SECTION 1. DEFINITIONS. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
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(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular; and
(2) the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision.
"Act" has the meaning specified in the Purchase Contract Agreement.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O - Book-Entry
Procedure of Title 31 of the Code of Federal Regulations (31 CFR (xx.xx.)
306.115 et seq.) and any other regulations of the United States Treasury
Department from time to time applicable to the transfer or pledge of book-entry
U.S. Treasury Securities.
"Bankruptcy Code" means Title 11 of the United States Code, or any
other law of the United States that from time to time provides a uniform system
of bankruptcy laws.
"Board Resolution" has the meaning specified in the Purchase Contract
Agreement.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange or banking institutions or trust companies
in the City of New York are authorized or obligated by law or executive order to
be closed.
"Collateral Agent" has the meaning specified in the first paragraph of
this instrument.
"Collateral Account" means the account maintained at _______________ in
the name "_______________ as Collateral Agent of MedPartners, Inc. as pledgee of
___________________ as Purchase Contract Agent."
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Early Settlement" has the meaning specified in the Purchase Contract
Agreement.
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"Early Settlement Amount" has the meaning specified in the Purchase
Contract Agreement.
"Final Settlement Date" has the meaning specified in the Recitals.
"Holder" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, has the meaning specified in the Purchase Contract
Agreement.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company and who shall be
reasonably acceptable to the Collateral Agent or the Purchase Contract Agent, as
the case may be.
"Outstanding Securities" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Security Certificates" has the meaning specified in the
Purchase Contract Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Treasury Notes" has the meaning specified in Section 2 hereof.
"Purchase Contract" has the meaning specified in the Purchase Contract
Agreement.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this instrument.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the Purchase
Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Termination Event" has the meaning specified in the Purchase Contract
Agreement.
"Treasury Notes" has the meaning specified in the Recitals.
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SECTION 2. THE PLEDGE. The Holders from time to time of the Securities
acting through the Purchase Contract Agent, as their attorney-in-fact, hereby
pledge and grant to the Collateral Agent for the benefit of the Company, as
collateral security for the performance when due by such Holders of their
respective obligations under the Purchase Contracts comprising a portion of such
Securities, a security interest in all of the right, title and interest of such
Holders in the Treasury Notes constituting a part of such Securities.
Concurrently with the execution and delivery of the Securities, the initial
Holders and the Purchase Contract Agent shall (i) cause the Treasury Notes to be
transferred to the Collateral Agent by Federal Reserve Bank-Wire to the account
of the Collateral Agent and (ii) the Collateral Agent shall credit the Treasury
Notes to the Collateral Account; in each case pursuant to Applicable Treasury
Regulations and to the Uniform Commercial Code to the extent such laws are
applicable. The pledge provided in this Section 2 is herein referred to as the
"Pledge" and the Treasury Notes subject to the Pledge, excluding any Treasury
Notes released from the Pledge as provided in Section 4 hereof, are hereinafter
referred to as the "Pledged Treasury Notes." Subject to the Pledge, and to the
provisions of Section 4.1 of the Purchase Contract Agreement, the Holders from
time to time of the Securities shall have full beneficial ownership of the
Treasury Notes constituting a part of such Securities.
SECTION 3. DISTRIBUTION OF PRINCIPAL AND INTEREST. (a) All payments of
principal of, or interest on, any Treasury Notes constituting part of the
Securities received by the Collateral Agent shall be paid by the Collateral
Agent by wire transfer in same day funds no later than 1:00 p.m., New York City
time, on the Business Day such interest payment is received by the Collateral
Agent (provided that in the event such interest payment is received by the
Collateral Agent on a day that is not a Business Day or after 1:00 p.m., New
York City time, on a Business Day, then such payment shall be made no later than
10:00 a.m., New York City time, on the next succeeding Business Day) (i) in the
case of (A) interest payments and (B) any principal payments with respect to any
Treasury Notes that have been released from the Pledge pursuant to Section 4
hereof, to the Purchase Contract Agent to the account designated by it for such
purpose and (ii) in the case of principal payments on any Pledged Treasury
Notes, the Purchase Contract Agent on behalf of the Holders hereby directs the
Collateral Agent to make such payments to the Company, in full satisfaction of
the respective obligations of the Holders of the Securities of which such
Pledged Treasury Notes are a part under the Purchase Contracts forming a part of
such Securities. All such payments received by the Purchase Contract Agent as
provided herein shall be applied by the Purchase Contract Agent pursuant to the
provisions of the Purchase Contract Agreement. If, notwithstanding the
foregoing, the Purchase Contract Agent shall receive any payments of
principal on account of any Pledged Treasury Notes, the Purchase Contract Agent
shall hold the same as trustee of an express trust for the benefit of the
Company (and promptly deliver over to the Company) for application to the
obligations of the Holders of the Securities of which such Treasury Notes are a
part under the Purchase Contracts relating to the
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Securities of which such Treasury Notes are a part, and such Holders shall
acquire no right, title or interest in any such payments of principal so
received.
