Exhibit 4.2
CNL AMERICAN PROPERTIES, INC.,
as Issuer
________________________,
as Trustee
INDENTURE
Dated as of ____________, 1999
______% Callable Notes due 2006
TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE...................... 1
Section 1.1 Definitions..................................................... 1
Section 1.2 Other Definitions............................................... 7
Section 1.3 Incorporation by Reference of Trust Indenture Act.............. 7
Section 1.4 Rules of Construction........................................... 7
ARTICLE II. THE SECURITIES.................................................. 8
Section 2.1 Issuable in Series; Form and Dating............................. 8
Section 2.2 Establishment of Terms of Series of Securities.................. 8
Section 2.3 Execution and Authentication.................................... 9
Section 2.4 Registrar and Paying Agent...................................... 9
Section 2.5 Paying Agent to Hold Money in Trust............................. 10
Section 2.6 Securityholder Lists............................................ 10
Section 2.7 Transfer and Exchange........................................... 10
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities................ 10
Section 2.9 Outstanding Securities.......................................... 11
Section 2.10 Treasury Securities............................................. 11
Section 2.11 Temporary Securities............................................ 11
Section 2.12 Cancellation.................................................... 12
Section 2.13 Defaulted Interest.............................................. 12
Section 2.14 CUSIP Numbers................................................... 12
ARTICLE III REDEMPTION...................................................... 12
Section 3.1 Optional Redemption............................................. 12
Section 3.2 Mandatory Redemption............................................ 12
Section 3.3 Notice to Trustee............................................... 13
Section 3.4 Selection of Securities to be Redeemed.......................... 13
Section 3.5 Notice of Redemption............................................ 13
Section 3.6 Effect of Notice of Redemption.................................. 14
Section 3.7 Deposit of Redemption Price..................................... 14
Section 3.8 Securities Redeemed in Part..................................... 14
ARTICLE IV COVENANTS....................................................... 14
Section 4.1 Payment of Principal and Interest............................... 14
Section 4.2 Reports......................................................... 14
Section 4.3 Compliance Certificate.......................................... 14
Section 4.4 Corporate Existence............................................. 14
Section 4.5 Limitation on Incurrences of Indebtedness....................... 15
Section 4.6 Maintenance of Office or Agency................................. 15
ARTICLE V SUCCESSORS...................................................... 16
Section 5.1 When Company May Merge, Etc..................................... 16
Section 5.2 Successor Person Substituted.................................... 16
ARTICLE VI DEFAULTS AND REMEDIES........................................... 16
Section 6.1 Events of Default............................................... 16
Section 6.2 Acceleration of Maturity; Rescission and Annulment.............. 17
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Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee. 18
Section 6.4 Trustee May File Proofs of Claim................................ 19
Section 6.5 Trustee May Enforce Claims Without Possession of Securities..... 19
Section 6.6 Application of Money Collected.................................. 19
Section 6.7 Limitation on Suits............................................. 20
Section 6.8 Unconditional Right of Holders to Receive Principal and Interest 20
Section 6.9 Restoration of Rights and Remedies.............................. 20
Section 6.10 Rights and Remedies Cumulative.................................. 21
Section 6.11 Delay or Omission Not Waiver.................................... 21
Section 6.12 Control by Holders.............................................. 21
Section 6.13 Waiver of Past Defaults......................................... 21
Section 6.14 Undertaking for Costs........................................... 22
ARTICLE VII TRUSTEE......................................................... 22
Section 7.1 Duties of Trustee............................................... 22
Section 7.2 Rights of Trustee............................................... 23
Section 7.3 Individual Rights of Trustee.................................... 24
Section 7.4 Trustee's Disclaimer............................................ 24
Section 7.5 Notice of Defaults.............................................. 24
Section 7.6 Reports by Trustee to Holders................................... 24
Section 7.7 Compensation and Indemnity...................................... 24
Section 7.8 Replacement of Trustee.......................................... 25
Section 7.9 Successor Trustee by Merger, Etc................................ 26
Section 7.10 Eligibility; Disqualification................................... 26
Section 7.11 Preferential Collection of Claims Against Company............... 26
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE.......................... 26
Section 8.1 Satisfaction and Discharge of Indenture......................... 26
Section 8.2 Application of Trust Funds, Indemnification..................... 27
Section 8.3 Legal Defeasance of Securities of any Series.................... 28
Section 8.4 Covenant Defeasance............................................. 29
Section 8.5 Repayment to Company............................................ 30
Section 8.6 Reinstatement................................................... 30
ARTICLE IX AMENDMENTS AND SUPPLEMENTS...................................... 30
Section 9.1 Without Consent of Holders...................................... 30
Section 9.2 With Consent of Holders......................................... 31
Section 9.3 Limitations..................................................... 31
Section 9.4 Compliance with Trust Indenture Act............................. 31
Section 9.5 Revocation and Effect of Consents............................... 32
Section 9.6 Notation on or Exchange of Securities........................... 32
Section 9.7 Trustee Protected............................................... 32
ARTICLE X MISCELLANEOUS................................................... 32
Section 10.1 Trust Indenture Act Controls.................................... 32
Section 10.2 Notices......................................................... 33
Section 10.3 Communication by Holders with Other Holders..................... 33
Section 10.4 Certificate and Opinion as to Conditions Precedent.............. 33
Section 10.5 Statements Required in Certificate or Opinion................... 34
Section 10.6 Rules by Trustee and Agents..................................... 34
Section 10.7 Legal Holidays.................................................. 34
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Section 10.8 No Recourse Against Others....................................... 34
Section 10.9 Counterparts..................................................... 34
Section 10.10 Governing Laws................................................... 34
Section 10.11 No Adverse Interpretation of Other Agreements.................... 35
Section 10.12 Successors....................................................... 35
Section 10.13 Severability..................................................... 35
Section 10.14 Table of Contents, Headings, Etc................................. 35
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Reconciliation and tie between the Trust Indenture Act of 1939, as amended
and the Indenture, dated as of ____________ ___, 1999.
Trust Indenture Act Section Indenture Section
--------------------------- -----------------
(S)310(a)(1)................................................ 7.10
(a)(2)................................................. 7.10
(a)(3)................................................. Not Applicable
(a)(4)................................................. Not Applicable
(a)(5)................................................. 7.10
(b).................................................... 7.10
(S)311(a)................................................... 7.11
(b).................................................... 7.11
(c).................................................... Not Applicable
(S)312(a)................................................... 2.6
(b).................................................... 10.3
(c).................................................... 10.3
(S)313(a)................................................... 7.6
(b)(1)................................................. 7.6
(b)(2)................................................. 7.6
(c)(1)................................................. 7.6
(d).................................................... 7.6
(S)314(a)................................................... 10.5
(b).................................................... Not Applicable
(c)(1)................................................. 10.4
(c)(2)................................................. 10.4
(c)(3)................................................. Not Applicable
(d).................................................... Not Applicable
(e).................................................... 10.5
(f).................................................... Not Applicable
(S)315(a)................................................... 7.1
(b).................................................... 7.5
(c).................................................... 7.1
(d).................................................... 7.1
(e).................................................... 6.14
(S)316(a)................................................... 2.10
(a)(1)(A).............................................. 6.12
(a)(1)(B).............................................. 6.13
(b).................................................... 6.8
(S)317(a)(1)................................................ 6.3
(a)(2)................................................. 6.4
(b).................................................... 2.5
(S)318(a)................................................... 10.1
Note: This reconciliation and tie shall not, for any purposes, be deemed to be
part of this Indenture.
