1
Exhibit (b)(4)
================================================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
Between
CHEMED CORPORATION
and
FIRSTAR BANK, NATIONAL ASSOCIATION
Dated as of February 7, 2000
================================================================================
2
2
CROSS-REFERENCE TABLE */
Section of Trust Section of
Indenture Act of 1939 Guarantee Agreement
--------------------- -------------------
310(a)......................................................... 4.01(a)
310(b)......................................................... 4.01(c), 2.08
310(c)......................................................... Inapplicable
311(a)......................................................... 2.02(b)
311(b)......................................................... 2.02(b)
311(c)......................................................... Inapplicable
312(a)......................................................... 2.02(a)
312(b)......................................................... 2.02(b)
313 ......................................................... 2.03
314(a)......................................................... 2.04
314(b)......................................................... Inapplicable
314(c)......................................................... 2.05
314(d)......................................................... Inapplicable
314(e)......................................................... 1.01, 2.05, 3.02
314(f)......................................................... 2.01, 3.02
315(a)......................................................... 3.01(d)
315(b)......................................................... 2.07
315(c)......................................................... 3.01
315(d)......................................................... 3.01(d)
316(a)......................................................... 1.01, 2.06, 5.04
316(b)......................................................... 5.03
316(c)......................................................... 8.02
317(a)......................................................... Inapplicable
317(b)......................................................... Inapplicable
318(a)......................................................... 2.01(b)
318(b)......................................................... 2.01
318(c)......................................................... 2.01(a)
--------
*/ This Cross-Reference Table does not constitute part of the Guarantee
Agreement and shall not affect the interpretation of any of its terms or
provisions.
3
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01. Definitions and Interpretation........................ 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. Trust Indenture Act; Application...................... 5
SECTION 2.02. Lists of Holders of Securities........................ 6
SECTION 2.03. Reports by the Guarantee
Trustee............................................. 6
SECTION 2.04. Periodic Reports to Guarantee
Trustee............................................. 6
SECTION 2.05. Evidence of Compliance with
Conditions Precedent................................ 6
SECTION 2.06. Events of Default; Waiver............................. 7
SECTION 2.07. Event of Default; Notice.............................. 7
SECTION 2.08. Conflicting Interests................................. 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
GUARANTEE TRUSTEE
SECTION 3.01. Powers and Duties of the Guarantee
Trustee............................................... 7
SECTION 3.02. Certain Rights of Guarantee Trustee................... 9
SECTION 3.03. Not Responsible for Recitals or
Issuance of Guarantee............................... 12
4
2
PAGE
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01. Guarantee Trustee;
Eligibility......................................... 12
SECTION 4.02. Appointment, Removal and
Resignation of Guarantee
Trustee............................................. 13
ARTICLE V
GUARANTEE
SECTION 5.01. Guarantee............................................. 13
SECTION 5.02. Subordination......................................... 14
SECTION 5.03. Waiver of Notice and Demand........................... 14
SECTION 5.04. Obligations Not Affected.............................. 14
SECTION 5.05. Rights of Holders..................................... 15
SECTION 5.06. Guarantee of Payment.................................. 16
SECTION 5.07. Subrogation........................................... 16
SECTION 5.08. Independent Obligations............................... 16
SECTION 5.09. Conversion............................................ 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. Limitation of Transactions............................ 17
SECTION 6.02. Ranking............................................... 18
ARTICLE VII
TERMINATION
SECTION 7.01. Termination........................................... 18
5
3
PAGE
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. Exculpation........................................... 18
SECTION 8.02. Indemnification....................................... 19
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Successors and Assigns................................ 19
SECTION 9.02. Amendments............................................ 19
SECTION 9.03. Notices............................................... 20