SECTION 4. RELEASE OF PLEDGED TREASURY NOTES. (a) Upon written notice
to the Collateral Agent by the Company or the Purchase Contract Agent that there
has occurred a Termination Event, resulting in the termination of the Purchase
Contracts in accordance with Section 5.8 of the Purchase Contract Agreement, the
Collateral Agent shall release all Pledged Treasury Notes from the Pledge and
shall transfer all such Treasury Notes, free and clear of any lien, pledge or
security interest created hereby, to the Purchase Contract Agent.
If such Termination Event shall result from the Company's becoming a
debtor under the Bankruptcy Code, and if the Collateral Agent shall for any
reason fail immediately to effectuate the release and transfer of all Pledged
Treasury Notes as provided by this Section 4(a), the Purchase Contract Agent
shall, subject to Section 6.12, (i) use its best efforts to obtain an opinion of
a nationally recognized law firm reasonably acceptable to the Collateral Agent
to the effect that, as a result of the Company's being the debtor in such a
bankruptcy case, the Collateral Agent will not be prohibited from releasing or
transferring the Treasury Notes as provided in this Section 4(a), and shall
deliver such opinion to the Collateral Agent within ten days after the
occurrence of such Termination Event, and if (y) the Purchase Contract Agent
shall be unable to obtain such opinion within ten days after the occurrence of
such Termination Event or (z) the Collateral Agent shall continue, after
delivery of such opinion, to refuse to effectuate the release and transfer of
all Pledged Treasury Notes as provided in this Section 4(a), then the Purchase
Contract Agent shall within fifteen days after the occurrence of such
Termination Event commence an action or proceeding in the court with
jurisdiction of the Company's case under the Bankruptcy Code seeking an order
requiring the Collateral Agent to effectuate the release and transfer of all
Pledged Treasury Notes as provided by this Section 4(a) or (ii) commence an
action or proceeding like that described in subsection (i)(z) hereof within ten
days after the occurrence of such Termination Event.
(b) Upon written notice to the Collateral Agent by the Purchase
Contract Agent that one or more Holders of Securities have elected to effect
Early Settlement of their respective obligations under the Purchase Contracts
forming a part of such Securities in accordance with the terms of the Purchase
Contracts and the Purchase Contract Agreement (setting forth the number of such
Purchase Contracts as to which such Holders have elected to effect Early
Settlement), and that the Purchase Contract Agent has received from such
Holders, and paid to the Company, the related Early Settlement Amounts pursuant
to the terms of the Purchase Contracts and the Purchase Contract Agreement and
that all conditions to such Early Settlement have been satisfied, then the
Collateral Agent shall release from the Pledge, Pledged Treasury Notes with a
principal amount equal to the product of (i) the Stated Amount times (ii) the
number of such Purchase Contracts as to which such Holders have elected to
effect Early Settlement.
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(c) Transfers of Treasury Notes pursuant to Section 4(a) or (b) shall
be by Federal Reserve Bank-Wire or in another appropriate manner, (i) if the
Collateral Agent shall have received such notification at or prior to 11:00
a.m., New York City time, on a Business Day, then no later than 2:00 p.m., New
York City time, on such Business Day and (ii) if the Collateral Agent shall have
received such notification on a day that is not a Business Day or after 11:00
a.m., New York City time, on a Business Day, then no later than 10:00 a.m., New
York City time, on the next succeeding Business Day.