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Indenture
Indenture, dated as of ______ ___, 1998 (the "Indenture"), by and between
CNL American Properties Fund, Inc., a Maryland corporation (the "Company"), and
_____________, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Securities issued under this
Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person existing at the time
such Person becomes a Subsidiary of the Company, or is merged into or
consolidated with any Person, or which is assumed in connection with an Asset
Acquisition and not incurred in connection with or in contemplation or
anticipation of such event, provided that Indebtedness of such Person which is
redeemed, defeased (including the deposit of funds in a valid trust for the
exclusive benefit of holders and the trustee thereof, sufficient to repay such
Indebtedness in accordance with its terms), retired or otherwise repaid at the
time of or immediately upon consummation of the transactions by which such
Person becomes a Subsidiary or such Asset Acquisition shall not be Acquired
Indebtedness.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided that a beneficial owner of 10% or more of the total
Voting Stock of a Person, either directly or indirectly, shall for such purposes
be deemed to constitute control.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Asset Acquisition" means (i) an investment by the Company or any of its
Subsidiaries in any other Person pursuant to which such Person shall become a
Subsidiary or shall be merged or consolidated into or with the Company or any of
its Subsidiaries or (ii) an acquisition by the Company or any of its
Subsidiaries from any other Person that constitutes all or substantially all of
a division or line of business, or one or more real estate properties, of such
Person.
"Bankruptcy Law" means title 11 of the U.S. Code or any similar Federal or
State law for the relief of debtors.
"Board" means (i) with respect to any corporation, the board of directors
of such corporation or any committee of the board of directors of such
corporation authorized, with respect to any particular matter, to exercise the
power of the board of directors of such corporation, (ii) with respect to any
partnership, any partner (including, without limitation, in the case of any
partner that is a corporation, the board of directors of such corporation or any
authorized committee thereof) with the authority to cause the partnership to act
with respect to the matter at issue, (iii) in the case of a trust, any trustee
or board of trustees with the authority to cause the trust to act with respect
to the matter at issue, (iv) in the case of a limited liability company (an
"LLC"), the managing member, management committee or other Person or group with
the authority to cause the LLC to act with respect to the matter at issue, and
(v) with respect to any other entity, the Person or group exercising functions
similar to a board of directors of a corporation.
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"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary or equivalent authorized person of the Company to have
been duly adopted by the Board or pursuant to authorization by the Board and to
be in full force and effect on the date of the certificate (and delivered to the
Trustee, if appropriate).
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, or other equivalents (however designated, whether
voting or non-voting), including partnership interests, whether general or
limited, in the equity of such Person, whether outstanding on the Closing Date
or issued thereafter, including, without limitation, all Common Stock, Preferred
Stock and Units.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means, with respect to any Person, the
discounted present value of the rental obligations under a Capitalized Lease as
reflected on the balance sheet of such Person in accordance with GAAP.
"Closing Date" means _______, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting), which have no preference on liquidation or with respect
to distributions over any other class of Capital Stock, including partnership
interests, whether general or limited, of such Person's equity, whether
outstanding on the Closing Date or issued thereafter, including, without
limitation, all series and classes of common stock.
"Company" means CNL American Properties Fund, Inc., a Maryland corporation,
until a successor shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter means such successor.
"Company Order" means a written order signed in the name of the Company by
two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer, and delivered to
the Trustee.
"Company Request" means a written request signed in the name of the Company
by its Chairman of the Board, a President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated" or "consolidated" means, with respect to any Person, the
consolidation of the accounts of the Subsidiaries of such Person with those of
such Person; provided that (i) "consolidation" will not include consolidation of
the accounts of any other Person other than a Subsidiary of such Person with
such Person and (ii) "consolidation" will include consolidation of the accounts
of any Subsidiary, whether or not such consolidation would be required or
permitted under GAAP (it being understood that the accounts of such Person's
Subsidiaries shall be consolidated only to the extent of such Person's
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proportionate interest therein). The terms "consolidated" and "consolidating"
have correlative meanings to the foregoing.
"Corporate Trust Office" means the office of the Trustee at which any
particular time its corporate trust business shall be principally administered,
which office at the date of this Indenture is located at ____________.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Default" means any condition or event that is or after notice or passage
of time (other than with respect to payment or performance not due at the time
of determination) or both would be an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"FF&E" means furniture, fixtures and equipment, and other tangible personal
property.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Closing Date, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States of America.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered.
"Income Fund Mergers" means the merger of one or more of the Income Funds
into the Company or one or more of its Subsidiaries.
"Income Funds" mean, collectively, CNL Income Fund, Ltd., CNL Income Fund
II, Ltd., CNL Income Fund III, Ltd., CNL Income Fund IV, Ltd., CNL Income Fund
V, Ltd., CNL Income Fund VI, Ltd. CNL Income Fund VII, Ltd., CNL Income Fund
VIII, Ltd., CNL Income Fund IX, Ltd., CNL Income Fund X, Ltd., CNL Income Fund
XI, Ltd., CNL Income Fund XII, Ltd., CNL Income Fund XIII, Ltd., CNL Income Fund
XIV, Ltd., CNL Income Fund XV, Ltd., CNL Income Fund XVI, Ltd., CNL Income Fund
XVII, Ltd. and CNL Income Fund XVIII, Ltd.
"Incur" means, with respect to any Indebtedness, to incur (by conversion,
exchange or otherwise), create, issue, assume, Guarantee or otherwise become
liable for or with respect to (including as
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a result of an acquisition), or become responsible for, the payment of,
contingently or otherwise, such Indebtedness (including Acquired Indebtedness);
provided that neither the accrual of interest nor the accretion of original
issue discount shall be considered an Incurrence of Indebtedness.
"Indebtedness" of any Person means, without duplication, (i) all
liabilities and obligations, secured or unsecured, contingent or otherwise, of
such Person, (a) in respect of borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a portion
thereof), (b) evidenced by bonds, notes, debentures or similar instruments, (c)
representing the balance deferred and unpaid of the purchase price of any
property or services, except those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade creditors,
(d) evidenced by bankers' acceptances, (e) for the payment of money relating to
a Capitalized Lease Obligation, or (f) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(ii) all net obligations of such Person under Interest Swap and Hedging
Obligations; and (iii) all liabilities and obligations of others of the kind
described in the preceding clause (i) or (ii) that such Person has guaranteed or
that is otherwise its legal liability or which are secured by any assets or
property of such Person.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"Indenture Obligations" means all obligations arising under this Indenture,
from time to time, with respect to the payment of principal of or interest, if
any, on the Securities of any Series.
"Interest Payment Date" means, with respect to Securities of any Series,
the stated due date of an installment of interest on the Securities of that
Series.
"Interest Swap and Hedging Obligation" means any obligation of any Person
pursuant to any interest rate swaps, caps, collars and similar arrangements
providing protection against fluctuations in interest rates. For purposes of
this Indenture, the amount of such obligations shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of
such Person, based on the assumption that such obligation had terminated at the
end of such fiscal quarter, and in making such determination, if any agreement
relating to such obligation provides for the netting of amounts payable by and
to such Person thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the amount of
such obligations shall be the net amount so determined, plus any premium due
upon default by such Person.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien,
privilege, hypothecation, other encumbrance or charge of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any agreement to give any security interest) upon
or with respect to any property of any kind now owned or hereinafter acquired.
"Maturity" when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, notice of option to elect repayment or otherwise.
"Offering" means the offering of the Securities for sale by the Company.
"Officer" means the President, any Vice President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the Company.
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"Officers' Certificate" means a certificate signed on behalf of the Company
by any two Officers of the Company who must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of the Company.
"Operating Partnership" means CNL APF Partners, L.P., an indirect wholly-
owned limited partnership of the Company
"Opinion of Counsel" means a written opinion, in form and substance
reasonably satisfactory to the Trustee, of legal counsel who is acceptable to
the Trustee. The counsel may be an employee of or counsel to the Company.
"Parent" of any Person means a Person which at the date of determination
owns, directly or indirectly, a majority of the Voting Stock of such Person or
of a Parent of such Person.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, REIT,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated, whether
voting or non-voting), which have a preference on liquidation or with respect to
distributions over any other class of Capital Stock, including preferred
partnership interests, whether general or limited and whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all series and
classes of such Preferred Stock.