SECTION 9.04. Benefit............................................... 21
SECTION 9.05. Governing Law......................................... 21
6
THIS PREFERRED SECURITIES GUARANTEE
AGREEMENT ("Guarantee"), dated as of February 7,
2000, is executed and delivered by CHEMED
CORPORATION, a Delaware corporation (the
"Guarantor"), and Firstar Bank, National Association,
a United States banking corporation, as trustee (the
"Guarantee Trustee"), for the benefit of the HOLDERS
(as defined herein) from time to time of the
Preferred Securities (as defined herein) of CHEMED
CAPITAL TRUST, a Delaware statutory business trust
(the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of February 7, 2000, among the trustees of
the Issuer named therein, the Guarantor, as sponsor, and the holders from time
to time of undivided beneficial interests in the assets of the Issuer, the
Issuer is issuing and offering for exchange (the "Exchange Offer") on the date
hereof up to 2,000,000 convertible trust preferred securities, having an
aggregate stated liquidation amount of up to $54,000,000 designated the
Convertible Trust Preferred Securities (liquidation amount $27 per Preferred
Security) (the "Preferred Securities");
WHEREAS as incentive for the Holders to participate in the
Exchange Offer, the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Guarantee, to pay on a subordinated basis to the
Holders the Guarantee Payments (as defined herein) and to make certain other
payments on the terms and conditions set forth herein; and
WHEREAS the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Guarantee for the benefit of the holders of the Common
Securities (as defined herein) except that if a Debenture Event of Default or a
Declaration Event of Default (each as defined herein) (or an event that, with
passage of time, would become such a Debenture Event of Default) shall have
occurred and be continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under the Common Securities Guarantee are
subordinated to the rights of Holders to receive Guarantee Payments under this
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor hereby agrees shall
benefit the Guarantor, the
7
2
Guarantor executes and delivers this Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.01. DEFINITIONS AND INTERPRETATION. In
this Guarantee, unless the context otherwise requires:
(a) capitalized terms used in this Guarantee but not defined
in the preamble above have the respective meanings assigned to them in
this Section 1.01; terms defined in the Declaration as at the date of
execution of this Guarantee have the same meaning when used in this
Guarantee unless otherwise defined in this Guarantee;
(b) a term defined anywhere in this Guarantee has
the same meaning throughout;
(c) all references to "the Guarantee" or "this
Guarantee" are to this Guarantee as modified,
supplemented or amended from time to time;
(d) all references in this Guarantee to Articles
and Sections are to Articles and Sections of this
Guarantee unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee unless otherwise defined in this
Guarantee or unless the context otherwise requires; and
(f) a reference to the singular includes the
plural and vice versa.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"COMMON SECURITIES" means the convertible common
securities (liquidation amount $27 per common security)
8
3
representing common undivided beneficial interests in the
assets of the Issuer.
"COVERED PERSON" means any Holder or beneficial owner of
Preferred Securities.
"DEBENTURE EVENT OF DEFAULT" means an Event of Default as
defined in the Indenture.
"DEBENTURES" means the series of convertible junior
subordinated debt securities of the Guarantor designated the Convertible Junior
Subordinated Debentures Due 2030 held by the Property Trustee (as defined in the
Indenture) of the Issuer.
"DECLARATION EVENT OF DEFAULT" means an Event of Default as
defined in the Declaration.
"EVENT OF DEFAULT" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee; PROVIDED, HOWEVER, that
except with respect to a default in payment of any Guarantee Payment, the
Guarantor shall have received notice of default and shall not have cured such
default within 60 days after receipt of such notice.
"GUARANTEE PAYMENTS" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accrued and
unpaid Distributions (as defined in the Declaration) that are required to be
paid on the Preferred Securities, to the extent that the Issuer shall have funds
on hand available therefor at such time, (ii) the applicable Redemption Price
(as defined in the Indenture) with respect to Preferred Securities called for
redemption by the Issuer, to the extent that the Issuer has funds on hand
available therefor at such time, and (iii) upon a voluntary or involuntary
dissolution, winding up or liquidation of the Issuer (other than in connection
with the distribution of Debentures to the Holders or the redemption of all the
Preferred Securities), the lesser of (a) the aggregate liquidation amount
thereof plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution") to the extent the Issuer has
funds available therefor and (b) the amount of assets of the Issuer remaining
available for distribution to Holders upon liquidation of the Issuer after
satisfaction of liabilities to creditors of the Issuer as required by applicable
law.
