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EXHIBIT (4)-5
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of September ___, 1997 (this
"Agreement"), among MedPartners, Inc., a Delaware corporation (the "Company"),
PNC Bank, Kentucky, Inc., a Kentucky banking corporation, not individually but
solely as collateral agent (in such capacity, together with its successors in
such capacity, the "Collateral Agent"), and The First National Bank of Chicago,
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
____________, 2000 ("Treasury Notes") having a principal amount equal to $______
(the "Stated Amount") and maturing on ________, 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 September __, 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 (Sections)
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 PNC
Bank, Kentucky, Inc. in the name "PNC Bank, Kentucky, Inc. as Collateral Agent
of MedPartners, Inc. as pledgee of The First National Bank of Chicago 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. 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 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.
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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.
(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
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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 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
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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 (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.
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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 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
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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 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.
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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
(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
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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 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.
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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 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
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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
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:
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(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
THE FIRST NATIONAL BANK OF
CHICAGO, as Purchase Contract Agent
and as attorney-in-fact of the Holders
from time to time of the Securities
By:
--------------------------------------
Name:
Title:
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Address for Notices:
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Services Division
Telecopy: (000) 000-0000
PNC Bank, Kentucky, Inc.,
as Collateral Agent
By:
--------------------------------------
Name:
Title:
Address for Notices:
PNC Bank, Kentucky, Inc.
000 Xxxx Xxxxxxxxx Xx.
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
Telecopy:(000) 000-0000
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