"real estate assets" means real property and all FF&E associated or used in
connection therewith.
"Record Date" means, with respect to Securities of any Series, the Record
Date specified in the Securities of that Series, whether or not such Record Date
is a Business Day.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to Article III of this
Indenture.
"Registration Statement" means the Company's registration statement on Form
S-4 (No. 333-_________), as amended, relating to the registration of, among
other securities, the Securities under the Securities Act, together with the
exhibits thereto and all subsequent amendments.
"REIT" means a real estate investment trust as defined in Section 856 of
the Code.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office with direct responsibility for the administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other
officer to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with a particular subject.
"Restaurant Property" means a restaurant property owned by an Income Fund
prior to the Company's acquisition of such Income Fund.
"SEC" means the Securities and Exchange Commission.
"Securities" means the notes of the Company of any Series authenticated and
delivered under this Indenture.
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"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Series" or "Series of Securities" means each series of notes of the
Company created pursuant to Section 2.1 and 2.2 hereof.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" of the Company within the meaning of Rule 1-02(w) of Regulation S-X
promulgated by the SEC as in effect as of the Closing Date.
"Stated Maturity" means (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"Subsidiary" means (i) a corporation, partnership, limited liability
company, trust, REIT or other entity a majority of the voting power of the
voting equity securities of which are owned, directly or indirectly, by the
Company or by one or more Subsidiaries of the Company, (ii) a partnership,
limited liability company, trust, REIT or other entity not treated as a
corporation for federal income tax purposes, a majority of the equity interests
of which are owned, directly or indirectly, by the Company or a Subsidiary of
the Company, or (iii) one or more corporations which, either individually or in
the aggregate, would be Significant Subsidiaries (as defined above, except that
the investment, asset and equity thresholds for purposes of this definition
shall be 5%), the majority of the value of the equity interests of which are
owned, directly or indirectly, by the Company or by one or more Subsidiaries.
"Tax" or "Taxes" means all Federal, state, local, and foreign taxes, and
other assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties applicable
thereto, imposed by any domestic or foreign governmental authority responsible
for the administration of any such taxes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-
77bbbb), as amended from time to time, and as in effect on the date of this
Indenture; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
"Total Assets" means the sum of (i) Undepreciated Real Estate Assets and
(ii) all other assets (excluding intangibles) of the Company and its
Subsidiaries determined on a consolidated basis.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.
"Undepreciated Real Estate Assets" means, as of any date, the cost (being
the original cost to the Company or any of its Subsidiaries plus capital
improvements) of real estate assets of the Company and its Subsidiaries on such
date, before depreciation and amortization of such real estate assets,
determined on a consolidated basis.
"Units" means the limited partnership units of the Operating Partnership.
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"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America and the payment of which is unconditionally guaranteed as a full faith
and credit obligation by The United States of America, and which in the case of
(i) and (ii) are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such subsidiary (other than
any director's qualifying shares or investments by individuals mandated by
applicable law) by such Person and/or one or more subsidiaries of such Person
which are Wholly Owned by such Person.
Section 1.2 Other Definitions.
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DEFINED IN
TERM SECTION
"Acceleration Notice"................................. 6.2
"Bankruptcy Law"...................................... 6.1
"Custodian"........................................... 6.1
"Event of Default".................................... 6.1
"Legal Holiday"....................................... 10.7
"Net Cash Proceeds"................................... 3.2
"Paying Agent"........................................ 2.4
"Redemption Price".................................... 3.1
"Registrar"........................................... 2.4
"Service Agent"....................................... 2.4
Section 1.3 Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA term used in this Indenture has the following meaning:
"obligor" on the Securities means the Company and any successor obligor
upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA and not
otherwise defined herein are used herein as so defined.
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Section 1.4 Rules of Construction.
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Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with GAAP;
(c) references to "GAAP" shall mean GAAP in effect as of the time when
and for the period as to which such accounting principles are to be
applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural include
the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.1 Issuable in Series; Form and Dating.
------------------------------------
The Securities may be issued in one or more Series, not to exceed 18
Series. All Securities within a Series and among Series shall be identical
except as may be set forth in a Board Resolution, a supplemental indenture or an
Officers' Certificate detailing the adoption of the terms thereof pursuant to
the authority granted under a Board Resolution.
The Securities, and the Trustee's certificate of authentication in respect
thereof, shall be substantially in the form of Exhibit A hereto, which Exhibit
is part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company shall
approve the form of the Securities and any notation, legend or endorsement on
them. Any such notations, legends or endorsements not contained in the form of
Security attached as Exhibit A hereto shall be delivered in writing to the
Trustee. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby. The Securities may be presented for registration of transfer and
exchange at the offices of the Registrar.
Section 2.2 Establishment of Terms of Series of Securities.
------------------------------------------------
At or prior to the issuance of any Securities within a Series, the
following shall be established by a Board Resolution, a supplemental indenture
or an Officers' Certificate pursuant to authority granted under a Board
Resolution:
(a) the title of the Series (which shall distinguish the Securities of
that particular Series from the Securities of any other Series); and
(b) the limit upon the aggregate principal amount of the Securities of
the Series which may be authenticated
-8-
and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu
of, other Securities of the Series pursuant to Section 2.7, 2.8, 2.11, 3.8
or 9.6).
Section 2.3 Execution and Authentication.
-----------------------------
Two Officers, each of which shall have been duly authorized by all
requisite corporate actions, shall sign, or one Officer shall sign and one
Officer shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by the manual signature
of the Trustee or an authenticating agent appointed by the Trustee. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the related
Board Resolution, supplemental indenture hereto or Officers' Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Such an authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
Section 2.4 Registrar and Paying Agent.
----------------------------
The Company shall maintain, with respect to each Series of Securities, an
office or agency in the Borough of Manhattan, The City of New York, where
Securities of a Series may be presented or surrendered for payment ("Paying
Agent"), where Securities of such Series may be surrendered for registration of
transfer or exchange ("Registrar"), and where notices and demands to or upon the
Company in respect of the Securities of such Series and this Indenture may be
served ("Service Agent"). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company will
give prompt written notice to the Trustee of the name and address, and any
change in the name or address, of each Registrar, Paying Agent or Service Agent.
If at any time the Company shall fail to maintain any such required Registrar,
Paying Agent or Service Agent or shall fail to furnish the Trustee with the name
and address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more co-registrars,
additional paying agents or additional service agents and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligations to
maintain a Registrar, Paying Agent and Service Agent as specified in this
Section 2.4. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the name or address of any
such co-registrar, additional paying agent or additional service agent. The term
"Registrar" includes any co-registrar; the term "Paying Agent" includes any
additional paying agent; and the term "Service Agent" includes any additional
service agent.
-9-
The Company hereby appoints the Trustee the initial Registrar, Paying Agent
and Service Agent for each Series unless another Registrar, Paying Agent or
Service Agent, as the case may be, is appointed prior to the time Securities of
that Series are first issued.
Section 2.5 Paying Agent to Hold Money in Trust.
-------------------------------------
The Company shall require each Paying Agent for any Series of Securities
other than the Trustee to agree in writing that the Paying Agent will hold in
trust, for the benefit of Securityholders of such Series of Securities, or the
Trustee, all money held by the Paying Agent for the payment of principal of or
interest on such Series of Securities, and will notify the Trustee of any
Default by the Company in making any such payment as specified in Section
6.1(a), (b) or (c). While any such Default continues and subsequent to the
occurrence of any Event of Default, the Trustee may require a Paying Agent to
pay all money held by it to the Trustee. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent (if other than the Company or a Subsidiary) shall
have no further liability for the money. If the Company or its Subsidiary acts
as Paying Agent, it shall segregate and hold in a separate trust fund for the
benefit of Securityholders of any Series of Securities all money, securities and
investments held by it as Paying Agent.
Section 2.6 Securityholder Lists.