9
4
"GUARANTEE TRUSTEE" means Firstar Bank, National Association
until a Successor Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Guarantee and thereafter means each
such Successor Guarantee Trustee.
"HOLDER" means any holder, as registered on the books and
records of the Issuer of any outstanding Preferred Securities; PROVIDED,
HOWEVER, that, in determining whether the holders of the requisite percentage in
liquidation amount of the Preferred Securities have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"INDEMNIFIED PERSON" means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Guarantee
Trustee.
"INDENTURE" means the Indenture dated as of February 7, 2000,
among the Guarantor and Firstar Bank, National Association, as trustee, and any
indenture supplemental thereto, pursuant to which the Debentures are to be
issued to the Property Trustee of the Issuer.
"MAJORITY IN LIQUIDATION AMOUNT OF THE PREFERRED SECURITIES"
means, except as provided by the Trust Indenture Act, Holder(s), voting
separately as a class, representing more than 50% of the stated aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Preferred
Securities then outstanding.
"OFFICERS' CERTIFICATE" means, with respect to any Person, a
certificate signed by the Chairman of the Board, President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Controller, the Secretary or
an Assistant Secretary of such Person, and delivered to the Guarantee Trustee.
Any Officers' Certificate delivered with respect to compliance with a condition
or covenant provided for in this Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
10
5
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer 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, in the opinion of each such
officer, such condition or covenant has been complied with.
"PERSON" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"RESPONSIBLE OFFICER" means, with respect to the Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"SENIOR DEBT" shall have the meaning set forth in the
Indenture.
"SUCCESSOR GUARANTEE TRUSTEE" means a successor Guarantee
Trustee possessing the qualifications to act as Guarantee Trustee under Section
4.01.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.01. TRUST INDENTURE ACT; APPLICATION. (a) This
Guarantee is subject to the provisions of the Trust Indenture Act that are
required to be part of this Guarantee, which are incorporated by reference
hereto, and shall, to the extent applicable, be governed by such provisions;
and
11
6
(b) If and to the extent that any provision of this Guarantee
limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.02. LISTS OF HOLDERS OF SECURITIES. (a) The
Guarantor shall provide the Guarantee Trustee (i) within 14 days after January 1
and June 30 of each year, commencing June 30, 2000, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of such date; PROVIDED that the Guarantor shall
not be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Guarantee
Trustee by the Guarantor, and (ii) at any other time, within 30 days of receipt
by the Guarantor of a written request for a List of Holders as of a date no more
than 14 days before such List of Holders is given to the Guarantee Trustee. The
Guarantee Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.03. REPORTS BY THE GUARANTEE TRUSTEE. Within 60 days
after March 15 of each year, commencing March 15, 2000, the Guarantee Trustee
shall provide to the Holders of the Securities such reports as are required by
Section 313 of the Trust Indenture Act, if any, in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee shall
also comply with the requirements of Section 313(d) of the Trust Indenture Act.
SECTION 2.04. PERIODIC REPORTS TO GUARANTEE TRUSTEE. The
Guarantor shall provide to the Guarantee Trustee, the Securities and Exchange
Commission and the Holders such documents, reports and information as required
by Section 314 (if any) and the compliance certificate required by Section 314
of the Trust Indenture Act in the form, in the manner and at the times required
by Section 314 of the Trust Indenture Act.
SECTION 2.05. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
which relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate
12
7
or opinion required to be given by an officer pursuant to Section 314(c)(1) may
be given in the form of an Officers' Certificate.
SECTION 2.06. EVENTS OF DEFAULT; WAIVER. The Holders of a
Majority in liquidation amount of the Preferred Securities may, by vote, on
behalf of the Holders of all of the Preferred Securities, waive any past Event
of Default and its consequences. Upon such waiver, any such Event of Default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Guarantee, but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent therefrom.
SECTION 2.07. EVENT OF DEFAULT; NOTICE. (a) The Guarantee
Trustee shall, within 90 days after the occurrence of an Event of Default
actually known to the Guarantee Trustee, transmit by mail, first-class postage
prepaid, to the Holders, notices of all Events of Default known to the Guarantee
Trustee, unless such defaults have been cured before the giving of such notice;
PROVIDED that, except in the case of a default in the payment of a Guarantee
Payment, the Guarantee Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee, or a trust
committee of directors and/or Responsible Officers of the Guarantee Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders.