SECTION 5. RIGHTS AND REMEDIES. (a) The Collateral Agent shall have all
of the rights and remedies with respect to the Pledged Treasury Notes of a
secured party under the Uniform Commercial Code as in effect in the State of New
York (the "Code") (whether or not the Code is in effect in the jurisdiction
where the rights and remedies are asserted) and such additional rights and
remedies to which a secured party is entitled under the laws in effect in any
jurisdiction where any rights and remedies hereunder may be asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Treasury Notes as provided in Section 3 hereof in satisfaction of the
obligations of the Holder of the Securities of which such Pledged Treasury Notes
are a part under the Purchase Contracts forming a part of such Securities, the
Collateral Agent shall have and may exercise, with reference to such Pledged
Treasury Notes and such obligations of such Holder, any and all of the rights
and remedies available to a secured party under the Code after default by a
debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or interest on
the Pledged Treasury Notes.
(d) The Purchase Contract Agent agrees that, from time to time, upon
the written request of the Collateral Agent, the Purchase Contract Agent shall
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the Pledge, and
the perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder.
SECTION 6. THE COLLATERAL AGENT AND THE PURCHASE CONTRACT AGENT. It is
hereby agreed as follows:
6.01. APPOINTMENT, POWERS AND IMMUNITIES. The Collateral Agent
shall act as agent for the Company hereunder with such powers as are
specifically vested in the Collateral Agent by the terms of this
Agreement, together with such other powers as are reasonably incidental
thereto. The Collateral Agent: (a) shall have no duties or
responsibilities except those
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expressly set forth in this Agreement and no implied covenants or
obligations shall be inferred from this Agreement against the
Collateral Agent, nor shall the Collateral Agent be bound by the
provisions of any agreement by any party hereto beyond the specific
terms hereof; (b) shall not be responsible for any recitals contained
in this Agreement, or in any certificate or other document referred to
or provided for in, or received by it under, this Agreement, the
Securities or the Purchase Contract Agreement, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement (other than as against the Collateral Agent), the
Securities or the Purchase Contract Agreement or any other document
referred to or provided for herein or therein or for any failure by the
Company or any other Person (except the Collateral Agent) to perform
any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection
proceedings hereunder (except pursuant to directions furnished under
Section 6.02 hereof); (d) shall not be responsible for any action taken
or omitted to be taken by it hereunder or under any other document or
instrument referred to or provided for herein or in connection herewith
or therewith, except for its own negligence; and (e) shall not be
required to advise any party as to selling or retaining, or taking or
refraining from taking any action with respect to, any securities or
other property deposited hereunder. Subject to the foregoing, during
the term of this Agreement, the Collateral Agent shall take all
reasonable action in connection with the safe keeping and preservation
of the Pledged Treasury Notes hereunder.
No provision of this Agreement shall require the Collateral
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder. In no
event shall the Collateral Agent be liable for any amount in excess of
the value of the Pledged Treasury Notes.
6.02. INSTRUCTIONS OF THE COMPANY. The Company shall have the
right, by one or more instruments in writing executed and delivered to
the Collateral Agent, to direct the time, method and place of
conducting any proceeding for any right or remedy available to the
Collateral Agent, or of exercising any power conferred on the
Collateral Agent, or to direct the taking or refraining from taking of
any action authorized by this Agreement; provided, however, that (i)
such direction shall not conflict with the provisions of any law or of
this Agreement and (ii) the Collateral Agent shall be adequately
indemnified as provided herein. Nothing in this Section 6.02 shall
impair the right of the Collateral Agent in its discretion to take any
action or omit to take any action which it deems proper and which is
not inconsistent with such direction.
6.03. RELIANCE BY COLLATERAL AGENT. The Collateral Agent shall
be entitled to rely upon any certification, order, judgment, opinion,
notice or other communication (including, without limitation, any
thereof by telephone, telecopy, telex, telegram or cable) believed by
it to be genuine and correct and to have been signed or sent by or on
behalf of the proper Person or Persons
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(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other
experts selected by the Collateral Agent. As to any matters not
expressly provided for by this Agreement, the Collateral Agent shall in
all cases be fully protected in acting, or in refraining from acting,
hereunder in accordance with instructions given by the Company in
accordance with this Agreement.
6.04. RIGHTS IN OTHER CAPACITIES. The Collateral Agent and its
affiliates may (without having to account therefor to the Company)
accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the
Purchase Contract Agent and any Holder of Securities (and any of their
subsidiaries or affiliates) as if it were not acting as the Collateral
Agent, and the Collateral Agent and its affiliates may accept fees and
other consideration from the Purchase Contract Agent and any Holder of
Securities without having to account for the same to the Company,
provided that the Collateral Agent covenants and agrees with the
Company that the Collateral Agent shall not accept, receive or permit
there to be created in its favor any security interest, lien or other
encumbrance of any kind in or upon the Pledged Treasury Notes.