----------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities and shall otherwise comply with TIA
(S) 312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least ten days before each interest payment date and at such
other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of
Securityholders of each Series of Securities.
Section 2.7 Transfer and Exchange.
-----------------------
Where Securities of a Series are presented to the Registrar or a co-
registrar with a request to register a transfer or to exchange them for an equal
principal amount of Securities of the same Series, the Registrar shall register
the transfer or make the exchange if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable by the Holder in
connection therewith (other than any such transfer tax or similar governmental
charge payable upon exchanges pursuant to Sections 2.11, 3.8 or 9.6).
Neither the Company nor the Registrar shall be required for the period
beginning at the opening of business fifteen Business Days immediately preceding
the mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing (a) to
issue, register the transfer of, or exchange Securities of any Series, or (b) to
register the transfer of or exchange Securities of any Series selected, called
or being called for redemption as a whole or the portion being redeemed of any
such Securities selected, called or being called for redemption in part.
Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities.
--------------------------------------------------
If any mutilated Security is surrendered to the Registrar or the Trustee,
the Company shall execute and issue and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same Series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
-10-
If there shall be delivered to the Company and the Trustee (i) evidence to
their reasonable satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall issue and execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay to the related Holder the Principal and
interest and any other obligations with respect to such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9 Outstanding Securities.
------------------------
The Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an Affiliate
of any thereof) holds, for the benefit of Holders, on the Maturity of Securities
of a Series, money or other sufficient investments sufficient to pay in full
such Securities payable on that date, then on and after that date such
Securities of the Series cease to be outstanding and interest on them ceases to
accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
Section 2.10 Treasury Securities.
---------------------
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a Series owned by the
Company or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that a Responsible Officer of the Trustee knows are so
owned shall be so disregarded.
-11-
Section 2.11 Temporary Securities.
---------------------
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities upon a Company Order.
Temporary Securities shall be substantially in the form of definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee upon request shall authenticate definitive Securities of the same Series
and date of maturity in exchange for temporary Securities. Until so exchanged,
temporary Securities shall have the same rights under this Indenture as the
definitive Securities.
Section 2.12 Cancellation.
--------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall dispose of
such canceled Securities (subject to the record retention requirement of the
Exchange Act) in accordance with its customary practices, unless the Company
otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted Interest.
--------------------
If the Company defaults in a payment of principal of or interest on a
Series of Securities, it shall pay interest on overdue principal and overdue
installments on interest, plus (to the extent permitted by law) any interest
payable on the defaulted interest, pursuant to Section 4.1 hereof, to the
Persons who are Securityholders of the Series on a subsequent special record
date, which date shall be at least five days prior to the last payment date. The
Company shall fix the record date and payment date. At least 30 days before the
record date, the Company shall mail to the Trustee and to each Securityholder of
the Series a notice that states the record date, the payment date and the amount
of interest to be paid. The Company may pay defaulted interest in any other
lawful manner.
Section 2.14 CUSIP Numbers.
---------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE III
REDEMPTION
Section 3.1 Optional Redemption.
-------------------
The Securities of any Series may be redeemed at any time at the option of
the Company, in whole or from time to time in part, at a redemption price equal
to the sum of the principal amount of the Securities being redeemed plus accrued
interest thereon (including, if applicable, default interest) to the Redemption
Date (the "Redemption Price").
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Section 3.2 Mandatory Redemption.
--------------------
In the event that the Company or any Subsidiary (a) sells or otherwise
disposes of any Restaurant Property and realizes net cash proceeds in excess of
(i) the amount required to repay mortgage Indebtedness (outstanding immediately
prior to the Income Fund Mergers) secured by such Restaurant Property or
otherwise required to be applied to the reduction of Indebtedness of the Company
or any of its Subsidiaries and (ii) the direct, out-of-pocket costs incurred by
the Company or any Subsidiary in connection with such sale or other disposition
computed without duplication or (b) refinances (whether at maturity or
otherwise) any Indebtedness secured by any Restaurant Property and realizes net
cash proceeds in excess of (i) the amount of Indebtedness secured by such
Restaurant Property at the time of the Income Fund Mergers, calculated prior to
any repayment or other reduction in the amount of such Indebtedness in the
Income Fund Mergers, and (ii) the direct, out-of-pocket costs incurred by the
Company or its subsidiary in connection with such refinancing computed without
duplication (in either case, the "Net Cash Proceeds"), the Company shall be
required within 90 days of the receipt of the total Net Cash Proceeds to redeem
at the Redemption Price an aggregate amount of principal (including accrued
interest) of the particular Series of the Securities which were issued to the
Persons who were partners of such Income Funds immediately prior to the Income
Fund Mergers equal to 80% of such Net Cash Proceeds.
Section 3.3 Notice to Trustee.
-----------------
If the Company elects to redeem Securities pursuant to Section 3.1 or is
required to redeem Securities or any part thereof pursuant to Section 3.2, it
shall notify the Trustee of the Redemption Date and the principal amount of the
Series of Securities to be redeemed. The Company shall give the notice at least
45 days before the Redemption Date (or such shorter notice as may be acceptable
to the Trustee). Any such notice may be canceled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 3.4 Selection of Securities to be Redeemed.
--------------------------------------
If less than all of the Securities in a Series are to be redeemed, the
Trustee shall select the Securities of the Series to be redeemed in any manner
that the Trustee deems fair and appropriate. The Trustee shall make the
selection from Securities of the Series outstanding not previously called for
redemption.
Section 3.5 Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed and
shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price;
(e) the principal amount of Securities of a Series to be redeemed;
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(f) that the notice is being sent pursuant to this Section 3.5 and
pursuant to either the optional or the mandatory redemption provisions of
Section 3.1 or 3.2, as the case may be;
(g) that, unless the Company defaults in making the redemption payments,
interest on Securities of the Series called for redemption ceases to accrue
on and after the Redemption Date;
(h) that, if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, on and after the
Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will
be issued upon cancellation of the original Security;
(i) that, if any Security contains a CUSIP number as provided in Section
2.14, no representation is being made as to the correctness of the CUSIP
number either as printed on the Security or as contained in the notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Security; and
(j) any other information as may be required by the terms of the
particular Series or the Securities of a Series being redeemed.
(k) At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.6 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed or published as provided in Section
3.5, Securities of a Series or the applicable part of such Securities, called
for redemption become due and payable on the Redemption Date and at the
Redemption Price. A notice of redemption may not be conditional. Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price plus accrued interest to the Redemption Date.
Section 3.7 Deposit of Redemption Price.
---------------------------
On or before 10:00 a.m., New York City time, on the Redemption Date, the
Company shall deposit with the Paying Agent money sufficient to pay the
Redemption Price of and accrued interest, if any, on all Securities to be
redeemed on that date. The Paying Agent shall promptly return to the Company any
money so deposited which is in excess of the amounts required therefor after
payment to the Holders of the Securities to be redeemed.
Section 3.8 Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Company shall
issue and the Trustee shall authenticate for the Holder a new Security of the
same Series and the same maturity equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
COVENANTS
The following covenants shall be applicable with respect to Securities of
any Series. For the purpose of Securities of any Series issued hereunder, when
used in this Article IV, the term "Securities" shall mean Securities of that
Series.
-14-
Section 4.1 Payment of Principal and Interest.
---------------------------------
The Company covenants and agrees for the benefit of the Holders of each
Series of Securities that it will duly and punctually pay the principal of and
interest on the Securities of that Series in accordance with the terms of such
Securities and this Indenture.
The Company shall pay interest on overdue principal and overdue interest on
the Securities of any Series, to the extent permitted by law, at the rate
specified in such Securities.
Section 4.2 Reports.
-------
The Company shall at all times comply with TIA (S) 3.14(a).
Section 4.3 Compliance Certificate.
----------------------
The Company shall deliver to the Trustee, within 120 days after the end of
its fiscal year, an Officers' Certificate complying with TIA (S) 314(a)(4).
Section 4.4 Corporate Existence.
-------------------
Subject to Article V, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence in
accordance with its organizational documents (as the same may be amended from
time to time) and the rights (charter and statutory) and franchises of the
Company; provided, however, that the Company shall not be required to preserve
any such right, franchise or existence if the Board shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries taken as a whole.
Section 4.5 Limitation on Incurrences of Indebtedness.
-----------------------------------------
(a) The Company will not, and will not permit any of its Subsidiaries
to, Incur any Indebtedness (including Acquired Indebtedness) other than
intercompany Indebtedness (representing Indebtedness to which the only
parties are the Company, the Operating Partnership and/or any of their
Subsidiaries, but only so long as such Indebtedness is held solely by any
of such parties) that is subordinate in right of payment to the Securities,
if immediately after giving effect to the Incurrence of such Indebtedness,
the aggregate principal amount of all outstanding Indebtedness of the
Company and its Subsidiaries on a consolidated basis, determined in
accordance with GAAP, is greater than 75% of the Company's Total Assets.
(b) For purposes of determining any particular amount of Indebtedness
under this Section 4.5, Guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included as additional
Indebtedness.
(c) Indebtedness of any Person that is not a Subsidiary of the Company,
which Indebtedness is outstanding at the time such Person becomes a
Subsidiary of the Company or is merged with or into or consolidated with
the Company or a Subsidiary of the Company, shall be deemed to have been
Incurred at the time such Person becomes a Subsidiary of the Company or is
merged with or into or consolidated with the Company, or a Subsidiary of
the Company, and Indebtedness which is assumed at the time of the
acquisition of any asset shall be deemed to have been Incurred at the time
of such acquisition.
-15-
Section 4.6 Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee and the Paying Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee and the Paying Agent, if different, with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 10.2.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Company shall give
prompt written notice to the Trustee and the Paying Agent, if different, of any
such designation or rescission and of any change in the location of any such
other office or agency. The Company hereby initially designates the corporate
trust office of the Paying Agent as such office.
ARTICLE V
SUCCESSORS
Section 5.1 When Company May Merge, Etc.
-----------------------------
The Company will not merge or consolidate with or into, or sell, lease,
convey, transfer or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions) to any Person or permit any
Person to merge or consolidate with or into the Company, unless:
(a) either the Company shall be the continuing Person or the Person (if
other than the Company) formed by such consolidation or into which the
Company is merged or that acquired such property and assets of the Company
shall be an entity organized and validly existing under the laws of the
United States of America or any state or jurisdiction thereof and shall
expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the obligations of the Company, on the Securities and
under this Indenture;
(b) immediately after giving effect, on a pro forma basis, to such
transaction, no Default or Event of Default shall have occurred and be
continuing; and
(c) the Company will have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that such
consolidation, merger or transfer and such supplemental indenture complies
with this provision and that all conditions precedent provided for herein
relating to such transaction have been complied with.
Section 5.2 Successor Person Substituted.
----------------------------
Upon any consolidation or merger or any transfer of all or substantially
all of the assets of the Company, in accordance with Section 5.1, the successor
Person formed by such consolidation or into which the Company is merged or to
which such transfer is made, shall succeed to, be substituted for, and may
exercise every right and power of the Company under this Indenture with the same
effect as if such
-16-
successor Person had been named therein as the Company and the Company shall be
released from the obligations under the Securities and this Indenture.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
Series, means any one of the following events:
(a) the failure by the Company to pay any installment of interest on the
Securities of that Series as and when the same becomes due and payable and
the continuance of any such failure for 15 days;
(b) the failure by the Company to pay all or any part of the principal
of the Securities of that Series when and as the same becomes due and
payable at maturity, redemption, by acceleration or otherwise;
(c) the failure by the Company to make any mandatory redemption pursuant
to the terms of and within the period specified in Section 3.2;
(d) the failure by the Company to observe or perform any other covenant
or agreement contained in the Securities of that series or this Indenture
with respect to that Series of Securities and the continuance of such
failure for a period of 30 days after written notice is given to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Securities of that Series
outstanding;
(e) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian or receiver
of it or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors;
(f) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property; or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries and the order or decree remains unstayed
and in effect for 60 days.
-17-
Section 6.2 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to the Securities of any Series at the
time outstanding occurs and is continuing (other than an Event of Default
specified in Section 6.1(e) or (f), above), then either the Trustee or the
Holders of 25% in aggregate principal amount of the Securities of that Series
then outstanding, by notice in writing to the Company (and to the Trustee if
given by Holders) (an "Acceleration Notice"), may declare all principal and
accrued interest thereon to be due and payable immediately.
If an Event of Default specified in Section 6.1(e) or (f) shall occur, the
principal amount (or specified amount) of and accrued and unpaid interest, if
any, on all outstanding Securities of that Series shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to any
Series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in this Article VI,
the Holders of a majority (or such greater amount if the Event of Default
resulting in such acceleration related to a Default in a provision of this
Indenture that may not be amended without the consent of a greater amount) in
principal amount of the outstanding Securities of that Series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient
to pay:
(i) all overdue interest, if any (including default interest), on
all Securities of that Series;
(ii) the principal of any Securities of that Series which have
become due (otherwise than by such declaration of acceleration) and
interest thereon at the rate or rates prescribed therefor in such
Securities; and
(iii) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 7.7; and
(b) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of and interest on Securities
of that Series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall effect any subsequent Default or impair any right
consequent thereon.
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
------------------------------------------------------
Trustee.
--------
The Company covenants that if:
(a) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days; or
(b) default is made in the payment of principal of any Security at the
Maturity thereof;
-18-
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 7.7.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs
and is continuing or if an acceleration has occurred, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such Series by such appropriate judicial proceedings as
the Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 6.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amounts due the Trustee under Section 7.7)
and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
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Section 6.5 Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 6.6 Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article VI shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the Trustee, the payment of all amounts due the Trustee
under Section 7.7; and
Second: To the Securityholders, the payment of the amounts then due
and unpaid for principal of and interest (including default
interest) on the Securities in respect of which or for the
benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and
interest, respectively; and
Third: To the Company.
Section 6.7 Limitation on Suits.
--------------------
Subject to Section 6.8 below, no Holder of any Security of any Series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
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(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8 Unconditional Right of Holders to Receive Principal and
-------------------------------------------------------
Interest.
---------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest, if any, on such Security on the Stated
Maturity or Stated Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
Section 6.9 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 6.10 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Default or Event of Default shall
impair any such right or remedy or constitute a waiver of any such Default or
Event of Default or an acquiescence therein. Every right and remedy given by
this Article VI or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 6.12 Control by Holders.
------------------
The Holders of a majority in principal amount of the outstanding Securities
of any Series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such Series, provided that:
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(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability or
be unduly prejudicial to Holders of Securities of such Series not joining
therein.
Section 6.13 Waiver of Past Defaults.
-----------------------
The Holders of a majority in aggregate principal amount of the outstanding
Securities of a Series may waive on behalf of all the Holders any Default with
respect to such Series and its consequences, except a Default with respect to
any provision requiring supermajority approval to amend, which Default may only
be waived by such a supermajority with respect to such Series, and except a
Default in the payment of principal of or interest on any Security of that
Series not yet cured or a Default with respect to any covenant or provision
which cannot be modified or amended without the consent of the Holder of each
outstanding Security of that Series affected, provided, however, that Holders of
a majority or a supermajority (as the case may be) in aggregate principal amount
of the Securities of any Series may rescind an acceleration and its consequences
including any payment default that resulted from such acceleration only pursuant
to Section 6.2 hereof. Upon any such waiver, such Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent thereon.
Section 6.14 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date).
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
-----------------
(a) If a Default has occurred and is continuing or an Event of Default
or acceleration has occurred and has not been properly waived or rescinded,
the Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
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(b) Except during the continuance of a Default and subsequent to an
Event of Default or acceleration that has occurred and that has not been
properly waived or rescinded:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others;
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the
case of any such Officers' Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such Officers'
Certificates and Opinions of Counsel to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section 7.1;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of
such Series.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) Subject to the provisions of this Article and the rest of this
Indenture relating to the duties of the Trustee, the Trustee will be under
no obligation to exercise any of its rights or powers under this Indenture
at the request, order or direction of any of the Holders, unless such
Holders have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which might be incurred by it in
compliance with such request, order or direction.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
(h) Unless an affiliate of the Company, the Paying Agent, the Registrar
and any authenticating agent shall be entitled to the protections,
immunities and standard of care as are set forth in paragraphs (a), (b) and
(c) of this Section and Section 7.2 with respect to the Trustee.
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(i) Whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officer's Certificate.
Section 7.2 Rights of Trustee.
-------------------
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which action or inaction it believes to be authorized or
within its rights or powers.
(e) The Trustee may consult with counsel and the advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(f) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit .
(g) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(h) The permissive rights of the Trustee to do things enumerated in this
Indenture shall not be construed as duties.
(i) The Trustee shall not be charged with knowledge of any Default or
Event of Default or of the identity of any Subsidiary unless either (i) a
Responsible Officer shall have actual knowledge thereof or (ii) the Trustee
shall have received written notice thereof from the Company or any Holder.
Section 7.3 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or an Affiliate
with the same rights it would have if it were not Trustee. Any Agent may do the
same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in this Indenture or
the Securities other than its certificate of authentication.
-24-
Section 7.5 Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing with respect to
the Securities of any Series and if it is known to a Responsible Officer of the
Trustee, the Trustee shall mail to each Securityholder of the Securities of that
Series notice of a Default or Event of Default within 60 days after it occurs
or, if later than the end of such 60-day period, after a Responsible Officer of
the Trustee has knowledge of such Default or Event of Default. Except in the
case of a Default or Event of Default in payment of principal of or interest on
any Security of any Series or a default in the observance or performance of any
of the obligations of the Company under Article V hereof, the Trustee may
withhold the notice if and so long as its corporate trust committee or a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Securityholders of that Series.
Section 7.6 Reports by Trustee to Holders.
-----------------------------
Within 60 days after May 15 in each year, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear on the register
kept by the Registrar, a brief report dated as of such May 15, in accordance
with, and to the extent required under, TIA (S) 313.
A copy of each report at the time of its mailing to Securityholders of any
Series shall be filed with the SEC and each stock exchange, if any, on which the
Securities of that Series are listed in accordance with TIA (S) 313(d). The
Company shall promptly notify the Trustee when Securities of any Series are
listed on any stock exchange.
Section 7.7 Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (including the cost of defending
itself) against any loss, liability or expense incurred by it (including in the
enforcement of this Section 7.7), except as set forth in the next paragraph,
arising out of or in connection with the acceptance or administration of this
trust or in the performance of its duties under this Indenture as Trustee or
Agent. The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and agents of the Trustee.
Notwithstanding the foregoing, the Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee or by any
officer, director, employee, shareholder or agent of the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities of any Series on all money or property
held or collected by the Trustee, except that which is held in trust to pay
principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
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The provisions of this Section 7.7 shall survive the resignation or removal
of the Trustee and the termination of this Indenture.
Section 7.8 Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign with respect to the Securities of one or more Series
by so notifying the Company. The Holders of a majority in principal amount of
the Securities of any Series may remove the Trustee with respect to that Series
by so notifying the Trustee and the Company. The Company may remove the Trustee
with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more
Series does not take office within 60 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee with respect to the Securities of any one or more Series
fails to comply with Section 7.10, any Securityholder of the applicable Series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the
retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company's obligations under Section
7.7 hereof shall continue for the benefit of the retiring trustee with respect
to expenses and liabilities incurred by it prior to such replacement.
Section 7.9 Successor Trustee by Merger, etc.
----------------------------------
If the Trustee consolidates with, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
subject to Section 7.10 hereof, the successor corporation without any further
act shall be the successor Trustee; provided such entity shall otherwise be
eligible under this Article VII.
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Section 7.10 Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the requirements
of TIA (S) 310(a)(1), (2) and (5). The Trustee shall always have a combined
capital and surplus of at least $100,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA (S)
310(b).
Section 7.11 Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
Section 7.12 Paying Agents.
-------------
The Company shall cause each Paying Agent other than the Trustee to execute
and deliver to it and the Trustee an instrument in which such agent shall agree
with the Trustee, subject to the provisions of this Section 7.12:
(a) that it will hold all sums held by it as agent for the payment of
principal of or interest on the Securities in trust for the benefit of the
Securityholders or the Trustee;
(b) that it will at any time during the continuance of an Event of
Default, upon written request of the Trustee, deliver to the Trustee all
sums held by it in trust together with a full accounting thereof; and
(c) that it will give the Trustee written notice within three (3)
Business Days of any failure by the Company to pay any installment of
Principal of or interest on the Securities when the same shall be due and
payable.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1) with respect to any Series
of Securities, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging such satisfaction and discharge of this
Indenture with respect to such Series, when:
(a) either:
(i) all Securities of such Series theretofore authenticated and
delivered (other than Securities of such Series that have been
destroyed, lost or stolen and that have been replaced or paid) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation:
(1) have become due and payable; or
(2) will become due and payable at their Stated Maturity
within one year; or
-27-
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company; or
(4) are deemed paid and discharged pursuant to Section 8.3,
as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited (in U.S. legal tender or U.S. Government Obligations or a
combination thereof) with the Trustee as trust funds in trust an amount
sufficient for the purpose of paying and discharging the entire Indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Sections 2.4, 2.7, 2.8, 2.11, 7.1, 8.1 8.2 and 8.5 shall survive.
Section 8.2 Application of Trust Funds; Indemnification.
-------------------------------------------
(a) Subject to the provisions of Section 8.5, all money and U.S.
Government Obligations deposited with the Trustee pursuant to Sections 8.1,
8.3 or 8.4 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Sections 8.1,
8.3 or 8.4, shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal and interest for whose payment such money has
been deposited with or received by the Trustee or to make analogous
payments as contemplated by Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or the interest
and principal received in respect of such obligations other than any tax,
fee or other charge payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Sections 8.1, 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited
for the purpose for which such U.S. Government Obligations or money were
deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this Indenture.
-28-
Section 8.3 Legal Defeasance of Securities of any Series.
--------------------------------------------
The Company shall be deemed to have paid and discharged the entire
Indebtedness on all the outstanding Securities of such Series on the 91st day
after the date of the deposit referred to below, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the same), except as
to:
(a) the rights of Holders of Securities of such Series to receive, from
the trust funds described below, payment of the principal of and each
installment of principal of and interest on the outstanding Securities of
such Series on the Stated Maturity of such principal or installment of
principal or interest on the day on which such payments are due and payable
in accordance with the terms of this Indenture and the Securities of such
Series;
(b) the provisions of Sections 2.5, 2.7, 2.8, 2.11, 4.6 and this Article
VIII; and
(c) the rights, powers, trust and immunities of the Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(i) the Company must irrevocably deposit with the Trustee, in
trust, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of the Securities of such Series,
(A) U.S. legal tender or U.S. Government Obligations, or any
combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered
to the Trustee, to pay the entire principal of and interest
(including default interest) on such Securities on the Maturity and
each payment date or on the Redemption Date of such principal or
installment of principal of or interest on Securities of such
Series in accordance with the terms of this Indenture and the
Securities;
(ii) the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to Trustee
confirming that (A) the Company has received from, or there has
been published by the Internal Revenue Service, a ruling or (B)
since the date of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion of counsel shall confirm that,
the Holders of the Securities of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such Legal Defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred;
(iii) no Default or Event of Default shall have occurred with
respect to such Series and be continuing on the date of such
deposit or insofar as Events of Default from bankruptcy or
insolvency events are concerned, at any time in the period ending
on the 91st day after the date of deposit;
(iv) such defeasance shall not result in a breach or violation of,
or constitute a default under this Indenture or any other material
agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
-29-
(v) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of such Securities over
any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the
Company or others; and
(vi) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the conditions precedent provided for have
been complied with.
Section 8.4 Covenant Defeasance.
-------------------
On and after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any term, provision
or condition set forth under Sections 4.2, 4.3, 4.4 and 4.5 and Article V (and
the failure to comply with any such covenants shall not constitute a Default or
Event of Default under Section 6.1) with respect to the Securities of such
Series, provided that the following conditions shall have been satisfied:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders of the Securities of such Series, (A) U.S. legal
tender or U.S. Government Obligations, or any combination thereof, in such
amounts as will be sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay the principal of and interest on
such Securities on the Maturity and each payment date or on the Redemption
Date of such principal or installment of principal of or interest on
Securities of such Series in accordance with the terms of this Indenture
and the Securities;
(b) the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States reasonably acceptable to such Trustee
confirming that the Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result
of the defeasance contemplated by this Section 8.4 and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred;
(c) no Default or Event of Default shall have occurred with respect to
such Series and be continuing on the date of such deposit or insofar as
Events of Default from bankruptcy or insolvency events are concerned, at
any time in the period ending on the 91st day after the date of deposit;
(d) such defeasance shall not result in a breach or violation of, or
constitute a default under this Indenture or any other material agreement
or instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound;
(e) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Securities of such Series over any
other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company or others; and
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the conditions precedent provided for have been
complied with.
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Section 8.5 Repayment to Company.
--------------------
The Trustee and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person.
Section 8.6 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article VIII by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article VIII until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with this
Article VIII; provided that if the Company has made any payment of interest on
or principal of any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS AND SUPPLEMENTS
Section 9.1 Without Consent of Holders.
--------------------------
The Company, when authorized by Board resolution, and the Trustee may amend
or supplement this Indenture or the Securities of one or more Series without the
consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in place
of certificated Securities;
(d) in reliance upon opinion of counsel, to make any change that does
not adversely affect the rights of any Securityholder;
(e) to provide for the issuance of and establish the form and terms and
conditions of Securities of any Series as permitted by this Indenture;
(f) to add to the covenants of the Company or to add Events of Default
for the benefit of Securityholders or to surrender any right or power
conferred upon the Company in this Indenture;
(g) to evidence and provide for the acceptance of appointment hereunder
by a successor Trustee with respect to the Securities of one or more Series
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee;
(h) to provide for guarantors or collateral for the Securities of any
Series; or
-31-
(i) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Section 9.2 With Consent of Holders.
-----------------------
Except as provided elsewhere in this Article IX, the Company, when
authorized by Board resolution, and the Trustee may enter into a supplemental
indenture with the written consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities of each Series affected
by such supplemental indenture (including consents obtained in connection with a
tender offer or exchange offer for the Securities of such Series) for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the Securityholders of each such Series.
Except as provided in Section 6.13, the Holders of at least a majority in
principal amount of the outstanding Securities of each Series affected by such
waiver by notice to the Trustee (including consents obtained in connection with
a tender offer or exchange offer for the Securities of such Series) may waive
compliance by the Company with any provision of this Indenture or the Securities
with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this Section 9.2 becomes effective, the Company shall mail to the Holders of
Securities affected thereby a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to mail or publish such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.3 Limitations.
-----------
Without the consent of each Securityholder affected, an amendment or waiver
may not:
(a) change the Stated Maturity of the principal of, or any installment
of interest on, any Security;
(b) reduce the principal amount of or interest (including any default
interest) on any Security;
(c) change the place of payment, or the coin or currency, for the
payment of principal of or interest on any Security;
(d) impair the right to institute suit for the enforcement of any
payment on or after the Stated Maturity (or, in the case of a redemption,
on or after the Redemption Date) of any Security;
(e) reduce the percentages of outstanding Securities the consent of
whose Holders is necessary to modify or amend this Indenture;
(f) waive a default in the payment of principal of or interest on the
Securities (except a recession of acceleration of the Securities of any
Series and a waiver of the payment default that resulted from such
acceleration pursuant to Section 6.2 hereof); or
(g) reduce the percentage or aggregate principal amount of outstanding
Securities of a Series the consent of whose Holders is necessary for waiver
of certain defaults in Section 6.8, 6.13 or this 9.3.
-32-
Section 9.4 Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to this Indenture or the Securities of one or more Series
shall be set forth in a supplemental indenture hereto that complies with the TIA
as then in effect.
Section 9.5 Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement or waiver becomes effective, a consent to it
by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his Security or portion of a Security if the Trustee receives
the notice of revocation before the date on which the Trustee receives an
Officers' Certificate certifying that the Holders of the requisite principal
amount of Securities of the applicable Series have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company, notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given (up to the time such consent becomes non-revocable in
accordance with such sentence), whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date unless the consent of the requisite
number of Holders has been obtained.
Any amendment or waiver once effective shall bind every Securityholder of
each Series affected by such amendment or waiver unless it is of the type
described in Section 9.3. In that case, the amendment or waiver shall bind each
Holder of a Security who has consented to it and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Holder's Security.
Section 9.6 Notation on or Exchange of Securities.
-------------------------------------
The Trustee shall place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated, upon the request
by the Trustee that the Holder of such Security of such Series deliver such
Security to the Trustee therefor. The Company in exchange for Securities of that
Series may issue and the Trustee shall authenticate upon request new Securities
of that Series that reflect the amendment or waiver. Any failure to make any
appropriate notation or to issue a new Security of that Series shall not affect
the validity of such amendment or waiver.
Section 9.7 Trustee Protected.
-----------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.1) shall be fully protected in relying upon,
an Opinion of Counsel complying with Section 10.4(b) and stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee shall sign all supplemental indentures, except that the
Trustee need not sign any supplemental indenture that adversely affects its
rights.
-33-
ARTICLE X
MISCELLANEOUS
Section 10.1 Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this Indenture
by the TIA, such required or deemed provision shall control.
Section 10.2 Notices.
-------
Any notice or communication by the Company or the Trustee to the other is
duly given if in writing and delivered in person or mailed by first-class mail:
if to the Company:
CNL American Properties Fund, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
if to the Trustee:
_______________
_______________
_______________
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by first-
class mail to his address shown on the register kept by the Registrar. Failure
to mail a notice or communication to a Securityholder of any Series or any
defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication is mailed or published in the manner provided
above, within the time prescribed, it shall be deemed duly given, whether or not
the Securityholder receives it, on the third day after the record date.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 10.3 Communication by Holders with Other Holders.
-------------------------------------------
Securityholders of any Series may communicate pursuant to TIA (S) 312(b)
with other Securityholders of that Series or any other Series with respect to
their rights under this Indenture or the Securities of that Series or all
Series. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA (S) 312(c).
-34-
Section 10.4 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 10.5 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA314 (S) (a)(4)) shall comply with the provisions of TIA (S)
314(e) and shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.6 Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
Section 10.7 Legal Holidays.
--------------
Unless otherwise provided by Board Resolution, Officers' Certificate or
supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue with respect to such payment
for the intervening period.
Section 10.8 No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of or interest on the
Securities or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture, or in the Securities or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator,
partner, stockholder, officer, director, employee or controlling Person of the
Company or any successor Person thereof, except as an obligor of the Securities
pursuant to this Indenture. Each Holder, by accepting the Securities, waives and
releases all such liability.
-35-
Section 10.9 Counterparts.
------------
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Section 10.10 Governing Laws.
---------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B). THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
Section 10.11 No Adverse Interpretation of Other Agreements.
----------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12 Successors.
-----------
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall bind
its successor.
Section 10.13 Severability.
-------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14 Table of Contents, Headings, Etc.
---------------------------------
The Table of Contents, Reconciliation between the TIA, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
-36-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
COMPANY
CNL AMERICAN PROPERTIES FUND, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
TRUSTEE
__________________________________
By: ______________________________
Name: ____________________________
Title: ___________________________
-37-
EXHIBIT A
______% SERIES ___ CALLABLE NOTE DUE 2006
CUSIP No. ___________
No. ___ [$_________]
CNL American Properties Fund, Inc., a Maryland corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________, or registered assigns, the principal sum of [$________],
on December 15, 2006. This Security is one of the ______% Series ___ Callable
Notes due 2006 referred to in such Indenture (hereinafter referred to
collectively as the "Securities.")
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security on the reverse
side, which will, for all purposes, have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated: ______ __, 1999
CNL AMERICAN PROPERTIES FUND, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Attest:
-------
By: ______________________________
Name: ____________________________
Title: _____________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein referred to
in the within-mentioned Indenture.
____________________________,
as Trustee
By: _________________________
Authorized Signatory
CNL AMERICAN PROPERTIES FUND, INC.
______% Series ___ Callable Note due 2006
Section 1 Interest.
--------
CNL American Properties Fund, Inc., a Maryland corporation (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate of ______% per annum from _________ __, 1999 until
maturity.
The Company will pay interest semi-annually on June 15 and December 15 of
each year (each, an "Interest Payment Date"), commencing June 15, 1999. Interest
on the Securities will accrue from the most recent date to which interest has
been paid or, if no interest has been paid on the Securities, from ___________
__, 1999. Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months.
Interest on overdue principal and, to the extent permitted by law, on
overdue installments of interest will accrue, until such principal and overdue
interest are paid or duly provided for, at the rate of ___% per annum.
Section 2 Method of Payment.
-----------------
The Company shall pay interest on the Securities to the Persons who are the
registered Holders at the close of business on the Record Date immediately
preceding the Interest Payment Date. Holders must surrender Securities to a
Paying Agent to collect principal payments. Principal of and interest on the
Securities will be payable in United States dollars at the office or agency of
the Company maintained for such purpose, in the Borough of Manhattan, The City
of New York or at the option of the Company, payment of interest may be made by
check mailed to the Holders of the Securities at the addresses set forth upon
the registry books of the Company.
Section 3 Paying Agent and Registrar.
--------------------------
Initially, ___________ will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
Section 4 Indenture.
---------
The Company issued the Securities under an Indenture, dated as of _______
__, 1999 (the "Indenture"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The Indenture is available for inspection at ____________ and copy may
obtained upon the written request of any Holder, at such holders sole cost and
expense, to such address and to the attention of ____________. The Securities
are limited in aggregate principal amount to $_______. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the TIA, as in effect on the date of the Indenture.
The Securities are subject to all such terms, and Holders of Securities are
referred to the Indenture and said Act for a statement of them. The Securities
are senior, general and unsecured obligations of the Company. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound by the
provisions of the Indenture and (b) authorizes and directs the Trustee on his
behalf to take such action as may be provided in the Indenture.
-1-
Section 5 Redemption.
----------
The Securities may be redeemed in whole or from time to time in part at any
time at the option of the Company, at a redemption price equal to the sum of the
principal amount of the Securities being redeemed plus accrued interest thereon
to the Redemption Date (the "Redemption Price").
In the event that the Company or any Subsidiary (a) sells or otherwise
disposes of any Restaurant Property or (b) refinances (whether at maturity or
otherwise) any Indebtedness secured by any Restaurant Property and, in either
case, realizes Net Cash Proceeds therefrom, the Company shall be required within
90 days of the receipt of the total of such Net Cash Proceeds to redeem at the
Redemption Price an aggregate amount of principal of the particular Series of
the Securities which were issued to the Persons who were partners of such Income
Fund prior to the Income Fund Mergers equal to 80% of such Net Cash Proceeds.
Any such redemption will comply with Article 3 of the Indenture.
Section 6 Notice of Redemption.
--------------------
Notice of redemption will be sent by first class mail, at least 30 days and
not more than 60 days prior to the Redemption Date to the Holder of each
Security to be redeemed at such Holder's last address as then shown upon the
registry books of the Registrar.
Except as set forth in the Indenture, from and after any Redemption Date,
if monies for the redemption of the Securities called for redemption shall have
been deposited with the Paying Agent on such Redemption Date, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price.
Section 7 Transfer and Exchange.
---------------------
A Holder may register the transfer of, or exchange Securities in accordance
with, the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities (a) selected for redemption
except the unredeemed portion of any Security being redeemed in part or (b) for
a period beginning 15 Business Days before the mailing of a notice of an offer
to repurchase or redemption and ending at the close of business on the day of
such mailing.
Section 8 Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner of it for
all purposes.
Section 9 Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee and the Paying Agent(s) will pay the money back to the
Company at its request. After that, all liability of the Trustee and such
Paying Agent(s) with respect to such money shall cease, and Holders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person.
-2-
Section 10 Discharge Prior to Redemption or Maturity.
-----------------------------------------
As set forth in the Indenture, if the Company irrevocably deposits with the
Trustee, in trust, for the benefit of the Holders, U.S. legal tender, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of and interest on such Securities on the
stated date for payment thereof or on the Redemption Date of such principal or
installment of principal of or interest on such Securities, the Company will be
discharged from certain provisions of the Indenture and the Securities
(including the covenant described in paragraph 12 below, but excluding its
obligation to pay the principal of and interest on the Securities). Upon
satisfaction of certain additional conditions set forth in the Indenture, the
Company may elect to have its obligations discharged with respect to outstanding
Securities.
Section 11 Amendment; Supplement; Waiver.
-----------------------------
The Company and the Trustee may amend the Indenture or enter into a
supplemental indenture without the consent of the Holders for certain limited
purposes including, among other things, to cure any ambiguity, defect or
inconsistency, or to make any other change that does not adversely affect the
rights of any Holder of a Security. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of each Series affected by such amendment or
supplement, and any existing Default or Event of Default with respect to a
Series or compliance with any provision with respect to a Series may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the outstanding Securities of such Series.
Section 12 Limitation on Incurrence of Indebtedness.
----------------------------------------
The Indenture imposes a limitation on the ability of the Company and any of
its Subsidiaries to incur additional Indebtedness. The limitation is subject to
certain qualifications and exceptions.
Section 13 Successor.
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When a successor assumes all the obligations of its predecessor under the
Securities and the Indenture, the predecessor will be released from those
obligations.
Section 14 Defaults and Remedies.
---------------------
If an Event of Default with respect to the Securities occurs and is
continuing (other than an Event of Default relating to bankruptcy, insolvency or
reorganization of the Company), then either the Trustee or the Holders of 25% in
aggregate principal amount of the Securities then outstanding may declare all
Securities to be due and payable immediately in the manner and with the effect
provided in the Indenture. Holders of Securities may not enforce the Indenture
or the Securities, except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power with respect to such Securities. The Trustee may withhold from Holders
of Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
Section 15 Trustee and Agent Dealings with Company.
---------------------------------------
The Trustee and each Agent under the Indenture, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company, any of its Subsidiaries or any of their respective Affiliates,
and may otherwise deal with such Persons as if it were not the Trustee or such
Agent.
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Section 16 No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of or interest on the
Securities or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in the Indenture, or in the Securities or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator,
partner, stockholder, officer, director, employee or controlling Person of the
Company or of any successor Person thereof, except as an obligor of the
Securities pursuant to the Indenture. Each Holder, by accepting the Securities,
waives and releases all such liability.
Section 17 Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Security.
Section 18 Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a Security
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
Section 19 CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
Section 20 Governing Law.
-------------
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
CNL AMERICAN PROPERTIES FUND, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
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[FORM OF ASSIGNMENT]
I or we assign this Security to
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
and irrevocably appoint ________________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Dated: _________________ Signed:
__________________________________________
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee*
--------------------
* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
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