(b) The Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Guarantee Trustee shall have received written notice or a Responsible Officer
charged with the administration of the Declaration shall have obtained written
notice.
SECTION 2.08. CONFLICTING INTERESTS. The Declaration shall be
deemed to be specifically described in this Guarantee for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE SECTION 3.01.
POWERS AND DUTIES OF THE GUARANTEE TRUSTEE. (a) This Guarantee shall be held
by the Guarantee Trustee for the benefit of the Holders, and the Guarantee
13
8
Trustee shall not transfer this Guarantee to any Person except a Holder
exercising his or her rights pursuant to Section 5.05(d) or to a Successor
Guarantee Trustee on acceptance by such Successor Guarantee Trustee of its
appointment to act as Successor Guarantee Trustee. The right, title and interest
of the Guarantee Trustee shall automatically vest in any Successor Guarantee
Trustee, and such vesting and cessation of title shall be effective whether or
not conveyancing documents have been executed and delivered pursuant to the
appointment of such Successor Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders.
(c) The Guarantee Trustee, before the occurrence of any Event
of Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Guarantee, and no implied covenants shall be read into this Guarantee
against the Guarantee Trustee. In case an Event of Default has occurred (that
has not been cured or waived pursuant to Section 2.06), the Guarantee Trustee
shall exercise such of the rights and powers vested in it by this Guarantee, and
use the same degree of care and skill in its exercise thereof, as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(d) No provision of this Guarantee shall be construed to
relieve the Guarantee Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee, and the Guarantee Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee,
and no implied covenants or obligations shall be read into
this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part
of the Guarantee Trustee, the Guarantee Trustee
14
9
may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Guarantee Trustee
and conforming to the requirements of this Guarantee; but in
the case of any such certificates or opinions that by any
provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer of the
Guarantee Trustee, unless it shall be proved that the Guarantee Trustee
was negligent in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Guarantee Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Preferred Securities, relating to
the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee, or exercising any trust or power
conferred upon the Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers.
SECTION 3.02. CERTAIN RIGHTS OF GUARANTEE TRUSTEE. (a) Subject
to the provisions of Section 3.01:
(i) the Guarantee Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed, sent or presented by the
proper party or parties;
15
10
(ii) any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Guarantee Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor;
(iv) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or reregistration thereof);
(v) the Guarantee Trustee may consult with legal counsel of
its selection, and the written advice or opinion of such legal counsel
with respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to
be taken by it hereunder in good faith and in accordance with such
advice or opinion. Such legal counsel may be legal counsel to the
Guarantor or any of its Affiliates and may include any of the
Guarantor's employees. The Guarantee Trustee shall have the right at
any time to seek instructions concerning the administration of this
Guarantee from any court of competent jurisdiction.
(vi) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee at
the request or direction of any Holder, unless such Holder shall have
provided to the Guarantee Trustee security and indemnity satisfactory
to the Guarantee Trustee against the costs, expenses (including
attorneys' fees and expenses) and liabilities that might be incurred by
it in complying with such request or direction, including such
reasonable advances as may be requested by the Guarantee Trustee;
PROVIDED that nothing contained in this Section 3.02(a)(vi) shall be
taken to relieve the Guarantee Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and powers vested
in it by this Guarantee;
(vii) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated
16
11
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed with due care by it hereunder;
(ix) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action; it being understood that no third party shall
be required to inquire as to the authority of the Guarantee Trustee to
so act or as to its compliance with any of the terms and provisions of
this Guarantee, both of which shall be conclusively evidenced by the
Guarantee Trustee's or its agent's taking such action; and
(x) whenever in the administration of this Guarantee the
Guarantee Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder, the Guarantee Trustee (i) may request written instructions
from the Holders or, other than with respect to enforcing any remedy or
right or taking any action related thereto, the Guarantor, (ii) may
refrain from enforcing such remedy or right or taking such other action
until such written instructions are received, and (iii) shall be
protected in acting in accordance with such written instructions.