6.05. NON-RELIANCE ON COLLATERAL AGENT. The Collateral Agent
shall not be required to keep itself informed as to the performance or
observance by the Purchase Contract Agent or any Holder of Securities
of this Agreement, the Purchase Contract Agreement, the Securities or
any other document referred to or provided for herein or therein or to
inspect the properties or books of the Purchase Contract Agent or any
Holder of Securities. The Collateral Agent shall not have any duty or
responsibility to provide the Company with any credit or other
information concerning the affairs, financial condition or business of
the Purchase Contract Agent or any Holder of Securities (or any of
their affiliates) that may come into the possession of the Collateral
Agent or any of its affiliates.
6.06. COMPENSATION AND INDEMNITY. The Company agrees: (i) to
pay the Collateral Agent from time to time reasonable compensation for
all services rendered by it hereunder and (ii) to indemnify the
Collateral Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of its powers and duties under this Agreement, including
the costs and expenses (including reasonable fees and expenses of
counsel) of defending itself against any claim or liability in
connection with the exercise or performance of such powers and duties.
6.07. FAILURE TO ACT. In the event of any ambiguity in the
provisions of this Agreement or any dispute between or conflicting
claims by or among the parties hereto and/or any other Person with
respect to any funds or property deposited hereunder, the Collateral
Agent shall be entitled, at its sole
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option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such
dispute or conflict shall continue, and the Collateral Agent shall not
be or become liable in any way to any of the parties hereto for its
failure or refusal to comply with such conflicting claims, demands or
instructions. The Collateral Agent shall be entitled to refuse to act
until either (i) such conflicting or adverse claims or demands shall
have been finally determined by a court of competent jurisdiction or
settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent or (ii) the Collateral
Agent shall have received security or an indemnity satisfactory to the
Collateral Agent sufficient to save the Collateral Agent harmless from
and against any and all loss, liability or expense which the Collateral
Agent may incur by reason of its acting. The Collateral Agent may in
addition elect to commence an interpleader action or seek other
judicial relief or orders as the Collateral Agent may deem necessary.
Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in
its opinion contrary to law or to the terms of this Agreement, or which
would in its opinion subject it or any of its officers, employees or
directors to liability.
6.08. RESIGNATION OF COLLATERAL AGENT. Subject to the
appointment and acceptance of a successor Collateral Agent as provided
below, (a) the Collateral Agent may resign at any time by giving notice
thereof to the Company and the Purchase Contract Agent, (b) the
Collateral Agent may be removed at any time by the Company and (c) if
the Collateral Agent fails to perform any of its material obligations
hereunder in any material respect for a period of not less than 20 days
after receiving written notice of such failure by the Purchase Contract
Agent and such failure shall be continuing, the Collateral Agent may be
removed by the Purchase Contract Agent. The Purchase Contract Agent
shall promptly notify the Company of any removal of the Collateral
Agent pursuant to clause (c) of the immediately preceding sentence.
Upon any such resignation or removal, the Company shall have the right
to appoint a successor Collateral Agent. If no successor Collateral
Agent shall have been so appointed and shall have accepted such
appointment within 30 days after the retiring Collateral Agent's giving
of notice of resignation or such removal, then the retiring Collateral
Agent may petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent. The Collateral Agent shall
be a bank which has an office in New York, New York with a combined
capital and surplus of at least $50,000,000. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor Collateral
Agent, such successor Collateral Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring Collateral Agent, and the retiring Collateral Agent shall take
all appropriate action to transfer any money and property held by it
hereunder (including the Pledged Treasury Notes) to such successor
Collateral Agent. The retiring Collateral Agent shall, upon such
succession, be discharged from its duties and obligations as Collateral
Agent
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hereunder. After any retiring Collateral Agent's resignation hereunder
as Collateral Agent, the provisions of this Section 6 shall continue in
effect for its benefit in respect of any actions taken or omitted to be
taken by it while it was acting as the Collateral Agent.
Promptly following the removal or resignation of the
Collateral Agent the Company shall give written notice thereof to
Xxxxx'x Investors Services, Inc.
6.09. RIGHT TO APPOINT AGENT OR ADVISOR. The Collateral Agent
shall have the right to appoint agents or advisors in connection with
any of its duties hereunder, and the Collateral Agent shall not be
liable for any action taken or omitted by such agents or advisors
selected in good faith.
6.10. SURVIVAL. The provisions of this Section 6 shall survive
termination of this Agreement and the resignation or removal of the
Collateral Agent.
6.11. LIMITATION ON LIABILITY. Anything in this Agreement to
the contrary notwithstanding, in no event shall the Collateral Agent or
its officers, employees or agents be liable under this Agreement to any
third party for indirect, special, punitive, or consequential loss or
damage of any kind whatsoever, including lost profits, whether or not
the likelihood of such loss or damage was known to the Collateral
Agent, or any of them, incurred without any act or deed that is found
to be attributable to gross negligence on the part of the Collateral
Agent.
6.12. THE PURCHASE CONTRACT AGENT. The duties and
responsibilities of the Purchase Contract Agent under this Agreement
shall in each case be governed by Article VII of the Purchase Contract
Agreement.
SECTION 7. AMENDMENT.
7.01. AMENDMENT WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders, the Company, the Collateral Agent and the
Purchase Contract Agent, at any time and from time to time, may amend
this Agreement, in form satisfactory to the Company, the Collateral
Agent and the Purchase Contract Agent, for any of the following
purposes:
(1) to evidence the succession of another
Person to the Company, and the assumption by any such
successor of the covenants of the Company; or
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(2) to add to the covenants of the Company
for the benefit of the Holders, or to surrender any right or
power herein conferred upon the Company; or
(3) to evidence and provide for the
acceptance of appointment hereunder by a successor Collateral
Agent or Purchase Contract Agent; or
(4) to cure any ambiguity, to correct or
supplement any provisions herein which may be inconsistent
with any other such provisions herein, or to make any other
provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely
affect the interests of the Holders.
7.02. AMENDMENT WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than 66 2/3% of the Outstanding
Securities, by Act of said Holders delivered to the Company, the
Purchase Contract Agent and the Collateral Agent, the Company, when
authorized by a Board Resolution, the Purchase Contract Agent and the
Collateral Agent may amend this Agreement for the purpose of modifying
in any manner the provisions of this Agreement or the rights of the
Holders in respect of the Securities; provided, however, that no such
supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the amount or type of Treasury
Notes underlying a Security, impair the right of the Holder of
any Security to receive interest payments on the underlying
Treasury Notes or otherwise adversely affect the Holder's
rights in or to such Treasury Notes; or
(2) otherwise effect any action that would
require the consent of the Holder of each Outstanding Security
affected thereby pursuant to the Purchase Contract Agreement
if such action were effected by an agreement supplemental
thereto; or
(3) reduce the percentage of Outstanding
Securities the consent of whose Holders is required for any
such amendment.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such Act shall approve the
substance thereof.
7.03. EXECUTION OF AMENDMENTS. In executing any
amendment permitted by this Section, the Collateral Agent and the
Purchase Contract Agent shall be entitled to receive and (subject to
Section 6.01 hereof, with respect to the Collateral Agent, and Section
7.1 of the Purchase Contract Agreement, with
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respect to the Purchase Contract Agent) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all
conditions precedent to such execution and delivery have been
satisfied.
7.04. EFFECT OF AMENDMENTS. Upon the execution of any
amendment under this Section, this Agreement shall be modified in
accordance therewith, and such amendment shall form a part of this
Agreement for all purposes; and every Holder of Security Certificates
theretofore or thereafter authenticated, executed on behalf of the
Holders and delivered under the Purchase Contract Agreement shall be
bound thereby.
7.05. REFERENCE TO AMENDMENTS. Security Certificates
authenticated, executed on behalf of the Holders and delivered after
the execution of any amendment pursuant to this Section may, and shall
if required by the Collateral Agent or the Purchase Contract Agent,
bear a notation in form approved by the Purchase Contract Agent and the
Collateral Agent as to any matter provided for in such amendment. If
the Company shall so determine, new Security Certificates so modified
as to conform, in the opinion of the Collateral Agent, the Purchase
Contract Agent and the Company, to any such amendment may be prepared
and executed by the Company and authenticated, executed on behalf of
the Holders and delivered by the Purchase Contract Agent in accordance
with the Purchase Contract Agreement in exchange for Outstanding
Security Certificates.
SECTION 8. MISCELLANEOUS.