(b) No provision of this Guarantee shall be deemed to impose
any duty or obligation on the Guarantee Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Guarantee Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Guarantee Trustee
shall be construed to be a duty.
17
12
SECTION 3.03. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
GUARANTEE. The recitals contained in this Guarantee shall be taken as the
statements of the Guarantor, and the Guarantee Trustee does not assume any
responsibility for their correctness. The Guarantee Trustee makes no
representations as to the validity or sufficiency of this Guarantee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.01. GUARANTEE TRUSTEE; ELIGIBILITY. (a) There
shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or Person permitted by
the Securities and Exchange Commission to act as an institutional
trustee under the Trust Indenture Act, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus
of at least 50 million U.S. dollars ($50,000,000), and subject to
supervision or examination by Federal, State, Territorial or District
of Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of
the supervising or examining authority referred to above, then, for the
purposes of this Section 4.01(a)(ii), 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.
(b) If at any time the Guarantee Trustee shall cease to be
eligible to so act under Section 4.01(a), the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.02(c).
(c) If the Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 3.10(b) of the Trust
Indenture Act, the Guarantee Trustee and Guarantor shall in all respects comply
with the provisions of Section 3.10(b) of the Trust Indenture Act.
18
13
SECTION 4.02. APPOINTMENT, REMOVAL AND RESIGNATION OF
GUARANTEE TRUSTEE. (a) Subject to Section 4.02(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance
with Section 4.02(a) until a Successor Guarantee Trustee has been appointed and
has accepted such appointment by written instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold
office until a Successor Guarantee Trustee shall have been appointed or until
its removal or resignation. The Guarantee Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
executed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the
resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.02 within 60
days after delivery to the Guarantor of an instrument of removal or resignation,
the Guarantee Trustee resigning or being removed may petition any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or
omissions to act of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or
resignation of the Guarantee Trustee pursuant to this Section 4.02, the
Guarantor shall pay to the Guarantee Trustee all amounts accrued to the date of
such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.01. GUARANTEE. The Guarantor irrevocably and
unconditionally agrees to pay in full on a subordinated basis to the Holders the
Guarantee Payments (without duplication of amounts theretofore paid by or on
behalf of the Issuer), as and when due, in coin or currency
19
14
of the United States of America which at the time of payment is legal tender for
payment of public and private debt regardless of any defense, right of setoff or
counterclaim that the Issuer may have or assert other than the defense of
payment. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
causing the Issuer to pay such amounts to the Holders.
SECTION 5.02. SUBORDINATION. If a Debenture Event of Default
or a Declaration Event of Default (or an event that, with passage of time, would
become a Debenture Event of Default) shall have occurred and be continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders to
receive Guarantee Payments under this Guarantee.
SECTION 5.03. WAIVER OF NOTICE AND DEMAND. The Guarantor
hereby waives notice of acceptance of this Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, any right to
require a proceeding first against the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.04. OBLIGATIONS NOT AFFECTED. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee shall
in no way be affected or impaired by reason of the happening from time to time
of any of the following:
(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions, the amount payable upon redemption
or the amount payable upon liquidation or any other sums payable under
the terms of the Preferred Securities or the extension of time for the
performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of
time for payment of Distributions that results from the extension of
any interest payment period on the Debentures permitted by the
Indenture);
20
15
(c) any failure, omission, delay or lack of diligence on the
part of the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Holders pursuant to the
terms of the Preferred Securities, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.04 that the obligations of the
Guarantor hereunder shall be absolute and unconditional under any and
all circumstances.
There shall be no obligation of the Holders or any other
Person to give notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 5.05. RIGHTS OF HOLDERS. The Guarantor expressly
acknowledges that:
(a) This Guarantee will be deposited with the Guarantee
Trustee to be held for the benefit of the Holders.
(b) The Guarantee Trustee has the right to enforce this
Guarantee on behalf of the Holders.
(c) The Holders of a Majority in liquidation amount of the
Preferred Securities have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of this Guarantee or exercising any trust
or power conferred upon the Guarantee Trustee under this Guarantee.
21
16
(d) Any Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee,
without first instituting a legal proceeding against the Issuer, the
Guarantee Trustee or any other Person.
SECTION 5.06. GUARANTEE OF PAYMENT. This Guarantee creates a
guarantee of payment and not of collection. This Guarantee will not be
discharged except by payment of the Guarantee Payments in full (without
duplication of amounts theretofore paid by the Issuer) or upon distribution of
Debentures to Holders as provided in the Declaration.
SECTION 5.07. SUBROGATION. The Guarantor shall be subrogated
to all (if any) rights of the Holders against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Guarantee and shall
have the right to waive payment by the Issuer pursuant to Section 5.01;
PROVIDED, HOWEVER, that the Guarantor shall not (except to the extent required
by mandatory provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity, reimbursement or
other agreement, in all cases as a result of payment under this Guarantee, if,
at the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount shall be paid to the Guarantor in violation of the
preceding sentence, the Guarantor agrees to hold such amount in trust for the
Holders and to pay over such amount to the Holders.
SECTION 5.08. INDEPENDENT OBLIGATIONS. The Guarantor
acknowledges that its obligations hereunder are independent of the obligations
of the Issuer with respect to the Preferred Securities, and that the Guarantor
shall be liable as principal and as debtor hereunder to make Guarantee Payments
pursuant to the terms of this Guarantee notwithstanding the occurrence of any
event referred to in subsections (a) through (g), inclusive, of Section 5.04
hereof.
SECTION 5.09. CONVERSION. The Guarantor acknowledges its
obligation to issue and deliver common stock upon the conversion of the
Preferred Securities.
22
17
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.01. LIMITATION OF TRANSACTIONS. So long as any
Preferred Securities remain outstanding, if there shall have occurred and be
continuing a Debenture Event of Default, a Declaration Event of Default or an
event that, with the giving of notice or the lapse of time or both, would
constitute a Debenture Event of Default or a Declaration Event of Default, or a
selection by the Guarantor of a Deferral Period as provided in the Indenture and
such period, or any extension thereof, shall be continuing, then (a) the
Guarantor shall not declare or pay any dividend on, or make any distribution
with respect to, or redeem, purchase, acquire or make a liquidation payment with
respect to, any of its capital stock (other than stock dividends paid by the
Guarantor which stock dividends consist of the stock of the same class as that
on which the dividend is being paid), (b) the Guarantor shall not make any
payment of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities issued by the Guarantor which rank PARI PASSU with or
junior in interest to the Debentures and (c) shall not make any guarantee
payments with respect to any guarantee by the Guarantor of the debt securities
of any subsidiary of the Guarantor if such guarantee ranks PARI PASSU with or
junior in interest to the Debentures (in each case, other than (A) dividends or
distributions in Common Stock, (B) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (C) payments under this Guarantee, (D) purchases or
acquisitions of shares of the Common Stock in connection with the satisfaction
by the Guarantor of its obligations under any employee benefit plan or any other
contractual obligation of the Guarantor (other than a contractual obligation
ranking PARI PASSU with or junior in interest to the Securities), (E) as a
result of a reclassification of the Guarantor's capital stock or the exchange or
conversion of one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock or (F) the purchase of
fractional interests in shares of the Guarantor's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged).
23
18
SECTION 6.02. RANKING. This Guarantee will constitute an
unsecured obligation of the Guarantor and will rank subordinate to all Senior
Debt of the Guarantor to the same extent that the Debentures are subordinated
pursuant to the Indenture.