8.01. NO WAIVER. No failure on the part of the
Collateral Agent or any of its agents to exercise, and no course of
dealing with respect to, and no delay in exercising, any right, power
or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise by the Collateral Agent or any of its agents
of any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any
remedies provided by law.
8.02. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
The Company, the Collateral Agent and the Holders from time to time of
the Securities, acting through the Purchase Contract Agent as their
attorney-in-fact, hereby submit to the nonexclusive jurisdiction of the
United States District Court for the Southern District of New York and
of any New York state court sitting in New York City for the purposes
of all legal proceedings arising out of or relating to this Agreement
or the transactions contemplated hereby. The Company, the Collateral
Agent and the Holders from
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time to time of the Securities, acting through the Purchase Contract
Agent as their attorney-in-fact, irrevocably waive, to the fullest
extent permitted by applicable law, any objection which they may now or
hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought
in such a court has been brought in an inconvenient forum.
8.03. NOTICES. All notices, requests, consents and
other communications provided for herein (including, without
limitation, any modifications of, or waivers or consents under, this
Agreement) shall be given or made in writing (including, without
limitation, by telecopy) delivered to the intended recipient at the
"Address for Notices" specified below its name on the signature pages
hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as
otherwise provided in this Agreement, all such communications shall be
deemed to have been duly given when transmitted by telecopier or
personally delivered or, in the case of a mailed notice, upon receipt,
in each case given or addressed as aforesaid.
8.04. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the respective successors and
assigns of the Company, the Collateral Agent and the Purchase Contract
Agent, and the Holders from time to time of the Securities, by their
acceptance of the same, shall be deemed to have agreed to be bound by
the provisions hereof and to have ratified the agreements of, and the
grant of the Pledge hereunder by, the Purchase Contract Agent.
8.05. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties hereto
may execute this Agreement by signing any such counterpart.
8.06. SEVERABILITY. If any provision hereof is
invalid and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof shall remain
in full force and effect in such jurisdiction and shall be liberally
construed in order to carry out the intentions of the parties hereto as
nearly as may be possible and (ii) the invalidity or unenforceability
of any provision hereof in any jurisdiction shall not affect the
validity or enforceability of such provision in any other jurisdiction.
8.07. EXPENSES, ETC. The Company agrees to reimburse
the Collateral Agent for: (a) all reasonable out-of-pocket costs and
expenses of the Collateral Agent (including, without limitation, the
reasonable fees and expenses of counsel to the Collateral Agent), in
connection with (i) the negotiation, preparation, execution and
delivery or performance of this Agreement and (ii) any modification,
supplement or waiver of any of the terms of this Agreement; (b) all
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reasonable costs and expenses of the Collateral Agent (including,
without limitation, reasonable fees and expenses of counsel) in
connection with (i) any enforcement or proceedings resulting or
incurred in connection with causing any Holder of Securities to satisfy
its obligations under the Purchase Contracts forming a part of the
Securities and (ii) the enforcement of this Section 8.07; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or
charges levied by any governmental or revenue authority in respect of
this Agreement or any other document referred to herein and all costs,
expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security
interest contemplated hereby.
8.08. SECURITY INTEREST ABSOLUTE. All rights of the
Collateral Agent and security interests hereunder, and all obligations
of the Holders from time to time of the Securities hereunder, shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability
of any provision of the Purchase Contracts or the Securities
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place
of payment of, or any other term of, or any increase in the
amount of, all or any of the obligations of Holders of
Securities under the related Purchase Contracts, or any other
amendment or waiver of any term of, or any consent to any
departure from any requirement of, the Purchase Contract
Agreement or any Purchase Contract or any other agreement or
instrument relating thereto; or
(c) any other circumstance which might
otherwise constitute a defense available to, or discharge of,
a borrower, a guarantor or a pledgor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MEDPARTNERS, INC.
By:
-----------------------------------------
Name:
Title:
Address for Notices:
MedPartners, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: J. Xxxxxx Xxxxxxxx, Xx.
Telecopy: (000) 000-0000
[PURCHASE CONTRACT AGENT], as
Purchase Contract Agent and as attorney-in-
fact of the Holders from time to time of the
Securities
By:
-----------------------------------------
Name:
Title:
Address for Notices:
[Purchase Contract Agent]
[Address]
Attention:
Telecopy:
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[Collateral Agent]
[Address]
as Collateral Agent
By:
-----------------------------------------
Name:
Title:
Address for Notices:
Attention:
Telecopy:
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