ARTICLE VII
TERMINATION
SECTION 7.01. TERMINATION. This Guarantee shall terminate upon
(i) full payment of the amount payable upon redemption of all Preferred
Securities, (ii) the distribution of the Guarantor's common stock to the Holders
in respect of the conversion of the Preferred Securities into the Guarantor's
common stock or the distribution of the Debentures to the Holders of all of the
Preferred Securities or (iii) full payment of the amounts payable in accordance
with the Declaration upon liquidation of the Issuer. Notwithstanding the
foregoing, this Guarantee will continue to be effective or will be reinstated,
as the case may be, if at any time any Holder must restore payment of any sums
paid under the Preferred Securities or under this Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.01. EXCULPATION. (a) No Indemnified Person shall be
liable, responsible or accountable in damages or otherwise to the Guarantor or
any Covered Person for any loss, damage or claim incurred by reason of any act
or omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Guarantee or by law, except that an Indemnified
Person shall be liable for any such loss, damage or claim incurred by reason of
such Indemnified Person's negligence or willful misconduct with respect to such
acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on
24
19
behalf of the Guarantor, including information, opinions, reports or statements
as to the value and amount of the assets, liabilities, profits, losses, or any
other facts pertinent to the existence and amount of assets from which
Distributions to Holders might properly be paid.
SECTION 8.02. INDEMNIFICATION. (a) The Guarantor agrees to
indemnify each Indemnified Person for, and to hold each Indemnified Person
harmless against, any and all loss, liability or expense including taxes (other
than taxes based on the income of such Indemnified Person) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this Section 8.02 shall survive the termination of
this Guarantee.
(b) To the fullest extent permitted by applicable law,
expenses (including legal fees and expenses) incurred by an Indemnified Person
in defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Guarantor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Guarantor of an
undertaking by or on behalf of the Indemnified Person to repay such amount if it
shall be determined that the Indemnified Person is not entitled to be
indemnified as authorized in Section 8.02(a).
(c) No Indemnified Person shall claim or exact any lien or
charge on any Guarantee Payments as a result of any amount due to it under this
Guarantee.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. SUCCESSORS AND ASSIGNS. All guarantees and
agreements contained in this Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders.
SECTION 9.02. AMENDMENTS. Except with respect to any changes
that do not adversely affect the rights of Holders (in which case no consent of
Holders will be required), this Guarantee may only be amended with the prior
25
20
approval of the Holders of a majority in liquidation amount of the Preferred
Securities then outstanding. The provisions of Section 12.02 of the Declaration
with respect to meetings of holders of the Securities (as defined in the
Declaration) apply to the giving of such approval.
SECTION 9.03. NOTICES. All notices provided for in this
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first-class mail, as follows:
(a) if given to the Issuer, in care of the Regular Trustees at
the Issuer's mailing address set forth below (or such other address as
the Issuer may give notice):
Chemed Capital Trust
c/o Chemed Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000-0000
Attention: Chief Financial Officer
(b) If given to the Guarantee Trustee, at the Guarantee
Trustee's mailing address set forth below (or such other address as the
Guarantee Trustee may give notice of to the Holders):
Firstar Bank, National Association
000 Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
(c) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may
give notice of to the Holders):
Chemed Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000-0000
Attention: Corporate Trust Administration
(d) If given to any Holder, at the address set forth on the
books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document
26
21
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 9.04. BENEFIT. This Guarantee is solely for the
benefit of the Holders and, subject to Section 3.01(a), is not separately
transferable from the Preferred Securities.
SECTION 9.05. GOVERNING LAW. THIS PREFERRED SECURITIES
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE
PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT TO SUBMIT TO THE
EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND OF THE UNITED
STATES DISTRICT COURTS LOCATED IN THE STATE OF DELAWARE FOR ANY LAWSUITS, CLAIMS
OR OTHER PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND AGREE NOT
TO COMMENCE ANY SUCH LAWSUIT, CLAIM OR OTHER PROCEEDING EXCEPT IN SUCH COURTS.
THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO
THE LAYING OF VENUE OF ANY LAWSUIT, CLAIM, OR OTHER PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT IN THE COURTS OF THE STATE OF DELAWARE OR THE UNITED
STATES DISTRICT COURTS LOCATED IN THE STATE OF DELAWARE, AND HEREBY FURTHER
IRREVOCABLY AND UNCONDITIONALLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH LAWSUIT, CLAIM OR OTHER PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
27
22
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
CHEMED CORPORATION, as
Guarantor,
by
--------------------------
Name: Xxxxx X. XxXxxxxx
Title: President
FIRSTAR BANK, NATIONAL
ASSOCIATION, as Guarantee
Trustee,
by
--------------------------
Name:
Title:
