EXHIBIT 4.1
HIGHWOODS/FORSYTH LIMITED PARTNERSHIP,
ISSUER
and
HIGHWOODS PROPERTIES, INC.,
GUARANTOR
to
FIRST UNION NATIONAL BANK OF NORTH CAROLINA,
TRUSTEE
---------------
INDENTURE
---------------
Dated as of December 1, 1996
Debt Securities
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture Section
ss.310(a)(1) 607
(a)(2) 607
(b) 608
ss.312(a) 701
(b) 702
(c) 702
ss.313(a) 703
(b)(2) 703
(c) 703
(d) 703
ss.314(a) 704
(c)(1) 102
(c)(2) 102
(e) 102
(f) 102
ss.315(b) 602
ss.316(a) (last sentence) 101
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
ss.317(a)(1) 503
(a)(2) 504
(b) 1003
ss.318(a) 108
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to
and including 317 are a part of and govern every qualified indenture,
whether or not physically contained herein.
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TABLE OF CONTENTS
Recitals ...............................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS...........................................................................2
Act ......................................................................................2
Additional Amounts.............................................................................2
Affiliate......................................................................................2
Annual Service Charge..........................................................................3
Authenticating Agent...........................................................................3
Authorized Newspaper...........................................................................3
Bearer Security................................................................................3
Board of Directors.............................................................................3
Board Resolution...............................................................................3
Business Day...................................................................................3
Code ......................................................................................3
Commission.....................................................................................3
Common Stock...................................................................................3
Consolidated Income Available for Debt Service.................................................4
Consolidated Net Income........................................................................4
Conversion Event...............................................................................4
Corporate Trust Office.........................................................................4
Corporation....................................................................................4
Coupon ......................................................................................4
Currency ......................................................................................4
CUSIP number...................................................................................4
Defaulted Interest.............................................................................4
Dollars or $...................................................................................4
ECU ......................................................................................5
European Monetary System.......................................................................5
European Union.................................................................................5
Event of Default...............................................................................5
Foreign Currency...............................................................................5
GAAP ......................................................................................5
General Partner................................................................................5
Government Obligations.........................................................................5
Guarantee......................................................................................5
Guaranteed Securities..........................................................................6
Guarantor......................................................................................6
Guarantor's Board of Directors.................................................................6
Guarantor's Board Resolution...................................................................6
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Guarantor's Officers' Certificate..............................................................6
Guarantor Request and Guarantor Order..........................................................6
Holder ......................................................................................6
Indebtedness...................................................................................6
Indenture......................................................................................7
Independent Public Accountants.................................................................7
Indexed Security...............................................................................7
Interest ......................................................................................7
Interest Payment Date..........................................................................7
Issuer ......................................................................................7
Issuer Request and Issuer Order................................................................7
Judgment Currency..............................................................................7
Legal Holiday..................................................................................7
Maturity ......................................................................................7
New York Banking Day...........................................................................8
Office or Agency...............................................................................8
Officers' Certificate..........................................................................8
Opinion of Counsel.............................................................................8
Original Issue Discount Security...............................................................8
Outstanding....................................................................................8
Paying Agent...................................................................................9
Permitted Indebtedness.........................................................................9
Person .....................................................................................10
Place of Payment..............................................................................10
Predecessor Security..........................................................................10
Redemption Date...............................................................................10
Redemption Price..............................................................................10
Registered Security...........................................................................10
Regular Record Date...........................................................................10
Required Currency.............................................................................10
Responsible Officer...........................................................................10
Security or Securities........................................................................10
Security Register and Security Registrar......................................................11
Special Record Date...........................................................................11
Stated Maturity...............................................................................11
Subsidiary....................................................................................11
Total Assets..................................................................................11
Total Unencumbered Assets.....................................................................11
Trust Indenture Act...........................................................................11
Trustee .....................................................................................11
Undepreciated Real Estate Assets..............................................................12
United States.................................................................................12
United States Alien...........................................................................12
Unsecured Debt................................................................................12
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U.S. Depository or Depository.................................................................12
Vice President................................................................................12
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.................................................12
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...............................................13
Section 104. ACTS OF HOLDERS......................................................................13
Section 105. NOTICES, ETC., TO TRUSTEE, ISSUER AND GUARANTOR......................................15
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER..............................................16
Section 107. LANGUAGE OF NOTICES..................................................................17
Section 108. CONFLICT WITH TRUST INDENTURE ACT....................................................17
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.............................................17
Section 110. SUCCESSORS AND ASSIGNS...............................................................17
Section 111. SEPARABILITY CLAUSE..................................................................17
Section 112. BENEFITS OF INDENTURE................................................................17
Section 113. GOVERNING LAW........................................................................17
Section 114. LEGAL HOLIDAYS.......................................................................18
Section 115. COUNTERPARTS.........................................................................18
Section 116. JUDGMENT CURRENCY....................................................................18
ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY......................................................................19
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION......................................19
Section 203. SECURITIES IN GLOBAL FORM............................................................20
ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.................................................20
Section 302. CURRENCY; DENOMINATIONS..............................................................25
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.......................................25
Section 304. TEMPORARY SECURITIES.................................................................27
Section 305. REGISTRATION, TRANSFER AND EXCHANGE..................................................27
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.....................................31
Section 307. PAYMENT OF INTEREST AND CERTAIN ADDITIONAL AMOUNTS; RIGHTS TO INTEREST
AND CERTAIN ADDITIONAL AMOUNTS PRESERVED.............................................32
Section 308. PERSONS DEEMED OWNERS................................................................34
Section 309. CANCELLATION.........................................................................35
Section 310. COMPUTATION OF INTEREST..............................................................35
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. SATISFACTION AND DISCHARGE...........................................................35
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Section 402. DEFEASANCE AND COVENANT DEFEASANCE...................................................37
Section 403. APPLICATION OF TRUST MONEY...........................................................42
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT....................................................................42
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT...................................45
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE......................46
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.....................................................47
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS..............................................................................48
Section 506. APPLICATION OF MONEY COLLECTED.......................................................48
Section 507. LIMITATIONS ON SUITS.................................................................48
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND ANY
PREMIUM, INTEREST AND ADDITIONAL AMOUNTS.............................................49
Section 509. RESTORATION OF RIGHTS AND REMEDIES...................................................49
Section 510. RIGHTS AND REMEDIES CUMULATIVE.......................................................49
Section 511. DELAY OR OMISSION NOT WAIVER.........................................................50
Section 512. CONTROL BY HOLDERS OF SECURITIES.....................................................50
Section 513. WAIVER OF PAST DEFAULTS..............................................................50
Section 514. WAIVER OF STAY OR EXTENSION LAWS.....................................................51
Section 515. UNDERTAKING FOR COSTS................................................................51
ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN RIGHTS OF TRUSTEE............................................................52
Section 602. NOTICE OF DEFAULTS...................................................................53
Section 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES...............................54
Section 604. MAY HOLD SECURITIES..................................................................54
Section 605. MONEY HELD IN TRUST..................................................................54
Section 606. COMPENSATION AND REIMBURSEMENT.......................................................54
Section 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY..............................................55
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR....................................55
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...............................................57
Section 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS..........................58
Section 611. APPOINTMENT OF AUTHENTICATING AGENT..................................................59
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
Section 701. ISSUER AND THE GUARANTOR TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS..........................................................................61
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Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS...............................61
Section 703. REPORTS BY TRUSTEE...................................................................61
Section 704. REPORTS BY ISSUER AND GUARANTOR......................................................62
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS..................................63
Section 802. SUCCESSOR PERSON SUBSTITUTED FOR ISSUER..............................................64
Section 803. GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS...............................64
Section 804. SUCCESSOR PERSON SUBSTITUTED FOR GUARANTOR...........................................65
Section 805. ASSUMPTION BY GUARANTOR..............................................................65
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS...................................65
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS......................................67
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.................................................68
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES....................................................68
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES...................................68
Section 906. CONFORMITY WITH TRUST INDENTURE ACT..................................................69
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, ANY PREMIUM, INTEREST AND ADDITIONAL AMOUNTS...................69
Section 1002. MAINTENANCE OF OFFICE OR AGENCY......................................................69
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST....................................71
Section 1004. ADDITIONAL AMOUNTS...................................................................72
Section 1005. MAINTENANCE OF PROPERTIES............................................................73
Section 1006. INSURANCE............................................................................73
Section 1007. EXISTENCE............................................................................73
Section 1008. WAIVER OF CERTAIN COVENANTS..........................................................73
Section 1009. ISSUER STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN DEFAULTS........................74
Section 1010. GUARANTOR STATEMENT AS TO COMPLIANCE; NOTICE OF CERTAIN DEFAULTS.....................74
Section 1011. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS............................................75
Section 1012. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS.............................................76
Section 1013. PAYMENT OF TAXES AND OTHER CLAIMS....................................................76
Section 1014. PROVISION OF FINANCIAL INFORMATION...................................................76
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.............................................................77
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE................................................77
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED....................................77
Section 1104. NOTICE OF REDEMPTION.................................................................78
Section 1105. DEPOSIT OF REDEMPTION PRICE..........................................................79
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE................................................80
Section 1107. SECURITIES REDEEMED IN PART..........................................................80
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.............................................................81
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES................................81
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND............................................82
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.............................................................82
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE.............................................................83
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED............................................83
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS...................................................83
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.................................................84
Section 1504. QUORUM; ACTION.......................................................................84
Section 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.............................................................................85
Section 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS......................................86
ARTICLE SIXTEEN
GUARANTEE
Section 1601. GUARANTEE............................................................................86
vii
INDENTURE, dated as of December 1, 1996 (the "Indenture"),
among HIGHWOODS/FORSYTH LIMITED PARTNERSHIP, a limited partnership duly
organized and existing under the laws of North Carolina (hereinafter called the
"Issuer"), having its principal executive office located at 0000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, HIGHWOODS PROPERTIES, INC., a
corporation duly organized and existing under the laws of Maryland (hereinafter
called the "Guarantor" or the "General Partner"), having its principal executive
office at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx Xxxxxxxx 00000, and
First Union National Bank of North Carolina (hereinafter called the "Trustee"),
having its Corporate Trust Office located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000.
RECITALS
The execution and delivery by the Issuer of this Indenture
to provide for the issuance from time to time of the Issuer's senior unsecured
debentures, notes or other evidences of Indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided, has been duly
authorized.
All things necessary to make this Indenture a valid
agreement of the Issuer, in accordance with its terms, have been done.
For value received, the execution and delivery by the
Guarantor of this Indenture to provide for the issuance of the Guarantee
provided for herein has been duly authorized. All things necessary to make this
Indenture a valid agreement of the Guarantor, in accordance with its terms, have
been done.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder that are required to
be part of this Indenture and, to the extent applicable, shall be governed by
such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Securities or of any series thereof and any Coupons (as herein defined) as
follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to
this Indenture or unless the context otherwise requires, for all purposes of
this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder"
and other words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example,
the phrase "A or B" means "A or B or both", not "either A or B but
not both").
Certain terms used principally in certain Articles hereof
are defined in those Articles.
"ACT", when used with respect to any Holders, has the
meaning specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are
required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Issuer in respect of certain taxes, assessments or
other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative to
the foregoing.
2
"ANNUAL SERVICE CHARGE" as of any date means the amount
which is expensed in any 12-month period for interest on Indebtedness.
"AUTHENTICATING AGENT" means any Person authorized by the
Trustee pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official
language of the place of publication or in the English language, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any day
that is a Business Day in the place of publication.
"BEARER SECURITY" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"BOARD OF DIRECTORS" means the board of directors of the
General Partner or any committee of that board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the General Partner to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, delivered to the Trustee.
"BUSINESS DAY", with respect to any Place of Payment or
other location, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day other than a Saturday, Sunday or other day on
which banking institutions in such Place of Payment or other location are
authorized or obligated by law, regulation or executive order to close.
"CODE" means the Internal Revenue Code of 1986, as amended,
together with its predecessor.
"COMMISSION" means the Securities and Exchange Commission,
as from time to time constituted, created under the Securities Exchange Act of
1934, as amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"COMMON STOCK" includes any stock of any class of the
General Partner which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the General Partner and which is not subject to redemption by the
General Partner.
3
"CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE" for any
period means Consolidated Net Income of the Issuer and its Subsidiaries (i) plus
amounts which have been deducted for (a) interest on Indebtedness of the Issuer
and its Subsidiaries, (b) provision for taxes of the Issuer and its Subsidiaries
based on income, (c) amortization of debt discount, (d) depreciation and
amortization, (e) the effect of any noncash charge resulting from a change in
accounting principles in determining Consolidated Net Income for such period,
(f) amortization of deferred charges, (g) provisions for or realized losses on
properties, and (h) charges for early extinguishment of debt, and (ii) less
amounts which have been included for gains on properties
"CONSOLIDATED NET INCOME" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"CONVERSION EVENT" means the cessation of use of (i) a
Foreign Currency both by the government of the country or the confederation
which issued such Foreign Currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the European
Union or (iii) any currency unit or composite currency other than the ECU for
the purposes for which it was established.
"CORPORATE TRUST OFFICE" means the principal corporate trust
office of the Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date of original execution
of this Indenture is located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000.
"CORPORATION" includes corporations and limited liability
companies and, except for purposes of Article Eight, associations, partnerships,
companies and business trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"CURRENCY", with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on or any
Additional Amounts with respect to any Security, means Dollars or the Foreign
Currency, as the case may be, in which such payment, deposit or other transfer
is required to be made by or pursuant to the terms hereof or such Security and,
with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof or such Security, means Dollars.
"CUSIP NUMBER" means the alphanumeric designation assigned
to a Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"DEFAULTED INTEREST" has the meaning specified in Section
307.
"DOLLARS" or "$" means a dollar or other equivalent unit of
legal tender for payment of public or private debts in the United States of
America.
4
"ECU" means the European Currency Units as defined and
revised from time to time by the Council of the European Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary
System established by the Resolution of December 5, 1978 of the Council of the
European Community.
"EUROPEAN UNION" means the European Community, the European
Coal and Steel Community and the European Atomic Energy Community.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"FOREIGN CURRENCY" means any currency, currency unit or
composite currency, including, without limitation, the ECU, issued by the
government of one or more countries other than the United States of America or
by any recognized confederation or association of such governments.
"GAAP" means such accounting principles as are generally
accepted in the United States of America as of the date or time of any
computation required hereunder.
"GENERAL PARTNER" means Highwoods Properties, Inc., as the
sole general partner of the Issuer.
"GOVERNMENT OBLIGATIONS" means securities which are (i)
direct obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such other government or governments, in each case where the timely
payment or payments thereunder are unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other government
or governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such 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 Government
Obligation or the specific payment of interest on or principal of or other
amount with respect to the Government Obligation evidenced by such depository
receipt.
"GUARANTEE" means the unconditional guarantee of the payment
of the principal of or any premium or interest on or any Additional Amounts with
respect to the Guaranteed Securities by the Guarantor, as more fully set forth
in Article Sixteen.
5
"GUARANTEED SECURITIES" means a series of Securities made
subject to a Guarantee (as set forth in Article Sixteen) pursuant to Section
301.
"GUARANTOR" means the Person named as the "Guarantor" in the
first paragraph of this instrument until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"GUARANTOR'S BOARD OF DIRECTORS" means the board of
directors of the Guarantor or any committee of that board duly authorized to act
generally or in any particular respect for the Guarantor hereunder.
"GUARANTOR'S BOARD RESOLUTION" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of the
Guarantor to have been duly adopted by the Guarantor's Board of Directors and to
be in full force and effect on the date of such certification, delivered to the
Trustee.
"GUARANTOR'S OFFICERS' CERTIFICATE" means a certificate
signed by the Chairman, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Guarantor, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
"GUARANTOR REQUEST" and "GUARANTOR ORDER" mean,
respectively, a written request or order signed in the name of the Guarantor by
the Chairman, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Guarantor,
and delivered to the Trustee.
"HOLDER", in the case of any Registered Security, means the
Person in whose name such Security is registered in the Security Register and,
in the case of any Bearer Security, means the bearer thereof and, in the case of
any Coupon, means the bearer thereof.
"INDEBTEDNESS" means any indebtedness, whether or not
contingent, in respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instruments, (ii) indebtedness secured by any mortgage,
pledge, lien, charge, encumbrance or any security interest existing on property,
(iii) the reimbursement obligations, contingent or otherwise, in connection with
any letters of credit actually issued or amounts representing the balance
deferred and unpaid of the purchase price of any property except any such
balance that constitutes an accrued expense or trade payable or (iv) any lease
of property as lessee which would be reflected on a consolidated balance sheet
as a capitalized lease in accordance with GAAP, in the case of items of
indebtedness under (i) through (iii) above to the extent that any such items
(other than letters of credit) would appear as a liability on a balance sheet in
accordance with GAAP, and also includes, to the extent not otherwise included,
any obligation to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person.
6
"INDENTURE" means this instrument as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and, with respect to
any Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"INDEPENDENT PUBLIC ACCOUNTANTS" means accountants or a firm
of accountants that, with respect to the Issuer and the Guarantor and any other
obligor under the Securities or the Coupons, are independent public accountants
within the meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the independent
public accountants regularly retained by the Issuer or the Guarantor or who may
be other independent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of any
legal matters relating to this Indenture or certificates required to be provided
hereunder.
"INDEXED SECURITY" means a Security the terms of which
provide that the principal amount thereof payable at Stated Maturity may be more
or less than the principal face amount thereof at original issuance.
"INTEREST", with respect to any Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
"INTEREST PAYMENT DATE", with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"ISSUER" means the Person named as the "Issuer" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor Person, and any other obligor upon the Securities.
"ISSUER REQUEST" and "ISSUER ORDER" mean, respectively, a
written request or order, as the case may be, signed in the name of the Issuer
by the Chairman of the Board of Directors, a Vice Chairman, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the General Partner acting in its capacity as the
general partner of the Issuer, and delivered to the Trustee.
"JUDGMENT CURRENCY" has the meaning specified in Section 116.
"LEGAL HOLIDAY" means a day that is not a Business Day.
"MATURITY", with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as provided in or pursuant to
7
this Indenture, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption or repurchase, notice of option to elect
repayment or otherwise, and includes the Redemption Date.
"NEW YORK BANKING DAY" has the meaning specified in Section
116.
"OFFICE" OR "AGENCY", with respect to any Securities, means
an office or agency of the Issuer or the Guarantor maintained or designated in a
Place of Payment for such Securities pursuant to Section 1002 or any other
office or agency of the Issuer maintained or designated for such Securities
pursuant to Section 1002 or, to the extent designated or required by Section
1002 in lieu of such office or agency, the Corporate Trust Office of the
Trustee.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board, a Vice Chairman, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the General Partner in its capacity as sole managing general
partner of the Issuer, that complies with the requirements of Section 314(e) of
the Trust Indenture Act and is delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be an employee of or counsel for the Issuer or the Guarantor, as the case
may be, or other counsel who shall be reasonably acceptable to the Trustee,
that, if required by the Trust Indenture Act, complies with the requirements of
Section 314(e) of the Trust Indenture Act.
"ORIGINAL ISSUE DISCOUNT SECURITY" means a Security issued
pursuant to this Indenture which provides for declaration of an amount less than
the principal face amount thereof to be due and payable upon acceleration
pursuant to Section 502.
"OUTSTANDING", when used with respect to any Securities,
means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the
Trustee or the Security Registrar or delivered to
the Trustee or the Security Registrar for
cancellation;
(b) any such Security for whose payment at the Maturity
thereof money in the necessary amount has been
theretofore deposited pursuant hereto (other than
pursuant to Section 402) with the Trustee or any
Paying Agent (other than the Issuer or the
Guarantor) in trust or set aside and segregated in
trust by the Issuer or the Guarantor (if the Issuer
shall act as its own, or authorize the Guarantor to
act as, Paying Agent) for the Holders of such
Securities and any Coupons appertaining thereto,
PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
8
(c) any such Security with respect to which the Issuer
or the Guarantor has effected defeasance pursuant
to the terms hereof, except to the extent provided
in Section 402; and
(d) any such Security which has been paid pursuant to
Section 306 or in exchange for or in lieu of which
other Securities have been authenticated and
delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof
satisfactory to it that such Security is held by a
bona fide purchaser in whose hands such Security is
a valid obligation of the Issuer.
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon a declaration of acceleration thereof
pursuant to Section 502 at the time of such determination, and (ii) the
principal amount of any Indexed Security that may be counted in making such
determination and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided in or pursuant to this Indenture, and (iii)
the principal amount of a Security denominated in a Foreign Currency shall be
the Dollar equivalent, determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (iv) Securities owned by the Issuer, the Guarantor or any other obligor upon
the Securities or any Affiliate of the Issuer, the Guarantor or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Issuer, the Guarantor or any other obligor upon the
Securities or any Coupons appertaining thereto or an Affiliate of the Issuer,
the Guarantor or such other obligor.
"PAYING AGENT" means any Person authorized by the Issuer to
pay the principal of, or any premium or interest on, or any Additional Amounts
with respect to, any Security or any Coupon on behalf of the Issuer.
"PERMITTED INDEBTEDNESS" means Indebtedness of the Issuer or
any Subsidiary owing to any Subsidiary or the Issuer; PROVIDED that any such
Indebtedness is made pursuant to an intercompany note and is subordinated in
right of payment to the Notes; PROVIDED FURTHER that any disposition, pledge or
transfer of any such Indebtedness to a Person (other than the Issuer or another
9
Subsidiary) shall be deemed to be an incurrence of such Indebtedness by the
Issuer or a Subsidiary, as th0e case may be, and not Permitted Indebtedness as
defined herein.
"PERSON" means any individual, Corporation, partnership,
joint venture, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", with respect to any Security, means the
place or places where the principal of, or any premium or interest on, or any
Additional Amounts with respect to such Security are payable as provided in or
pursuant to this Indenture or such Security.
"PREDECESSOR SECURITY" of any particular Security means
every previous Security evidencing all or a portion of the same Indebtedness as
that evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security or
any Security to which a mutilated, destroyed, lost or stolen Coupon appertains
shall be deemed to evidence the same Indebtedness as the lost, destroyed,
mutilated or stolen Security or the Security to which a mutilated, destroyed,
lost or stolen Coupon appertains.
"REDEMPTION DATE", with respect to any Security or portion
thereof to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture or such Security.
"REDEMPTION PRICE", with respect to any Security or portion
thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to this Indenture or such Security.
"REGISTERED SECURITY" means any Security established
pursuant to Section 201 which is registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any
Registered Security on any Interest Payment Date therefor means the date, if
any, specified in or pursuant to this Indenture or such Security as the "Regular
Record Date".
"REQUIRED CURRENCY" has the meaning specified in Section 116.
"RESPONSIBLE OFFICER" means any officer of the Trustee in
its Corporate Trust Office assigned by the Trustee to administer this Indenture
and also means, with respect to a particular corporate trust matter, any other
officer of the Trustee to whom such matter is referred because of his knowledge
of and familiarity with the particular subject.
"SECURITY" or "SECURITIES" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of Indebtedness, as the
case may be, authenticated and delivered under this Indenture; PROVIDED,
HOWEVER, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities", with respect to any such Person, shall mean
Securities
10
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on any Registered Security means a date fixed by the Trustee pursuant
to Section 307.
"STATED MATURITY", with respect to any Security or any
installment of principal thereof or interest thereon or any Additional Amounts
with respect thereto, means the date established by or pursuant to this
Indenture or such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is, or such Additional
Amounts are, due and payable.
"SUBSIDIARY" means a corporation, partnership or limited
liability company a majority of the outstanding voting stock, partnership
interests or membership interests, as the case may be, of which is owned or
controlled, directly or indirectly, by the Issuer or by one or more other
Subsidiaries of the Issuer. For the purposes of this definition, "voting stock"
means stock having voting power for the election of directors, general partners,
managers or trustees, as the case may be, whether at all times or only so long
as no senior class of stock has such voting power by reason of any contingency.
"TOTAL ASSETS" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with GAAP (but
excluding intangibles and accounts receivable).
"TOTAL UNENCUMBERED ASSETS" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an encumbrance and (ii) all
other assets of the Issuer and its Subsidiaries not subject to an encumbrance
determined in accordance with GAAP (but excluding intangibles and accounts
receivable).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939,
as amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"TRUSTEE" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; PROVIDED, HOWEVER, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
11
"UNDEPRECIATED REAL ESTATE ASSETS" means as of any date the
cost (original cost plus capital improvements) of real estate assets of the
Issuer and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"UNITED STATES", except as otherwise provided in or pursuant
to this Indenture or any Security, means the United States of America (including
the states thereof and the District of Columbia), its territories and
possessions and other areas subject to its jurisdiction.
"UNITED STATES ALIEN", except as otherwise provided in or
pursuant to this Indenture or any Security, means any Person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust,
or a foreign partnership one or more of the members of which is, for United
States Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"UNSECURED DEBT" means Indebtedness of the Issuer or any
Subsidiary which is not secured by any mortgage, lien, charge, pledge or
security interest of any kind upon any of the properties owned by the Issuer or
any of its Subsidiaries.
"U.S. DEPOSITORY" or "DEPOSITORY" means, with respect to any
Security issuable or issued in the form of one or more global Securities, the
Person designated as U.S. Depository or Depository by the Issuer in or pursuant
to this Indenture, which Person must be, to the extent required by applicable
law or regulation, a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"VICE PRESIDENT", when used with respect to a vice president
of the General Partner acting in its capacity as the sole managing general
partner of the Issuer, or with respect to the Guarantor or the Trustee, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "Vice President".
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided in this Indenture,
upon any application or request by the Issuer or the Guarantor to the Trustee to
take any action under any provision of this Indenture, the Issuer or the
Guarantor, as the case may be, shall furnish to the Trustee an Officers'
Certificate or a Guarantor's Officers' Certificate, as the case may be, stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents or any of them is
specifically required by any provision
12
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Issuer or
the Guarantor may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel, unless such officer knows, or in the exercise of reasonable
care should know, that the opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Issuer or the
Guarantor, as the case may be, stating that the information with respect to such
factual matters is in the possession of the Issuer or the Guarantor, as the case
may be, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need not,
be consolidated and form one instrument.
Section 104. ACTS OF HOLDERS.
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by or pursuant to this Indenture to be
given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing. If, but only if, Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Issuer and the Guarantor.
Such instrument or instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall be
13
sufficient for any purpose of this Indenture and (subject to Section 315 of the
Trust Indenture Act) conclusive in favor of the Trustee and the Issuer and the
Guarantor and any agent of the Trustee or the Issuer and the Guarantor, if made
in the manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or
pursuant to this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of
determining the Persons who are beneficial owners of interest in any permanent
global Security held by a U.S. Depository entitled under the procedures of such
U.S. Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other Act provided in or pursuant to this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other Act, whether or not such Holders remain Holders
after such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other Act shall be valid or effective if made, given
or taken more than 90 days after such record date.
(2) The fact and date of the execution by any Person of any
such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine; and the Trustee may in any instance require further proof
with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of
Registered Securities held by any Person, and the date of the commencement and
the date of the termination of holding the same, shall be proved by the Security
Register.
(4) The ownership, principal amount and serial numbers of
Bearer Securities held by any Person, and the date of the commencement and the
date of the termination of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Issuer
and the Guarantor, wherever situated, if such certificate shall be deemed by the
Issuer and the Trustee to be satisfactory, showing that at the date therein
mentioned such Person had on deposit with such depositary, or exhibited to it,
the Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee, the Guarantor and the Issuer may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is
14
produced to the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer Security
is no longer Outstanding. The ownership, principal amount and serial numbers of
Bearer Securities held by the Person so executing such instrument or writing and
the date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Issuer and the Trustee deem
sufficient.
(5) If the Issuer or the Guarantor shall solicit from the
Holders of any Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Issuer or the Guarantor, as
the case may be, may at its option (but is not obligated to), by Board
Resolution or Guarantor's Board Resolution, as the case may be, fix in advance a
record date for the determination of Holders of Registered Securities entitled
to give such request, demand, authorization, direction, notice, consent, waiver
or other Act. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed to be
Holders for the purpose of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders of Registered Securities shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than six
months after the record date.
(6) Any request, demand, authorization, direction, notice,
consent, waiver or other Act by the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, the Guarantor or the Issuer in reliance thereon,
whether or not notation of such Act is made upon such Security.
Section 105. NOTICES, ETC., TO TRUSTEE, ISSUER AND
GUARANTOR.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Guarantor or the Issuer
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, or
(2) the Issuer or the Guarantor by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class
postage prepaid, to the Issuer or the Guarantor, as the case may be,
addressed to the attention of its Treasurer at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the
Trustee by the Issuer or the Guarantor, as the case may be.
15
Section 106. NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided in or pursuant to
this Indenture, where this Indenture provides for notice to Holders of
Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper
in such city as the Issuer shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first
such publication to be not earlier than the earliest date and the
second such publication not later than the latest date prescribed for
the giving of such notice.
In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearers Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
16
Section 107. LANGUAGE OF NOTICES.
Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall be
in the English language, except that, if the Issuer or the Guarantor, as the
case may be, so elects, any published notice may be in an official language of
the country of publication.
Section 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with
any duties under any required provision of the Trust Indenture Act imposed
hereon by Section 318(c) thereof, such required provision shall control.
Section 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Issuer
shall bind its successors and assigns, whether so expressed or not. All
covenants and agreements in this Indenture by the Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture, any Security or any
Coupon 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 112. BENEFITS OF INDENTURE.
Nothing in this Indenture, any Security or any Coupon,
express or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder and the
Holders of Securities or Coupons, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 113. GOVERNING LAW.
This Indenture, the Securities and any Coupons shall be
governed by and construed in accordance with the laws of the State of New York
applicable to agreements made or instruments entered into and, in each case,
performed in said state.
17
Section 114. LEGAL HOLIDAYS.
Unless otherwise specified in or pursuant to this Indenture
or any Securities, in any case where any Interest Payment Date, Stated Maturity
or Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or exchangeable,
shall be a Legal Holiday at any Place of Payment, then (notwithstanding any
other provision of this Indenture, any Security or any Coupon other than a
provision in any Security or Coupon that specifically states that such provision
shall apply in lieu hereof) payment need not be made at such Place of Payment on
such date, and such Securities need not be converted or exchanged on such date
but such payment may be made, and such Securities may be converted or exchanged,
on the next succeeding day that is a Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity or Maturity or on such last day for conversion or exchange, and
no interest shall accrue on the amount payable on such date or at such time for
the period from and after such Interest Payment Date, Stated Maturity, Maturity
or last day for conversion or exchange, as the case may be, to the next
succeeding Business Day.
Section 115. COUNTERPARTS.
This Indenture may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 116. JUDGMENT CURRENCY.
The Issuer agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the
principal of, or premium or interest, if any, or Additional Amounts on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, "New York Banking
Day" means any day except a Legal Holiday in The City of New York.
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ARTICLE TWO
SECURITIES FORMS
Section 201. FORMS GENERALLY.
Each Registered Security, Bearer Security, Coupon and
temporary or permanent global Security issued pursuant to this Indenture shall
be in the form established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by or
pursuant to this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture
or any Securities, the Securities shall be issuable in registered form without
Coupons and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be
printed, lithographed or engraved or produced by any combination of these
methods on a steel engraved border or steel engraved borders or may be produced
in any other manner, all as determined by the officers of the Issuer executing
such Securities or Coupons, as evidenced by their execution of such Securities
or Coupons.
Section 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
as Trustee
By
Authorized Officer
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Section 203. SECURITIES IN GLOBAL FORM.
Unless otherwise provided in or pursuant to this Indenture
or any Securities, the Securities shall not be issuable in temporary or
permanent global form. If Securities of a series shall be issuable in global
form, any such Security may provide that it or any number of such Securities
shall represent the aggregate amount of all Outstanding Securities of such
series (or such lesser amount as is permitted by the terms thereof) from time to
time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities represented thereby may from time to time be increased or
reduced to reflect exchanges. Any endorsement of any Security in global form to
reflect the amount, or any increase or decrease in the amount, or changes in the
rights of Holders, of Outstanding Securities represented thereby shall be made
in such manner and by such Person or Persons as shall be specified therein or in
the Issuer Order to be delivered pursuant to Section 303 or 304 with respect
thereto. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Issuer Order. If an Issuer Order pursuant
to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Issuer with respect to a Security in global form shall be in
writing but need not be accompanied by or contained in an Officers' Certificate
and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless
otherwise specified in or pursuant to this Indenture or any Securities, payment
of principal of, any premium and interest on, and any Additional Amounts in
respect of, any Security in temporary or permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in the preceding paragraph, the Issuer, the Trustee and any agent of
the Issuer and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series.
20
With respect to any Securities to be authenticated and
delivered hereunder, there shall be established in or pursuant to a Board
Resolution and set forth in an Officers' Certificate, or established in one or
more indentures supplemental hereto,
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated 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 304, 305,
306, 905 or 1107);
(3) the percentage of the principal amount at which the
Securities of the series will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of maturity thereof;
(4) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities of
the series shall be payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such interest
shall accrue or the method by which such date or dates shall be
determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or the
method by which such date shall be determined, the person to whom
such interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360- day year of twelve
30-day months;
(6) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the
principal of (and premium, if any), interest, if any, on, and
Additional Amounts, if any, payable in respect of, Securities of the
series shall be payable, any Registered Securities of the series may
be surrendered for registration of transfer or exchange and notices
or demands to or upon the Issuer in respect of the Securities of the
series and this Indenture may be served;
(7) the period or periods within which, the price or prices
at which, the currency or currencies, currency unit or units or
composite currency or currencies in which, and other terms and
conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Issuer, if the Issuer is to
have the option;
(8) the obligation, if any, of the Issuer to redeem, repay
or purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency unit
or units or composite currency or
21
currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered
Securities of the series shall be issuable and, if other than
denominations of $5,000 and any integral multiple thereof, the
denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(10) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(12) if other than Dollars, the Foreign Currency or
Currencies in which payment of the principal of (and premium, if any)
or interest or Additional Amounts, if any, on the Securities of the
series shall be payable or in which the Securities of the series
shall be denominated;
(13) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more currencies, currency units, composite currencies,
commodities, equity indices or other indices), and the manner in
which such amounts shall be determined;
(14) whether the principal of (and premium, if any) or
interest or Additional Amounts, if any, on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange
rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be so payable;
(15) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(16) any deletions from, modifications of or additions to
the Events of Default or covenants of the Issuer with respect to
Securities of the series, whether or not such Events
22
of Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(17) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to
be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security, the
identity of the depositary for such series;
(18) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(19) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(20) if the Securities of such series are to be Guaranteed
Securities;
(21) if either or both of Section 402(2) relating to
defeasance or Section 402(3) relating to covenant defeasance shall
not be applicable to the Securities of such series or any provisions
in modification of, in addition to or in lieu of any of the
provisions of Article Four;
(22) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(23) whether and under what circumstances the Issuer will
pay Additional Amounts on the Securities of the series to any Holder
who is not a United States person (including any modification to the
definition of such term) in respect of any tax, assessment
23
or governmental charge and, if so, whether the Issuer will have the
option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(24) with respect to any Securities that provide for
optional redemption or prepayment upon the occurrence of certain
events (such as a change of control of the Issuer), (i) the possible
effects of such provisions on the market price of the Issuer's or the
General Partner's securities or in deterring certain mergers, tender
offers or other takeover attempts, and the intention of the Issuer to
comply with the requirements of Regulation 14E under the Exchange Act
and any other applicable securities laws in connection with such
provisions; (ii) whether the occurrence of the specified events may
give rise to cross-defaults on other indebtedness such that payment
on such Securities may be effectively subordinated; and (iii) the
existence of any limitation on the Issuer's financial or legal
ability to repurchase such Securities upon the occurrence of such an
event (or, if true, the lack of assurance that such a repurchase can
be effected) and the impact, if any, under the Indenture of such a
failure, including whether and under what circumstances such a
failure may constitute an Event of Default; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to Currency of payments due thereunder, denomination and the
rate of interest, or method of determining the rate of interest, if any,
Maturity, and the date from which interest, if any, shall accrue and except as
may otherwise be provided by the Issuer in or pursuant to the Board Resolution
and set forth in the Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of Securities. The terms of the
Securities of any series may provide, without limitation, that the Securities
shall be authenticated and delivered by the Trustee on original issue from time
to time upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental indenture.
All Securities of any one series need not be issued at the same time and, unless
otherwise so provided by the Issuer, a series may be reopened for issuances of
additional Securities of such series or to establish additional terms of such
series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
24
Section 302. CURRENCY; DENOMINATIONS.
Unless otherwise provided in or pursuant to this Indenture,
the principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Securities shall be executed on behalf of the Issuer by the
General Partner acting in its capacity as sole managing general partner of the
Issuer by the General Partner's Chairman of the Board, one of its Vice Chairmen,
its President, its Treasurer or one of its Vice Presidents under its corporate
seal reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. Coupons shall be executed on behalf of the Issuer by the General
Partner acting in its capacity as sole managing general partner of the Issuer by
the General Partner's Treasurer or any Assistant Treasurer. The signature of any
of these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities and any Coupons appertaining thereto bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the Issuer shall bind the Issuer, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities or Coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver Securities, together with any
Coupons appertaining thereto, executed by the Issuer, to the Trustee for
authentication and, provided that the Board Resolution and Officers' Certificate
or supplemental indenture or indentures with respect to such Securities referred
to in Section 301 and an Issuer Order for the authentication and delivery of
such Securities have been delivered to the Trustee, the Trustee in accordance
with the Issuer Order and subject to the provisions hereof and of such
Securities shall authenticate and deliver such Securities. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities and any Coupons appertaining thereto,
the Trustee shall be entitled to receive, and (subject to Sections 315(a)
through 315(d) of the Trust Indenture Act) shall be fully protected in relying
upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and
Coupons, if any, have been established in conformity with the
provisions of this Indenture;
25
(b) all conditions precedent to the authentication and
delivery of such Securities and Coupons, if any, appertaining
thereto, have been complied with and that such Securities, and
Coupons, when completed by appropriate insertions, executed and
attested by duly authorized officers of the Issuer, delivered by duly
authorized officers of the Issuer to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legally valid and binding obligations of the Issuer, enforceable
against the Issuer in accordance with their terms, except as
enforcement thereof may be subject to or limited by bankruptcy,
insolvency, reorganization, moratorium, arrangement, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally, and subject to general
principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law) and will entitle the Holders
thereof to the benefits of this Indenture, including the Guarantee;
such Opinion of Counsel need express no opinion as to the
availability of equitable remedies;
(c) all laws and requirements in respect of the execution
and delivery by the Issuer of such Securities and Coupons, if any,
have been complied with; and
(d) this Indenture has been qualified under the Trust
Indenture Act; and
(2) an Officers' Certificate and a Guarantor's Officers'
Certificate, in each case stating that, to the best knowledge of the Persons
executing such certificate, no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the Securities shall
have occurred and be continuing.
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such opinion
and certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Issuer that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to
cause an Authenticating Agent to authenticate any Securities if the issue of
such Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
26
No Security or Coupon appertaining thereto shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose,
unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 202 or 611 executed by or on
behalf of the Trustee or by the Authenticating Agent by the manual signature of
one of its authorized officers. Such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Except as permitted by Section 306 or
307, the Trustee shall not authenticate and deliver any Bearer Security unless
all Coupons appertaining thereto then matured have been detached and cancelled.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Issuer
may execute and deliver to the Trustee and, upon Issuer Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form or, if authorized in or pursuant to this
Indenture, in bearer form with one or more Coupons or without Coupons and with
such appropriate insertions, omissions, substitutions and other variations as
the officers of the Issuer executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. Such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form,
which shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Issuer shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities shall
be exchangeable for such definitive Securities upon surrender of such temporary
Securities at an Office or Agency for such Securities, without charge to any
Holder thereof. Upon surrender for cancellation of any one or more temporary
Securities (accompanied by any unmatured Coupons appertaining thereto), the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of authorized
denominations of the same series and containing identical terms and provisions;
PROVIDED, HOWEVER, that no definitive Bearer Security, except as provided in or
pursuant to this Indenture, shall be delivered in exchange for a temporary
Registered Security; and PROVIDED, FURTHER, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in or pursuant to this Indenture.
Unless otherwise provided in or pursuant to this Indenture with respect to a
temporary global Security, until so exchanged the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 305. REGISTRATION, TRANSFER AND EXCHANGE.
With respect to the Registered Securities of each series, if
any, the Issuer shall cause to be kept a register (each such register being
herein sometimes referred to as the "Security Register") at an Office or Agency
for such series in which, subject to such reasonable regulations as it may
27
prescribe, the Issuer or the Guarantor shall provide for the registration of the
Registered Securities of such series and of transfers of the Registered
Securities of such series. Such Office or Agency shall be the "Security
Registrar" for that series of Securities. Unless otherwise specified in or
pursuant to this Indenture or the Securities, the Trustee shall be the initial
Security Registrar for each series of Securities. The Issuer shall have the
right to remove and replace from time to time the Security Registrar for any
series of Securities; provided that no such removal or replacement shall be
effective until a successor Security Registrar with respect to such series of
Securities shall have been appointed by the Issuer and shall have accepted such
appointment by the Issuer. In the event that the Trustee shall not be or shall
cease to be Security Registrar with respect to a series of Securities, it shall
have the right to examine the Security Register for such series at all
reasonable times. There shall be only one Security Register for each series of
Securities.
Upon surrender for registration of transfer of any
Registered Security of any series at any Office or Agency for such series, the
Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series denominated as authorized in or pursuant to this
Indenture, of a like aggregate principal amount bearing a number not
contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations, and
of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at any Office or Agency for such series. Whenever any Registered
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect
to Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Issuer,
the Guarantor (if such Bearer Securities are Guaranteed Securities) and the
Trustee in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Issuer,
the Guarantor (if such Bearer Securities are Guaranteed Securities) and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Bearer Security shall surrender to any Paying Agent any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of
28
any series is surrendered at any such Office or Agency for such series in
exchange for a Registered Security of such series and like tenor after the close
of business at such Office or Agency on (i) any Regular Record Date and before
the opening of business at such Office or Agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of business
at such Office or Agency on the related date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the Coupon relating to such
Interest Payment Date or proposed date of payment, as the case may be (or, if
such Coupon is so surrendered with such Bearer Security, such Coupon shall be
returned to the Person so surrendering the Bearer Security), and interest or
Defaulted Interest, as the case may be, shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
Whenever any Securities are surrendered for exchange as
contemplated by the immediately preceding two paragraphs, the Issuer shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided
in or pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is not
appointed by the Issuer within 90 days of the date the Issuer is so informed in
writing, (ii) the Issuer executes and delivers to the Trustee an Issuer Order to
the effect that such global Security shall be so exchangeable, or (iii) an Event
of Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for definitive Securities as the result of an event described in
clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary
delay but in any event not later than the earliest date on which such interests
may be so exchanged, the Issuer shall deliver to the Trustee definitive
Securities in such form and denominations as are required by or pursuant to this
Indenture, and of the same series, containing identical terms and in aggregate
principal amount equal to the principal amount of such global Security, executed
by the Issuer. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Issuer
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S. Depository or such other Depository, as the case may be
(which instructions shall be in writing but need not be contained in or
accompanied by an Officers' Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Issuer Order with respect thereto to the
Trustee, as the Issuer's agent for such purpose, to be exchanged, in whole or in
part, for definitive Securities as described above without charge. The Trustee
shall authenticate and make available for delivery, in exchange for each portion
of such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same
29
series of authorized denominations and of like tenor as the portion of such
global Security to be exchanged, which (unless such Securities are not issuable
both as Bearer Securities and as Registered Securities, in which case the
definitive Securities exchanged for the global Security shall be issuable only
in the form in which the Securities are issuable, as provided in or pursuant to
this Indenture) shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof, but subject to the satisfaction of any certification or other
requirements to the issuance of Bearer Securities; provided, however, that no
such exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities of the same series to be redeemed and
ending on the relevant Redemption Date; and PROVIDED, FURTHER, that (unless
otherwise provided in or pursuant to this Indenture) no Bearer Security
delivered in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following any
such exchange in part, such global Security shall be returned by the Trustee to
such Depository or the U.S. Depository, as the case may be, or such other
Depository or U.S. Depository referred to above in accordance with the
instructions of the Issuer referred to above. If a Registered Security is issued
in exchange for any portion of a global Security after the close of business at
the Office or Agency for such Security where such exchange occurs on or after
(i) any Regular Record Date for such Security and before the opening of business
at such Office or Agency on the next Interest Payment Date, or (ii) any Special
Record Date for such Security and before the opening of business at such Office
or Agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, interest shall not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but shall be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such global Security shall be payable in
accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer and the
Guarantor, respectively, evidencing the same debt and entitling the Holders
thereof to the same benefits under this Indenture as the Securities surrendered
upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange or redemption shall (if so required by
the Issuer or the Security Registrar for such Security) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security Registrar for such Security duly executed by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange, or redemption of Securities, but the Issuer may require
payment of a sum sufficient to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this
Indenture, the Issuer shall not be required (i) to issue, register the transfer
of or exchange any Securities during a period beginning at the opening of
business 15 days before the day of the selection for redemption of Securities of
like tenor and the same series under Section 1103 and ending at the close of
business on the day of such
30
selection, or (ii) to register the transfer of or exchange any Registered
Security so selected for redemption in whole or in part, except in the case of
any Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except, to the
extent provided with respect to such Bearer Security, that such Bearer Security
may be exchanged for a Registered Security of like tenor and the same series,
provided that such Registered Security shall be immediately surrendered for
redemption with written instruction for payment consistent with the provisions
of this Indenture or (iv) to issue, register the transfer of or exchange any
Security which, in accordance with its terms, has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not to
be so repaid.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES.
If any mutilated Security or a Security with a mutilated
Coupon appertaining to it is surrendered to the Trustee, subject to the
provisions of this Section 306, the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
containing identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Issuer, the Guarantor (if the
Security is a Guaranteed Security) and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or Coupon, 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
Issuer, the Guarantor (if the Security is a Guaranteed Security) or the Trustee
that such Security or Coupon has been acquired by a bona fide purchaser, the
Issuer shall execute and, upon the Issuer's request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen Coupon appertains with all appurtenant Coupons not
destroyed, lost or stolen, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section
306, in case any mutilated, destroyed, lost or stolen Security or Coupon has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a new Security, pay such Security or Coupon; PROVIDED,
HOWEVER, that payment of principal of, any premium or interest on or any
Additional Amounts with respect to any Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an Office or Agency for
such Securities located outside the United States and, unless otherwise provided
in or pursuant to this Indenture, any interest on Bearer Securities and any
Additional Amounts with respect to such interest shall be payable only upon
presentation and surrender of the Coupons appertaining thereto.
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Upon the issuance of any new Security under this Section,
the Issuer 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, with any Coupons appertaining thereto
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
Coupon appertains shall constitute a separate obligation of the Issuer and the
Guarantor (if the Security is a Guaranteed Security), whether or not the
destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon 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 such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented
pursuant to this Indenture with respect to particular Securities or generally,
shall be 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 or Coupons.
Section 307. PAYMENT OF INTEREST AND CERTAIN
ADDITIONAL AMOUNTS; RIGHTS TO INTEREST AND
CERTAIN ADDITIONAL AMOUNTS PRESERVED.
Unless otherwise provided in or pursuant to this Indenture,
any interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, and are punctually paid or duly provided for,
on any Interest Payment Date shall be paid to the Person in whose name such
Security (or one or more Predecessor Securities) is registered as of the close
of business on the Regular Record Date for such interest. Unless otherwise
provided in or pursuant to this Indenture, in case a Bearer Security is
surrendered in exchange for a Registered Security after the close of business at
an Office or Agency for such Security on any Regular Record Date therefor and
before the opening of business at such Office or Agency on the next succeeding
Interest Payment Date therefor, such Bearer Security shall be surrendered
without the Coupon relating to such Interest Payment Date and interest shall not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable only to the
Holder of such Coupon when due in accordance with the provisions of this
Indenture.
Unless otherwise provided in or pursuant to this Indenture,
any interest on and any Additional Amounts with respect to any Registered
Security which shall be payable, but shall not be punctually paid or duly
provided for, on any Interest Payment Date for such Registered Security (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
thereof on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest may be paid by the Issuer or the Guarantor
(if the Registered Security is a Guaranteed Security), at its election in each
case, as provided in Clause (1) or (2) below:
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(1) The Issuer or the Guarantor (if the Registered Security
is a Guaranteed Security) may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Issuer or
the Guarantor (if the Registered Security is a Guaranteed Security)
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on such Registered Security and the date
of the proposed payment, and at the same time the Issuer or the
Guarantor (if the Registered Security is a Guaranteed Security), as
the case may be, shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when so deposited to be held in trust for the
benefit of the Person entitled to such Defaulted Interest as in this
Clause provided. Thereupon, the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Issuer or the Guarantor, as the case may be, of
such Special Record Date and, in the name and at the expense of the
Issuer or the Guarantor, as the case may be, shall cause notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to
the Holder of such Registered Security (or a Predecessor Security
thereof) at his address as it appears in the Security Register not
less than 10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the Issuer or
the Guarantor, as the case may be, cause a similar notice to be
published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but
such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Person in whose name such Registered Security
(or a Predecessor Security thereof) shall be registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer
Security is surrendered at the Office or Agency for such Security in
exchange for a Registered Security after the close of business at
such Office or Agency on any Special Record Date and before the
opening of business at such Office or Agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the Coupon relating to such Defaulted Interest
and Defaulted Interest shall not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange for
such Bearer Security, but shall be payable only to the Holder of such
Coupon when due in accordance with the provisions of this Indenture.
(2) The Issuer or the Guarantor (if the Security is a
Guaranteed Security) may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Issuer or the
33
Guarantor, as the case may be, to the Trustee of the proposed payment
pursuant to this Clause, such payment shall be deemed practicable by
the Trustee.
Unless otherwise provided in or pursuant to this Indenture
or the Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Issuer, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted, interest with respect to which
the Stated Maturity is after the date of conversion of such Registered Security
shall not be payable.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for
registration of transfer, the Issuer, the Guarantor (if the Registered Security
is a Guaranteed Security), the Trustee and any agent of the Issuer or the
Guarantor (if the Registered Security is a Guaranteed Security) or the Trustee
may treat the Person in whose name such Registered Security is registered in the
Security Register as the owner of such Registered Security for the purpose of
receiving payment of principal of, any premium and (subject to Sections 305 and
307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Issuer,
nor the Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the
Trustee shall be affected by notice to the contrary.
The Issuer, the Guarantor (if the Bearer Security is a
Guaranteed Security), the Trustee and any agent of the Issuer, the Guarantor (if
the Bearer Security is a Guaranteed Security) or the Trustee may treat the
bearer of any Bearer Security or the bearer of any Coupon as the absolute owner
of such Security or Coupon for the purpose of receiving payment thereof or on
account thereof and for all other purposes whatsoever, whether or not any
payment with respect to such Security or
34
Coupon shall be overdue, and neither the Issuer, nor the Guarantor, the Trustee
or any agent of the Issuer, the Guarantor or the Trustee shall be affected by
notice to the contrary.
No Holder of any beneficial interest in any global Security
held on its behalf by a Depository shall have any rights under this Indenture
with respect to such global Security, and such Depository may be treated by the
Issuer, the Trustee, and any agent of the Issuer, the Guarantor (if the global
Security is a Guaranteed Security) or the Trustee as the owner of such global
Security for all purposes whatsoever. None of the Issuer, the Guarantor (if the
global Security is a Guaranteed Security), the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. CANCELLATION.
All Securities and Coupons surrendered for payment,
redemption, registration of transfer, exchange or conversion or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee, and any such Securities and Coupons,
as well as Securities and Coupons surrendered directly to the Trustee for any
such purpose, shall be cancelled promptly by the Trustee. The Issuer or the
Guarantor (if the Security is a Guaranteed Security) may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Issuer or the Guarantor (if the Security is a
Guaranteed Security) may have acquired in any manner whatsoever, and all
Securities so delivered shall be cancelled promptly by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by or
pursuant to this Indenture. All cancelled Securities and Coupons held by the
Trustee shall be destroyed by the Trustee, unless by an Issuer Order or
Guarantor Order the Issuer or the Guarantor, as the case may be, directs their
return to it.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise provided in or pursuant to this
Indenture or in any Security, interest on the Securities shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. SATISFACTION AND DISCHARGE.
Upon the direction of the Issuer by an Issuer Order or of
the Guarantor by a Guarantor Order (if the applicable series of Securities is a
series of Guaranteed Securities), this Indenture shall cease to be of further
effect with respect to any series of Securities specified in such
35
Issuer Order or Guarantor Order and any Coupons appertaining thereto, and the
Trustee, on receipt of an Issuer Order or a Guarantor Order, at the expense of
the Issuer and the Guarantor, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore
authenticated and delivered and all Coupons appertaining thereto
(other than (i) Coupons appertaining to Bearer Securities of such
series surrendered in exchange for Registered Securities of such
series and maturing after such exchange whose surrender is not
required or has been waived as provided in Xxxxxxx 000, (xx)
Securities and Coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Xxxxxxx
000, (xxx) Coupons appertaining to Securities of such series called
for redemption and maturing after the relevant Redemption Date whose
surrender has been waived as provided in Section 1107, and (iv)
Securities and Coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust
by the Issuer and thereafter repaid to the Issuer or discharged from
such trust, as provided in Section 1003) have been delivered to the
Trustee for cancellation; or
(b) all Securities of such series and, in the case
of (i) or (ii) below, any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Issuer,
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 Issuer and the Guarantor (if the Securities
of such series are Guaranteed Securities),
and the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities), in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for such purpose, money in the Currency in which such
Securities are payable in an amount sufficient to pay and discharge
the entire indebtedness on such Securities and any Coupons
appertaining thereto not theretofore delivered to the Trustee for
cancellation, including the principal of, any premium and interest
on, and any Additional Amounts with respect to such Securities and
any Coupons appertaining thereto, to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Maturity thereof, as the case may be;
(2) the Issuer or the Guarantor (if the Securities of such
series are Guaranteed Securities) has paid or caused to be paid all
other sums payable hereunder by the Issuer and
36
the Guarantor with respect to the Outstanding Securities of such
series and any Coupons appertaining thereto; and
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel and the Guarantor has delivered
to the Trustee a Guarantor's Officers' Certificate (if the Securities
of such series are Guaranteed Securities), each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge, imposed on or assessed against the Government
Obligations deposited pursuant to this Section 401 or the principal or interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities and any
Coupons appertaining thereto.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of such series as to which it is Trustee and if the other
conditions thereto are met.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to any series of Securities, the obligations of the
Issuer and the Guarantor to the Trustee under Section 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the obligations of the Issuer and the Trustee with respect to the
Securities of such series under Sections 305, 306, 403, 1002 and 1003, with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 401(1)(b)),
and with respect to any rights to exchange such Securities into other securities
shall survive.
Section 402. DEFEASANCE AND COVENANT DEFEASANCE.
(1) Unless pursuant to Section 301 either or both of (i)
defeasance of the Securities of or within a series under clause (2) of this
Section 402 shall not be applicable with respect to the Securities of such
series or (ii) covenant defeasance of the Securities of or within a series under
clause (3) of this Section 402 shall not be applicable with respect to the
Securities of such series, then such provisions, together with the other
provisions of this Section 402 (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any Coupons appertaining thereto, and the
Issuer may at its option by Board Resolution, at any time, with respect to such
Securities and any Coupons appertaining thereto, elect to have Section 402(2) or
Section 402(3) be applied to such Outstanding Securities and any Coupons
appertaining thereto upon compliance with the conditions set forth below in this
Section 402.
37
(2) Upon the Issuer's exercise of the above option
applicable to this Section 402(2) with respect to any Securities of or within a
series, each of the Issuer and the Guarantor (if such Securities are Guaranteed
Securities) shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any Coupons appertaining thereto and
under the Guarantee in respect thereof (if applicable), respectively, on the
date the conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer and the Guarantor (if such Securities are Guaranteed Securities) shall be
deemed to have paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any Coupons appertaining thereto, and under the
Guarantee in respect thereof (if such Securities are Guaranteed Securities),
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto, and
under the Guarantee in respect thereof (if such Securities are Guaranteed
Securities), and this Indenture insofar as such Securities and any Coupons
appertaining thereto, and the Guarantee in respect thereof (if such Securities
are Guaranteed Securities), are concerned (and the Trustee, at the expense of
the Issuer and the Guarantor (if such Securities are Guaranteed Securities),
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and any
Coupons appertaining thereto to receive, solely from the trust fund described in
clause (4) of this Section 402 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and interest, if
any, on, and Additional Amounts, if any, with respect to, such Securities and
any Coupons appertaining thereto when such payments are due, and any rights of
such Holder to convert or exchange such Securities into other securities, (ii)
the obligations of the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1004 (but only to the extent
that the Additional Amounts payable with respect to such Securities exceed the
amount deposited in respect of such Additional Amounts pursuant to Section
402(4)(a) below), and with respect to any rights to exchange such Securities
into other securities, (iii) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (iv) this Section 402. The Issuer may exercise its
option under this Section 402(2) notwithstanding the prior exercise of its
option under clause (3) of this Section 402 with respect to such Securities and
any Coupons appertaining thereto.
(3) Upon the Issuer's exercise of the above option
applicable to this Section 402(3) with respect to any Securities of or within a
series, each of the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) shall be released from its obligations under Sections 1005, 1006,
1007, 1008, 1011, 1012, 1013 and 1014 and, to the extent specified pursuant to
Section 301, any other covenant applicable to such Securities, with respect to
such Outstanding Securities and any Coupons appertaining thereto, and the
Guarantee in respect thereof (if the Securities are Guaranteed Securities), on
and after the date the conditions set forth in clause (4) of this Section 402
are satisfied (hereinafter, "covenant defeasance"), and such Securities and any
Coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with any such
covenant, but
38
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any Coupons appertaining thereto, the Issuer and the
Guarantor (if applicable) may omit to comply with, and shall have no liability
in respect of, any term, condition or limitation set forth in any such Section
or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4) or 501(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and Coupons appertaining thereto and the
Guarantee in respect thereof (if the Securities are Guaranteed Securities) shall
be unaffected thereby.
(4) The following shall be the conditions to application of
clause (2) or (3) of this Section 402 to any Outstanding Securities of or within
a series and any Coupons appertaining thereto and the Guarantee (if the
Securities are Guaranteed Securities) in respect thereof:
(a) The Issuer or the Guarantor (if the Securities are
Guaranteed Securities) shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Section 402 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any Coupons appertaining thereto, (1)
an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable
to such Securities and Coupons appertaining thereto (determined on
the basis of the Currency in which such Securities and Coupons
appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of
principal of (and premium, if any) and interest, if any, on such
Securities and any Coupons appertaining thereto, money in an amount,
or (3) a combination thereof, in any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (y) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (z) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any Coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or
39
instrument to which the Issuer or the Guarantor (if the Securities
are Guaranteed Securities) is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit and, with respect to
defeasance only, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under clause (2) of this
Section 402, the Issuer or the Guarantor (if the Securities are
Guaranteed Securities) shall have delivered to the Trustee an Opinion
of Counsel stating that (i) the Issuer or the Guarantor (if the
Securities are Guaranteed Securities) has received from the Internal
Revenue Service a letter ruling, or there has been published by the
Internal Revenue Service a Revenue Ruling, or (ii) since the date of
execution 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 shall confirm that, the Holders of
such Outstanding Securities and any Coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as
a result of such 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 defeasance had not occurred.
(e) In the case of an election under clause (3) of this
Section 402, the Issuer or the Guarantor (if the Securities are
Guaranteed Securities) shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant 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 covenant defeasance had not occurred.
(f) The Issuer or the Guarantor (if the Securities are
Guaranteed Securities) shall have delivered to the Trustee an
Officers' Certificate (if applicable) or a Guarantor's Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance or covenant defeasance under
clause (2) or (3) of this Section 402 (as the case may be) have been
complied with.
(g) Notwithstanding any other provisions of this Section
402(4), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Issuer or the Guarantor (if
the Securities are Guaranteed Securities) in connection therewith
pursuant to Section 301.
(h) Such defeasance or covenant defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of the
Trust Indenture Act (assuming for the
40
purpose of this clause (h) that the Securities are in default within
the meaning of the Trust Indenture Act).
(i) The Issuer shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Issuer with the intent of preferring the Holders over any other
creditors of the Issuer or the Guarantor or with the intent of
defeating, hindering, delaying or defrauding any other creditors of
the Issuer, the Guarantor or others.
(j) Such defeasance or covenant defeasance shall not result
in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940, as
amended, unless such trust shall be registered under such Act or
exempt from registration thereunder.
(5) Subject to the provisions of the last paragraph of
Section 1003, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section
402 in respect of any Outstanding Securities of any series and any Coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any Coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent (including the Issuer acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities and any Coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest and Additional Amounts, if any, but
such money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified in or pursuant to this Indenture
or any Security, if, after a deposit referred to in Section 402(4)(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge, imposed on or assessed against the Government
Obligations deposited pursuant to this Section 402
41
or the principal or interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities and any Coupons appertaining thereto.
Anything in this Section 402 to the contrary
notwithstanding, the Trustee shall deliver or pay to the Issuer from time to
time upon Issuer Request, or the Guarantor, as the case may be, upon the
Guarantor Request, any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in clause (4) of this Section 402
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Section 402.
Section 403. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations deposited with the Trustee pursuant
to Section 401 or 402 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the Coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Issuer
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, interest and Additional Amounts for
whose payment such money has or Government Obligations have been deposited with
or received by the Trustee; but such money and Government Obligations need not
be segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture, Board Resolution or
Officers' Certificate establishing the terms of such Series pursuant to this
Indenture:
(1) default in the payment of any interest on or any
Additional Amounts payable in respect of any Security of such series when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
42
(2) default in the payment of the principal of or any
premium on any Security of such series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment when
and as due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities) in this Indenture or the Securities (other than a
covenant or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of a series of Securities
other than such series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to the
Issuer and the Guarantor (if the Securities of such series are Guaranteed
Securities) by the Trustee or to the Issuer, the Guarantor (if the Securities of
such series are Guaranteed Securities) and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) default under any evidence of recourse Indebtedness of
the Issuer or the Guarantor (if the Securities of such series are Guaranteed
Securities), or under any mortgage, indenture or other instrument of the Issuer
or the Guarantor (if the Securities of such series are Guaranteed Securities)
(including a default with respect to Securities of any series other than that
series) under which there may be issued or by which there may be secured any
recourse Indebtedness of the Issuer or the Guarantor (if the Securities of such
series are Guaranteed Securities) (or by any Subsidiary, the repayment of which
the Issuer has guaranteed or for which the Issuer is directly responsible or
liable as obligor or guarantor), whether such Indebtedness now exists or shall
hereafter be created, which default shall constitute a failure to pay an
aggregate principal amount exceeding $5,000,000 of such Indebtedness when due
and payable after the expiration of any applicable grace period with respect
thereto and shall have resulted in such Indebtedness in an aggregate principal
amount exceeding $5,000,000 becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable, without such
Indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Issuer or the Guarantor, as the case may
be, by the Trustee or to the Issuer or the Guarantor, as the case may be, and
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
and requiring the Issuer or the Guarantor, as the case may be, to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Issuer,
the Guarantor (if the Securities of such series are Guaranteed
Securities) or any "significant subsidiary" of the Issuer or the
Guarantor in Article 1, Section 1-02 of Regulation S-X under the
Securities Act
43
of 1933, as amended ("Significant Subsidiary") in an involuntary
proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Issuer, the Guarantor
(if the Securities of such series are Guaranteed Securities) or any
Significant Subsidiary to be insolvent, or approving a petition
seeking reorganization, arrangement, adjustment or composition of the
Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary and such decree
or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of
the Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary or of any
substantial part of the property of the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any
Significant Subsidiary, as the case may be, or ordering the winding
up or liquidation of the affairs of the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any
Significant Subsidiary; or
(7) the commencement by the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any Significant
Subsidiary of a voluntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Issuer, the Guarantor
(if the Securities of such series are Guaranteed Securities) or any Significant
Subsidiary to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any insolvency proceedings against it, or
the filing by the Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary of a petition or answer or
consent seeking reorganization or relief under any applicable law, or the
consent by the Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee or similar official of the Issuer, the Guarantor
(if the Securities of such series are Guaranteed Securities) or any Significant
Subsidiary or any substantial part of the property of the Issuer, the Guarantor
(if the Securities of such series are Guaranteed Securities) or any Significant
Subsidiary or the making by the Issuer, the Guarantor (if the Securities of such
series are Guaranteed Securities) or any Significant Subsidiary of an assignment
for the benefit of creditors, or the taking of corporate action by the Issuer,
the Guarantor (if the Securities of such series are Guaranteed Securities) or
any Significant Subsidiary in furtherance of any such action; or
(8) any other Event of Default provided in or pursuant to
this Indenture with respect to Securities of such series.
44
Section 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT.
If an Event of Default with respect to Securities of any
series at the time Outstanding (other than an Event of Default specified in
clause (6) or (7) of Section 501) occurs and is continuing, then the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
such series, or such lesser amount as may be provided for in the Securities of
such series, to be due and payable immediately, by a notice in writing to the
Issuer and the Guarantor (if the Securities are Guaranteed Securities) (and to
the Trustee if given by the Holders), and upon any such declaration such
principal or such lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (6) or (7) of
Section 501 occurs, all unpaid principal of and accrued interest on the
Outstanding Securities of that series (or such lesser amount as may be provided
for in the Securities of such 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 of any Security of that series.
At any time after Securities of any series have been
accelerated and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of not less than a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Issuer, the Guarantor (if
the Securities are Guaranteed Securities) and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Issuer or the Guarantor (if the Securities are
Guaranteed Securities) has paid or deposited with the Trustee a sum of money
sufficient to pay
(a) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining thereto,
(b) the principal of and any premium on any Securities of
such series which have become due otherwise than by such declaration
of acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities,
(c) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments of
any interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
(d) 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 all other amounts due the
Trustee under Section 606; and
45
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and interest
on, and any Additional Amounts with respect to Securities of such series which
shall have become due solely by such declaration of acceleration, shall have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.
The Issuer covenants and the Guarantor (if the Securities
are Guaranteed Securities) covenants, in each case, that if
(1) default is made in the payment of any installment of
interest on or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have become
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or
any premium on any Security at its Maturity,
the Issuer or the Guarantor (if the Securities are Guaranteed Securities), as
the case may be shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money 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 all other
amounts due to the Trustee under Section 606.
If the Issuer or the Guarantor (if the Securities are
Guaranteed Securities) fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the money so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) or any other obligor upon such Securities and any Coupons
appertaining thereto and collect the monies adjudged or decreed to be payable in
the manner provided by law out of the property of the Issuer or the Guarantor
(if the Securities are Guaranteed Securities) or any other obligor upon such
Securities and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights
46
of the Holders of Securities of such series and any Coupons appertaining thereto
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or such Securities or
in aid of the exercise of any power granted herein or therein, or to enforce any
other proper remedy.
Section 504. 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 Issuer, the Guarantor (if the
Securities are Guaranteed Securities) or any other obligor upon the Securities
or the property of the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) or 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 Issuer or the Guarantor (if the
Securities are Guaranteed Securities) for the payment of any overdue principal,
premium, interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such
series, of the principal and any premium, interest and Additional
Amounts owing and unpaid in respect of the Securities and any Coupons
appertaining thereto and to file such other papers or documents and
take such other actions 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 or counsel and all other amounts due under
Section 606) and of the Holders of Securities or any Coupons allowed
in such judicial proceeding, and
(2) to collect and receive any monies 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 of Securities or any Coupons 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 of Securities or any Coupons, to pay to the Trustee any
amount due to 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 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or any Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding.
47
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or any
of the Securities or Coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or Coupons 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 or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon in respect of which such judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article
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 any premium, interest or Additional Amounts, upon presentation of the
Securities or Coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and any Coupons for principal and any premium,
interest and Additional Amounts 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 aggregate
amounts due and payable on such Securities and Coupons for principal
and any premium, interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons
entitled thereto.
Section 507. LIMITATIONS ON SUITS.
No Holder of any Security of any series or any Coupons
appertaining thereto 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
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such 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;
48
(3) 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;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) 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 such
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 or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other 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 508. UNCONDITIONAL RIGHT OF HOLDERS TO
RECEIVE PRINCIPAL AND ANY PREMIUM, INTEREST
AND ADDITIONAL AMOUNTS.
Notwithstanding any other provision in this Indenture, the
Holder of any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or a Coupon 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 the Issuer, the Guarantor (if the Security is a Guaranteed Security),
the Trustee and each such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and each such
Holder shall continue as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security
49
or a Coupon is intended to be exclusive of any other right or remedy, and every
right and remedy, to the extent permitted by law, shall 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, to the extent permitted by
law, prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Security or Coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to any Holder of a Security or a Coupon
may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by such Holder, as the case may be.
Section 512. CONTROL BY HOLDERS OF SECURITIES.
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 and any Coupons appertaining thereto, provided
that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of any series and
would not subject the Trustee to personal liability,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights
of the other Holders of Securities of such series not joining in such
action.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security
of such series or any Coupons appertaining thereto, or
50
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. WAIVER OF STAY OR EXTENSION LAWS.
The Issuer covenants and the Guarantor covenants, in each
case, that (to the extent that it may lawfully do so) it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer and the Guarantor each expressly waives (to the extent
that it may lawfully do so) all benefit or advantage of any such law and
covenants that it will not hinder, delay or impede the execution of any power
herein granted to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 515. 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 or omitted by it as Trustee, the filing by any party litigant in
such suit of any 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 515 shall not apply 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 Outstanding Securities of any
series, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest, if any, on or
Additional Amounts, if any, with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date, and, in the case of repayment, on
or after the date for repayment) or for the enforcement of the right, if any, to
convert or exchange any Security into Common Stock or other securities in
accordance with its terms.
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ARTICLE SIX
THE TRUSTEE
Section 601. CERTAIN RIGHTS OF TRUSTEE.
Subject to Sections 315(a) through 315(d) of the Trust
Indenture Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein
shall be sufficiently evidenced by an Issuer Request or an Issuer
Order or of the Guarantor mentioned herein shall be sufficiently
evidenced by a Guarantor Request or Guarantor Order (in each case,
other than delivery of any Security, together with any Coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution or by the Guarantor's
Board of Directors may be sufficiently evidenced by a Guarantor's
Board Resolution;
(3) 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 shall be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate or, if such matter pertains
to the Guarantor, a Guarantor's Officers' Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of
any series or any Coupons appertaining thereto pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts
52
or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to
examine, during business hours and upon reasonable notice, the books,
records and premises of the Issuer and the Guarantor, personally or
by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) subject to the provisions of Section 602 hereof and
Sections 315(a) through 315(d) of the Trust Indenture Act, the
Trustee shall not be charged with knowledge of any Event of Default
described in Section 501(4), (5), (6), (7) or (8) hereof unless a
Responsible Officer of the Trustee shall have actual knowledge of
such Event of Default.
(9) 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 and the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 512 hereof.
Section 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by mail
to all Holders of Securities of such series entitled to receive reports pursuant
to Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund or purchase
fund installment with respect to, any Security of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the best interest of the Holders of Securities
and Coupons of such series; and PROVIDED, FURTHER, that in the case of any
default of the character specified in Section 501(8) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof. For the purpose of this Section, the term
"DEFAULT" means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
53
Section 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE
OF SECURITIES.
The statements of the Issuer or the Guarantor (if the
Securities are Guaranteed Securities) in the Indenture, including the recitals
contained herein or in any document issued in connection with the sale of the
Securities or in the Securities, except the Trustee's certificate of
authentication, or in any Coupons shall be taken as the statements of the Issuer
or the Guarantor (if the Securities are Guaranteed Securities), as the case may
be, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee shall not be responsible for
and makes no representations as to the validity or sufficiency of this Indenture
or of the Securities or the Coupons, except that the Trustee represents that it
is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by
it in a Statement of Eligibility and Qualification on Form T-1 supplied to the
Issuer are true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Issuer of the Securities or the proceeds thereof.
Section 604. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other Person that may be an agent of the Trustee or
the Guarantor or the Issuer, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Issuer or the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other Person.
Section 605. MONEY HELD IN TRUST.
Except as provided in Section 403 and Section 1003, money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law and shall be held uninvested. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Issuer or the Guarantor.
Section 606. COMPENSATION AND REIMBURSEMENT.
The Issuer and the Guarantor jointly and severally agree:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any
54
such expense, disbursement or advance as may be attributable to the
Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold
them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including reasonable (but not more than actual)
attorney's fees and expenses and the costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder,
except to the extent that any such loss, liability or expense was due
to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the
Issuer and the Guarantor under this Section, the Trustee shall have a lien prior
to the Securities of any series upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of,
and premium or interest on or any Additional Amounts with respect to Securities
or any Coupons appertaining thereto.
Any compensation or expense incurred by the Trustee after a
default specified by Section 501 is intended to constitute an expense of
administration under any then applicable bankruptcy or insolvency law. "Trustee"
for purposes of this Section 606 shall include any predecessor Trustee but the
negligence or bad faith of any Trustee shall not affect the rights of any other
Trustee under this Section 606. The Issuer's and the Guarantor's payment
obligations pursuant to this Section 606 shall survive the resignation or
removal of the Trustee and the discharge of this Indenture.
Section 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000 subject to supervision or examination by Federal or
state authority. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 608. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee pursuant
to Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Issuer
and the Guarantor (if the Securities are
55
Guaranteed Securities). If the instrument of acceptance by a successor Trustee
required by Section 609 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and the Issuer and the Guarantor (if the Securities are Guaranteed Securities),
provided, that such removal shall only be effective upon the appointment and
acceptance of a successor Trustee and the delivery by the successor Trustee to
the Trustee of the instrument of acceptance required by Section 609.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) or any Holder of a Security of such series who has been a
bona fide Holder of a Security of such series for at least six
months, or
(b) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the
Issuer, the Guarantor (if the Securities are Guaranteed Securities)
or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by or pursuant to a Board Resolution, or
the Guarantor (if the Securities are Guaranteed Securities), by or pursuant to a
Guarantor's Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject to Section 315(e)
of the Trust Indenture Act, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Issuer, by
or pursuant to a Board Resolution, and the Guarantor (if the Securities are
Guaranteed Securities), by or pursuant to a Guarantor's Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any
56
particular series) and shall comply with the applicable requirements of Section
609. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Issuer, the Guarantor (if the Securities are Guaranteed Securities) and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of
Section 609, become the successor Trustee with respect to the Securities of such
series and to that extent supersede the successor Trustee appointed by the
Issuer and the Guarantor (if the Securities are Guaranteed Securities). If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) or the Holders of Securities and accepted appointment in the manner
required by Section 609, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(6) The Issuer shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Securities of
such series are issued as Bearer Securities, by publishing notice of such event
once in an Authorized Newspaper in each Place of Payment located outside the
United States. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(1) Upon the appointment hereunder of any successor Trustee
with respect to all Securities, such successor Trustee so appointed shall
execute, acknowledge and deliver to the Issuer, the Guarantor and the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties hereunder of the retiring Trustee;
but, on the request of the Issuer, the Guarantor or such successor Trustee, such
retiring Trustee, upon payment of its charges, shall execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 1003, shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee
with respect to the Securities of one or more (but not all) series, the Issuer,
the Guarantor (if any of such series of Securities is a series of Guaranteed
Securities), the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to
57
transfer and confirm to, and to vest in, such successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall 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, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee and that no Trustee shall be responsible
for any notice given to, or received by, or any act or failure to act on the
part of any other Trustee hereunder, and, upon the execution and delivery of
such supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein, such retiring Trustee
shall have no further responsibility for the exercise of rights and powers or
for the performance of the duties and obligations vested in the Trustee under
this Indenture with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates other than as hereinafter
expressly set forth, and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on
request of the Issuer, the Guarantor, if applicable, or such successor Trustee,
such retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such successor
relates and subject to Section 1003 shall duly assign, transfer and deliver to
such successor Trustee, to the extent contemplated by such supplemental
indenture, the property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject to its claim, if any, provided for in
Section 606.
(3) Upon request of any Person appointed hereunder as a
successor Trustee, the Issuer and the Guarantor shall execute any and all
instruments for more fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts referred to in paragraph
(1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a
successor Trustee unless at the time of such acceptance such successor Person
shall be qualified and eligible under this Article.
Section 610. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS.
Any Corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any Corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any
58
Securities shall have been authenticated but not delivered by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 611. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint one or more Authenticating Agents
acceptable to the Issuer with respect to one or more series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities
of that or those series issued upon original issue, exchange, registration of
transfer, partial redemption or partial repayment or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer
and the Guarantor and, except as provided in or pursuant to this Indenture,
shall at all times be a corporation that would be permitted by the Trust
Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act, is authorized under applicable law and by its charter to act as
an Authenticating Agent and has a combined capital and surplus (computed in
accordance with Section 310(a)(2) of the Trust Indenture Act) of at least
$50,000,000. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to all or
substantially all of the corporate agency or corporate trust business of an
Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, PROVIDED such Corporation shall be otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee, the Guarantor and the Issuer. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent, the Guarantor and the
Issuer. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Issuer and the
Guarantor and shall (i) mail written notice of such appointment by first-class
mail, postage prepaid, to all Holders of Registered Securities, if any, of the
series with respect to which such Authenticating Agent shall serve, as their
names and addresses appear in the Security Register,
59
and (ii) if Securities of the series are issued as Bearer Securities, publish
notice of such appointment at least once in an Authorized Newspaper in the place
where such successor Authenticating Agent has its principal office if such
office is located outside the United States. Any successor Authenticating Agent,
upon acceptance of its appointment hereunder, shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Issuer agrees and the Guarantor agrees to pay each
Authenticating Agent from time to time reasonable compensation for its services
under this Section. If the Trustee makes such payments, it shall be entitled to
be reimbursed for such payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be
applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one
or more series of Securities pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Securities of the series designated
herein referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
As Trustee
By:
As Authenticating Agent
By:
Authorized Officer
If all of the Securities of any series may not be originally
issued at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Issuer wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not be accompanied by or contained in an Officers' Certificate by the Issuer),
shall appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Issuer with respect to such
series of Securities.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
Section 701. ISSUER AND THE GUARANTOR TO FURNISH
TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
In accordance with Section 312(a) of the Trust Indenture
Act, the Issuer and the Guarantor (with respect to Securities of each series
that are Guaranteed Securities) shall furnish or cause to be furnished to the
Trustee
(1) semi-annually with respect to Securities of each series,
a list, in each case in such form as the Trustee may reasonably
require, of the names and addresses of Holders as of the applicable
date, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Issuer or the
Guarantor (with respect to Securities of each series that are
Guaranteed Securities) of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such
list is furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION;
COMMUNICATIONS TO HOLDERS.
The Trustee shall comply with the obligations imposed upon
it pursuant to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and
holding the same, agrees with the Issuer, the Guarantor and the Trustee that
neither the Issuer, the Guarantor, the Trustee, any Paying Agent or any Security
Registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 312(c) of the Trust Indenture Act, regardless of the
source from which such information was derived, and that the Trustee shall not
be held accountable by reason of mailing any material pursuant to a request made
under Section 312(b) of the Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(1) Within 60 days after December 1 of each year commencing
with the first December 1 following the first issuance of Securities pursuant to
Section 301, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a
brief report dated as of such December 1 with respect to any of the events
specified
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in said Section 313(a) which may have occurred since the later of the
immediately preceding December 1 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by
Section 313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in
the manner and to the Persons required by Sections 313(c) and 313(d) of the
Trust Indenture Act.
Section 704. REPORTS BY ISSUER AND GUARANTOR.
The Issuer and the Guarantor, pursuant to Section 314(a) of
the Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Issuer
or the Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Issuer or the Guarantor, as the case may be, may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Issuer or the Guarantor, as the case may be, is not
required to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
of the supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer or the Guarantor, as the case may be, with the conditions and covenants
of this Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c) of the
Trust Indenture Act, such summaries of any information, documents and reports
required to be filed by the Issuer or the Guarantor pursuant to paragraphs (1)
and (2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. ISSUER MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Issuer with or into
any other Person or Persons (whether or not affiliated with the Issuer), or
successive consolidations or mergers in which either the Issuer will be the
continuing entity or the Issuer or its successor or successors shall be a party
or parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Issuer, to any other Person (whether or
not affiliated with the Issuer); PROVIDED, HOWEVER, that:
(1) in case the Issuer shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such consolidation or
into which the Issuer is merged or the Person which acquires by conveyance or
transfer, or which leases, all or substantially all of the properties of the
Issuer shall be a Person organized and existing under the laws of the United
States of America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time there is more
than one Trustee) supplemental hereto, executed by the successor Person and the
Guarantor and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of, any premium and interest on and
any Additional Amounts with respect to all the Securities and the performance of
every obligation in this Indenture and the Outstanding Securities on the part of
the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Issuer or the successor Person shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or lease and,
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
No such consolidation, merger, conveyance, transfer or lease shall be permitted
by this Section unless prior thereto the Guarantor shall have delivered to the
Trustee a Guarantor's Officers' Certificate and an Opinion of Counsel, each
stating that the Guarantor's obligations hereunder shall remain in full force
and effect thereafter.
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Section 802. SUCCESSOR PERSON SUBSTITUTED FOR ISSUER.
Upon any consolidation by the Issuer with or merger of the
Issuer into any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Issuer to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Issuer is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as if
such successor Person had been named as the Issuer herein; and thereafter,
except in the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
Section 803. GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Guarantor with or
into any other Person or Persons (whether or not affiliated with the Guarantor),
or successive consolidations or mergers in which either the Guarantor will be
the continuing entity or the Guarantor or its successor or successors shall be a
party or parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Guarantor, to any other Person (whether
or not affiliated with the Guarantor); PROVIDED, HOWEVER, that:
(1) in case the Guarantor shall consolidate with or merge
into another Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such consolidation or
into which the Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, all or substantially all of the properties and assets
of the Guarantor shall be a Person organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture (or indentures, if at such time there is
more than one Trustee) supplemental hereto, executed and delivered by the Issuer
and the successor Person to the Trustee, in form satisfactory to the Trustee,
the obligation of the Guarantor under the Guarantee and the performance of every
other covenant of this Indenture on the part of the Guarantor to be performed or
observed;
(2) immediately after giving effect to such transaction, no
Event of Default and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
(3) each of the Guarantor and the successor Person has
delivered to the Trustee a Guarantor's Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
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Section 804. SUCCESSOR PERSON SUBSTITUTED FOR GUARANTOR.
Upon any consolidation or merger or any conveyance, transfer
or lease of all or substantially all of the properties and assets of the
Guarantor to any Person in accordance with Section 803, the successor Person
formed by such consolidation or into which the Guarantor is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Guarantor under this
Indenture with the same effect as if such successor Person had been named as the
Guarantor herein, and thereafter, except in the case of a lease to another
Person, the predecessor Person shall be released from all obligations and
covenants under this Indenture.
Section 805. ASSUMPTION BY GUARANTOR.
The Guarantor, or a subsidiary thereof that is a
Corporation, may directly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of, any premium and interest on and any
Additional Amounts with respect to all the Guaranteed Securities and the
performance of every covenant of this Indenture on the part of the Issuer to be
performed or observed. Upon any such assumption, the Guarantor or such
subsidiary shall succeed to, and be substituted for and may exercise every right
and power of, the Issuer under this Indenture with the same effect as if the
Guarantor or such subsidiary had been named as the Issuer herein and the Issuer
shall be released from all obligations and covenants with respect to the
Guaranteed Securities. No such assumption shall be permitted unless the
Guarantor has delivered to the Trustee (i) a Guarantor's Officers' Certificate
and an Opinion of Counsel, each stating that such assumption and supplemental
indenture comply with this Article, and that all conditions precedent herein
provided for relating to such transaction have been complied with and that, in
the event of assumption by a subsidiary, the Guarantee and all other covenants
of the Guarantor herein remain in full force and effect and (ii) an opinion of
independent counsel that the Holders of Guaranteed Securities or related Coupons
(assuming such Holders are only taxed as residents of the United States) shall
have no United States federal tax consequences as a result of such assumption,
and that, if any Securities are then listed on the New York Stock Exchange, that
such Securities shall not be delisted as a result of such assumption.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS.
Without the consent of any Holders of Securities or Coupons,
the Issuer (when authorized by or pursuant to a Board Resolution), the Guarantor
(when authorized by a Guarantor's Board Resolution) and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the
Issuer or the Guarantor, and the assumption by any such successor of the
covenants of the Issuer or the Guarantor, as the case may be, contained herein
and in the Securities; or
(2) to add to the covenants of the Issuer or the Guarantor
for the benefit of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to surrender any
right or power herein conferred upon the Issuer or the Guarantor; or
(3) to add any additional Events of Default with respect to
all or any series of Securities (as shall be specified in such supplemental
indenture); or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to Securities, to
permit Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of Securities
in uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any Coupons appertaining
thereto in any material respect; or
(5) to add to, delete from or revise the conditions,
limitations and restrictions on the authorized amount, terms or purposes of
issue, authentication and delivery of Securities, as herein set forth; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any Coupons appertaining thereto as permitted by Sections 201 and
301; or
(8) 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, pursuant to the requirements
of Section 609; or
(9) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not adversely affect the interests of
the Holders of Securities of any series then Outstanding or any Coupons
appertaining thereto in any material respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, PROVIDED that
any such action shall not adversely affect the interests of any Holder
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of a Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect; or
(11) to effect the assumption by the Guarantor or a
subsidiary thereof pursuant to Section 805; or
(12) to amend or supplement any provision contained herein
or in any supplemental indenture, PROVIDED that no such amendment or supplement
shall materially adversely affect the interests of the Holders of any Securities
then Outstanding.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) and the Trustee, the
Issuer (when authorized by or pursuant to an Issuer's Board Resolution), the
Guarantor (when authorized by or pursuant to a Guarantor's Board Resolution), if
applicable, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture or of the Securities of such series; PROVIDED, HOWEVER,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any
premium or installment of interest on or any Additional Amounts with respect to,
any Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Issuer to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the amount
thereof provable in bankruptcy pursuant to Section 504, change the redemption
provisions or adversely affect the right of repayment at the option of any
Holder as contemplated by Article Thirteen, or change the Place of Payment,
Currency in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption Date
or, in the case of repayment at the option of the Holder, on or after the date
for repayment or in the case of change in control), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or voting, or
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(3) modify or effect in any manner adverse to the Holders
the terms and conditions of the obligations of the Guarantor in respect of the
due and punctual payments of principal of, or any premium or interest on or any
sinking fund requirements or Additional Amounts with respect to, Guaranteed
Securities, or
(4) modify any of the provisions of this Section, Section
513 or Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which shall have been included
expressly and solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Securities of any other
series.
It shall not be necessary for any Act of Holders of
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
As a condition to executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of a Security theretofore or thereafter authenticated and delivered
hereunder and of any Coupon appertaining thereto shall be bound thereby.
Section 905. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES.
Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Issuer shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Issuer, to any such supplemental
indenture may be prepared and
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executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
Section 906. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as then in
effect.
ARTICLE TEN
COVENANTS
Section 1001. PAYMENT OF PRINCIPAL, ANY PREMIUM,
INTEREST AND ADDITIONAL AMOUNTS.
The Issuer covenants and agrees for the benefit of the
Holders of the Securities of each series that it will duly and punctually pay
the principal of, any premium and interest on and any Additional Amounts with
respect to the Securities of such series in accordance with the terms thereof,
any Coupons appertaining thereto and this Indenture. Any interest due on any
Bearer Security on or before the Maturity thereof, and any Additional Amounts
payable with respect to such interest, shall be payable only upon presentation
and surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Issuer or the Guarantor (if any Guaranteed Securities
are Outstanding) shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, and where notices and demands to or upon the Issuer or the
Guarantor (if any Guaranteed Securities are Outstanding) in respect of the
Securities of such series relating thereto and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Issuer or the
Guarantor (if any Guaranteed Securities are Outstanding) shall maintain, subject
to any laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; PROVIDED, HOWEVER, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Issuer
or the Guarantor (if any Guaranteed Securities are Outstanding) shall maintain a
Paying Agent in London, Luxembourg or any other required city located outside
the United States, as the case may be, so long as the Securities of such series
are listed on such exchange. The Issuer or the Guarantor (if any Guaranteed
Securities are Outstanding) will give prompt written notice to the
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Trustee of the location, and any change in the location, of such Office or
Agency. If at any time the Issuer or the Guarantor shall fail to maintain any
such required Office or Agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the Issuer
and the Guarantor each hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this
Indenture, no payment of principal, premium, interest or Additional Amounts with
respect to Bearer Securities shall be made at any Office or Agency in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; PROVIDED,
HOWEVER, if amounts owing with respect to any Bearer Securities shall be payable
in Dollars, payment of principal of, any premium or interest on and any
Additional Amounts with respect to any such Security may be made at the
Corporate Trust Office of the Trustee or any Office or Agency designated by the
Issuer in the Borough of Manhattan, The City of New York, if (but only if)
payment of the full amount of such principal, premium, interest or Additional
Amounts at all offices outside the United States maintained for such purpose by
the Issuer in accordance with this Indenture is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Issuer or the Guarantor (if any Guaranteed Securities
are Outstanding) may also from time to time designate one or more other Offices
or Agencies where the Securities of one or more series 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 Issuer or the Guarantor of its obligation to maintain an
Office or Agency in each Place of Payment for Securities of any series for such
purposes. The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
Office or Agency. Unless otherwise provided in or pursuant to this Indenture,
the Issuer and the Guarantor (with respect to any Guaranteed Securities) each
hereby designates as the Place of Payment for each series of Securities the
Borough of Manhattan, The City of New York, and initially appoints First Union
National Bank, c/o First Union National Bank of New York, 00 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx 00000 as the Office or Agency of the Issuer
or the Guarantor (with respect to any Guaranteed Securities), as the case may
be, in the Borough of Manhattan, The City of New York for such purpose. The
Issuer or the Guarantor, as the case may be, may subsequently appoint a
different Office or Agency in the Borough of Manhattan, The City of New York for
the Securities of any series.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of this Indenture, then
the Issuer will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
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Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD
IN TRUST.
If the Issuer shall at any time act as its own Paying Agent
with respect to any series of Securities, it shall, on or before each due date
of the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due until such sums
shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for
any series of Securities, it shall, on or prior to each due date of the
principal of, any premium or interest on or any Additional Amounts with respect
to any Securities of such series, deposit with any Paying Agent a sum (in the
currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
or any premium, interest or Additional Amounts so becoming due, such sum to be
held in trust for the benefit of the Persons entitled thereto, and (unless such
Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or failure so to act.
The Issuer shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional Amounts with respect
to Securities of such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of
as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer or
the Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, any premium or interest on or any Additional
Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Issuer or the Guarantor (with Securities that are
Guaranteed Securities) may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order or Guarantor Order, as the case may be, direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Issuer or such Paying
Agent, such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Issuer or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
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Except as otherwise provided herein or pursuant hereto, any
money deposited with the Trustee or any Paying Agent, or then held by the
Issuer, in trust for the payment of the principal of, any premium or interest on
or any Additional Amounts with respect to any Security of any series or any
Coupon appertaining thereto and remaining unclaimed for two years after such
principal or any such premium or interest or any such Additional Amounts shall
have become due and payable shall be paid to the Issuer on Issuer Request (or if
deposited by the Guarantor, paid to the Guarantor on Guarantor Request), or (if
then held by the Issuer) shall be discharged from such trust; and the Holder of
such Security or any Coupon appertaining thereto shall thereafter, as an
unsecured general creditor, look only to the Issuer and the Guarantor (if the
Securities are Guaranteed Securities) for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Issuer as trustee thereof, shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Issuer cause to be published once,
in an Authorized Newspaper in each Place of Payment for such series or to be
mailed to Holders of Registered Securities of such series, or both, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing nor
shall it be later than two years after such principal and any premium or
interest or Additional Amounts shall have become due and payable, any unclaimed
balance of such money then remaining will be repaid to the Issuer or the
Guarantor, as the case may be.
Section 1004. ADDITIONAL AMOUNTS.
If any Securities of a series provide for the payment of
Additional Amounts, the Issuer and the Guarantor (if the Securities are
Guaranteed Securities) agree to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided in or pursuant to
this Indenture or such Securities. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express mention
of the payment of Additional Amounts (if applicable) in any provision hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this
Indenture or the Securities of the applicable series, if the Securities of a
series provide for the payment of Additional Amounts, at least 10 days prior to
the first Interest Payment Date with respect to such series of Securities (or if
the Securities of such series shall not bear interest prior to Maturity, the
first day on which a payment of principal is made), and at least 10 days prior
to each date of payment of principal or interest if there has been any change
with respect to the matters set forth in the below-mentioned Officers'
Certificate, the Issuer or the Guarantor, as the case may be, shall furnish to
the Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officers' Certificate instructing the Trustee and such Paying Agent
or Paying Agents whether such payment of principal of and premium, if any, or
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interest on the Securities of such series shall be made to Holders of Securities
of such series or the Coupons appertaining thereto who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of such series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities or Coupons, and the Issuer and the Guarantor (if the
Securities are Guaranteed Securities) agree to pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. The
Issuer and the Guarantor each covenant to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
Section 1005. MAINTENANCE OF PROPERTIES.
The Issuer will cause all of its material properties used or
useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Issuer may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
PROVIDED, HOWEVER, that nothing in this Section shall prevent the Issuer or any
Subsidiary from selling or otherwise disposing for value any of their respective
properties in the ordinary course of business.
Section 1006. INSURANCE.
The Issuer will, and will cause each of its Subsidiaries to,
keep all of its insurable properties insured against loss or damage at least
equal to their then full insurable value with financially sound and reputable
insurers of recognized responsibility.
Section 1007. EXISTENCE.
Subject to Article Eight, the Issuer and the Guarantor shall
do or cause to be done all things necessary to preserve and keep in full force
and effect their respective existences and that of each Subsidiary and their
respective rights (charter and statutory) and franchises; PROVIDED, HOWEVER,
that the foregoing shall not obligate the Issuer, the Guarantor or any
Subsidiary to preserve any such right or franchise if the Issuer or the
Guarantor, as the case may be, or any Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of its business or
the business of such Subsidiary and that the loss thereof is not disadvantageous
in any material respect to any Holder.
Section 1008. WAIVER OF CERTAIN COVENANTS.
The Issuer or the Guarantor, as the case may be, may omit in
any particular instance to comply with any term, provision or condition set
forth in Sections 1005, 1006, 1007, 1011, 1012, 1013 or 1014 with respect to the
Securities of any series if before the time for such compliance the
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Holders of at least a majority in principal amount of the Outstanding Securities
of such series, by Act of such Holders, either shall waive such compliance in
such instance or generally shall have waived compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the Guarantor
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
Section 1009. ISSUER STATEMENT AS TO COMPLIANCE; NOTICE
OF CERTAIN DEFAULTS.
(1) The Issuer shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the General Partner acting in its capacity as the sole general
partner of the Issuer, stating that
(a) a review of the activities of the Issuer during such
year and of its performance under this Indenture has been made under
his or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (a) the Issuer has complied with all the conditions and
covenants imposed on it under this Indenture throughout such year,
or, if there has been a default in the fulfillment of any such
condition or covenant, specifying each such default known to him or
her and the nature and status thereof, and (b) no event has occurred
and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the
nature and status thereof.
(2) The Issuer shall deliver to the Trustee, within five
days after the occurrence thereof, written notice of any Event of Default or any
event which after notice or lapse of time or both would become an Event of
Default pursuant to clause (4) of Section 501.
Section 1010. GUARANTOR STATEMENT AS TO COMPLIANCE;
NOTICE OF CERTAIN DEFAULTS.
(1) The Guarantor shall deliver to the Trustee, within 120
days after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Guarantor, stating that
(a) a review of the activities of the Guarantor during such
year and of performance under this Indenture has been made under his
or her supervision, and
(b) to the best of his or her knowledge, based on such
review, (a) the Guarantor has complied with conditions and covenants
imposed on it under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (b)
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no event has occurred and is continuing which constitutes, or which
after notice or lapse of time or both would become, an Event of
Default, or, if such an event has occurred and is continuing,
specifying each such event known to him and the nature and status
thereof.
(2) The Guarantor shall deliver to the Trustee, within five
days after the occurrence thereof, written notice of any event which after
notice or lapse of time or both would become an Event of Default pursuant to
clause (4) of Section 501.
Section 1011. LIMITATIONS ON INCURRENCE OF INDEBTEDNESS.
(a) The Issuer will not, and will not permit any Subsidiary
to, incur any Indebtedness, other than Permitted Indebtedness, if, immediately
after giving effect to the incurrence of such additional Indebtedness, the
aggregate principal amount of all outstanding Indebtedness of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (i) the Total Assets as of the end of the
calendar quarter covered in the Issuer's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not required under the Exchange Act, with the Trustee)
prior to the incurrence of such additional Indebtedness and (ii) any increase in
the Total Assets since the end of such quarter including, without limitation,
any increase in Total Assets resulting from the incurrence of such additional
Indebtedness (such increase together with the Total Assets being referred to as
the "Adjusted Total Assets");
(b) In addition to the limitation set forth in subsection
(a) of this Section 1011, the Issuer will not, and will not permit any
Subsidiary to, incur any Indebtedness if, for the period consisting of the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Indebtedness is to be incurred, the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge shall have been less
than 1.5 to 1.0, on a pro forma basis after giving effect to the incurrence of
such Indebtedness and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Indebtedness and any other
Indebtedness incurred by the Issuer or its Subsidiaries since the first day of
such four-quarter period and the application of the proceeds therefrom,
including to refinance other Indebtedness, had occurred at the beginning of such
period, (ii) the repayment or retirement of any other Indebtedness by the Issuer
or its Subsidiaries since the first day of such four-quarter period had been
incurred, repaid or retained at the beginning of such period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such period), (iii) any income earned as a result of any
increase in Adjusted Total Assets since the end of such four-quarter period had
been earned, on an annualized basis, for such period, and (iv) in the case of an
acquisition or disposition by the Issuer or any Subsidiary of any asset or group
of assets since the first day of such four-quarter period, including, without
limitation, by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Indebtedness had occurred
as of the first day of such period with the appropriate adjustments with respect
to such acquisition or disposition being included in such pro forma calculation.
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(c) In addition to the limitations set forth in subsections
(a) and (b) of this Section 1011, the Issuer will not, and will not permit any
Subsidiary to, incur any Indebtedness secured by any mortgage, lien, charge,
pledge, encumbrance or security interest of any kind upon any of the property of
the Issuer or any Subsidiary (the "Secured Indebtedness"), whether owned at the
date hereof or hereafter acquired, if, immediately after giving effect to the
incurrence of such additional Secured Indebtedness, the aggregate principal
amount of all outstanding Secured Indebtedness of the Issuer and its
Subsidiaries on a consolidated basis is greater than 40% of the Adjusted Total
Assets.
(d) For purposes of this Section 1011, Indebtedness shall be
deemed to be "incurred" by the Issuer or its Subsidiaries on a consolidated
basis whenever the Issuer and its Subsidiaries on a consolidated basis shall
create, assume, guarantee or otherwise become liable in respect thereof.
Section 1012. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS.
The Issuer will maintain Total Unencumbered Assets of not
less than 200% of the aggregate outstanding principal amount of the Unsecured
Debt of the Issuer.
Section 1013. PAYMENT OF TAXES AND OTHER CLAIMS.
The Issuer and the Guarantor will pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon them or any
Subsidiary or upon the income, profits or property of the Issuer, the Guarantor
or any Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Issuer,
the Guarantor or any Subsidiary; PROVIDED, HOWEVER, that neither the Issuer nor
the Guarantor shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 1014. PROVISION OF FINANCIAL INFORMATION.
Whether or not the Issuer is subject to Section 13 or 15(d)
of the Exchange Act and for so long as any Securities are outstanding, the
Issuer will, to the extent permitted under the Exchange Act, file with the
Commission the annual reports, quarterly reports and other documents which the
Issuer would have been required to file with the Commission pursuant to such
Section 13 or 15(d) (the "Financial Statements") if the Issuer were so subject,
such documents to be filed with the Commission on or prior to the respective
dates (the "Required Filing Dates") by which the Issuer would have been required
so to file such documents if the Issuer were so subject.
The Issuer will also in any event (x) within 15 days after
each Required Filing Date (i) transmit by mail to all Holders, as their names
and addresses appear in the Security Register, without cost to such Holders
copies of the annual reports and quarterly reports which the Issuer would have
been required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Issuer were subject to such Sections, and (ii) file with the
Trustee copies of the annual reports,
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quarterly reports and other documents which the Issuer would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Issuer were subject to such Sections and (y) if filing such documents by
the Issuer with the Commission is not permitted under the Exchange Act, promptly
upon written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. APPLICABILITY OF ARTICLE.
Redemption of Securities of any series at the option of the
Issuer as permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Issuer to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Issuer of (a) less than all of the Securities of any series or
(b) all of the Securities of any series, with the same issue date, interest rate
or formula, Stated Maturity and other terms, the Issuer shall, at least 60 days
prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED.
If less than all of the Securities of any series with the
same issue date, interest rate or formula, Stated Maturity and other terms are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions of the principal amount of
Registered Securities of such series; PROVIDED, HOWEVER, that no such partial
redemption shall reduce the portion of the principal amount of a Registered
Security of such series not redeemed to less than the minimum denomination for a
Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Issuer and the
Security Registrar (if other than itself) in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal of such Securities which has been or is to
be redeemed.
Unless otherwise specified in or pursuant to this Indenture
or the Securities of any series, if any Security selected for partial redemption
is converted or exchanged for Common Stock or other securities in part before
termination of the conversion or exchange right with respect to the portion of
the Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted or exchanged during a selection of Securities to be redeemed
shall be treated by the Trustee as Outstanding for the purpose of such
selection.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided
in Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed. Failure to give notice by mailing in
the manner herein provided to the Holder of any Registered Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder of such Security
will receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall
become due and payable upon each such Security or portion thereof to be
redeemed, and, if applicable, that interest thereon shall cease to accrue on and
after said date,
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(6) the place or places where such Securities, together (in
the case of Bearer Securities) with all Coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and any accrued interest and Additional Amounts pertaining
thereto,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all Coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Issuer, the
Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on the Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Issuer, on which such exchanges may be made,
(10) in the case of Securities of any series that are
convertible or exchangeable into other securities, the conversion or exchange
price or rate, the date or dates on which the right to convert or exchange the
principal of the Securities of such series to be redeemed will commence or
terminate and the place or places where such Securities may be surrendered for
conversion or exchange, and
(11) the CUSIP number or the Euroclear or the Cedel
reference numbers of such Securities, if any (or any other numbers used by a
Depository to identify such Securities).
A notice of redemption published as contemplated by Section
106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the
election of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Issuer shall
deposit, with respect to the Securities of any series called for redemption
pursuant to Section 1104, with the Trustee or with a Paying Agent (or, if the
Issuer is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the applicable Currency
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date, unless otherwise specified pursuant to
Section 301 or in the Securities of such series) any accrued interest on and
Additional Amounts with respect thereto, all such Securities or portions thereof
which are to be redeemed on that date.
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Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Issuer shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest and the Coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
Coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Issuer at the Redemption Price, together with any
accrued interest and Additional Amounts to the Redemption Date; PROVIDED,
HOWEVER, that, except as otherwise provided in or pursuant to this Indenture or
the Bearer Securities of such series, installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only upon presentation and surrender of Coupons for such interest (at an
Office or Agency located outside the United States except as otherwise provided
in Section 1002), and PROVIDED, FURTHER, that, except as otherwise specified in
or pursuant to this Indenture or the Registered Securities of such series,
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the Regular Record Dates therefor according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant Coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Issuer and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium, until
paid, shall bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part
shall be surrendered at any Office or Agency for such Security (with, if the
Issuer or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing) and the Issuer
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service
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charge, a new Registered Security or Securities of the same series, containing
identical terms and provisions, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Security in global form is so surrendered, the Issuer shall execute, and the
Trustee shall authenticate and deliver to the U.S. Depository or other
Depository for such Security in global form as shall be specified in the Issuer
Order with respect thereto to the Trustee, without service charge, a new
Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series, except as otherwise
permitted or required in or pursuant to this Indenture or any Security of such
series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of such series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series and this Indenture.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.
The Issuer may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any series to be made
pursuant to the terms of such Securities (1) deliver Outstanding Securities of
such series (other than any of such Securities previously called for redemption
or any of such Securities in respect of which cash shall have been released to
the Issuer), together in the case of any Bearer Securities of such series with
all unmatured Coupons appertaining thereto, and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Issuer
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, PROVIDED that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need
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not call Securities of such series for redemption, except upon Issuer Request,
and such cash payment shall be held by the Trustee or a Paying Agent and applied
to the next succeeding sinking fund payment, PROVIDED, HOWEVER, that the Trustee
or such Paying Agent shall at the request of the Issuer from time to time pay
over and deliver to the Issuer any cash payment so being held by the Trustee or
such Paying Agent upon delivery by the Issuer to the Trustee of Securities of
that series purchased by the Issuer having an unpaid principal amount equal to
the cash payment requested to be released to the Issuer.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 75 days prior to each sinking fund payment
date for any series of Securities, the Issuer shall deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing mandatory
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Issuer shall thereupon be obligated to pay the amount therein specified. Not
less than 60 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Issuer in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option
of the Holders thereof before their Stated Maturity shall be repaid in
accordance with the terms of the Securities of such series. The repayment of any
principal amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their Stated Maturity, for purposes of Section
309, shall not operate as a payment, redemption or satisfaction of the
Indebtedness represented by such Securities unless and until the Issuer, at its
option, shall deliver or surrender the same to the Trustee with a directive that
such Securities be cancelled. Notwithstanding anything to the contrary contained
in this Section 1301, in connection with any repayment of Securities, the Issuer
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the Issuer
on
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repayment of such Securities, and the obligation of the Issuer to pay the
repayment price of such Securities shall be satisfied and discharged to the
extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. APPLICABILITY OF ARTICLE.
Whenever this Indenture provides for (i) any action by, or
the determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same Currency, or
(ii) any distribution to Holders of Securities, in the absence of any provision
to the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Issuer or the Guarantor may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such place outside the United States as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
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(2) In case at any time the Issuer (by or pursuant to a
Board Resolution), the Guarantor (if the Securities are Guaranteed Securities),
by or pursuant to a Guarantor's Board Resolution or the Holders of at least 10%
in principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first publication of the
notice of such meeting within 21 days after receipt of such request (whichever
shall be required pursuant to Section 106) or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Issuer, the Guarantor,
if applicable, or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 1503. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel, any representatives of the Guarantor and its counsel and any
representatives of the Issuer and its counsel.
Section 1504. QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes after the time appointed for any such meeting, the meeting
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(1), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted only by the affirmative vote of
the Holders of a majority in principal amount of the Outstanding Securities of
that series; PROVIDED, HOWEVER, that, except as limited by the proviso to
Section 902, any resolution
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with respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. DETERMINATION OF VOTING RIGHTS;
CONDUCT AND ADJOURNMENT OF MEETINGS.
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(2) The Trustee shall, by an instrument in writing, appoint
a temporary chairman of the meeting, unless the meeting shall have been called
by the Issuer or by Holders of Securities as provided in Section 1502(2), in
which case the Issuer, the Guarantor or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(3) At any meeting, each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; PROVIDED, HOWEVER, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
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(4) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS.
The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which shall
be subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer and the Guarantor, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE
Section 1601. GUARANTEE.
The Guarantee set forth in this Article Sixteen shall only
be in effect with respect to Securities of a series to the extent such Guarantee
is made applicable to such series in accordance with Section 301. The Guarantor
hereby unconditionally guarantees to each Holder of a Guaranteed Security
authenticated and delivered by the Trustee the due and punctual payment of the
principal of, any premium and interest on, and any Additional Amounts with
respect to such Guaranteed Security and the due and punctual payment of the
sinking fund payments (if any) provided for pursuant to the terms of such
Guaranteed Security, when and as the same shall become due and payable, whether
at maturity, by acceleration, redemption, repayment or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure of
the Issuer punctually to pay any such principal, premium, interest, Additional
Amounts or sinking fund payment, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at maturity, upon acceleration, redemption, repayment or otherwise, and
as if such payment were made by the Issuer.
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The Guarantor hereby agrees that its obligations hereunder
shall be as principal and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Guaranteed Security or this
Indenture, any failure to enforce the provisions of any Guaranteed Security or
this Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Issuer or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium and interest on, and any
Additional Amounts and sinking fund payments required with respect to, the
Guaranteed Securities and the complete performance of all other obligations
contained in the Guaranteed Securities.
This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment on any Guaranteed
Security, in whole or in part, is rescinded or must otherwise be restored to the
Issuer or the Guarantor upon the bankruptcy, liquidation or reorganization of
the Issuer or otherwise.
The Guarantor shall be subrogated to all rights of the
Holder of any Guaranteed Security against the Issuer in respect of any amounts
paid to such Holder by the Guarantor pursuant to the provisions of this
Guarantee; PROVIDED, HOWEVER, that the Guarantor shall not be entitled to
enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, any premium and interest on, and any
Additional Amounts and sinking fund payments required with respect to, all
Guaranteed Securities shall have been paid in full.
* * * * *
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This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
Highwoods/Forsyth Limited Partnership
By: Highwoods Properties, Inc.
Attest: /s/ Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary Title: President
[SEAL] Highwoods Properties, Inc.
as Guarantor
Attest: /s/ Xxxxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxx
Title: Secretary Title: President
[SEAL] FIRST UNION NATIONAL BANK OF
NORTH CAROLINA
as Trustee
Attest: /s/ Xxxxx X. Xxxxxxxx
By: /s/ Pablo de la Canal
Name:Xxxxx X. Xxxxxxxx Name: Pablo de la Canal
Title: Assistant Vice President Title: Assistant Vice President
[SEAL]
88
STATE OF NORTH CAROLINA)
: SS.:
COUNTY OF WAKE)
On the 27th day of November, 1996, before me
personally came Xxxxxx X. Xxxxxx, to me known, who, being by me duly sworn, did
depose and say that he is President of Highwoods Properties, Inc.,
acting in its capacity as the general partner of Highwoods/Forsyth Limited
Partnership, a North Carolina limited partnership, one of the parties described
in and which executed the foregoing instrument; and that he signed his name
thereto by authority of the Board of Directors of Highwoods Properties, Inc.
/s/ Xxxxxxxxx X. Xxxxxxxx
Notary Public
(my commission expires 10/9/2000)
[NOTARIAL SEAL]
STATE OF NORTH CAROLINA)
: SS.:
COUNTY OF WAKE)
On the 27th day of November , 1996 , before me
personally came Xxxxxx X. Xxxxxx, to me known, who, being by me duly sworn, did
depose and say that he is President of Highwoods Properties, Inc., a
Maryland corporation, one of the parties described in and which executed the
foregoing instrument; that he knows the seal of said Corporation; that the seal
affixed to said instrument is such Corporation's seal; that it was so affixed
by authority of the Board of Directors of said Corporation; and that he signed
his name thereto by like authority.
/s/ Xxxxxxxxx X. Xxxxxxxx
Notary Public
(my commission expires 10/9/2000)
[NOTARIAL SEAL]
00
XXXXX XX XXXXX XXXXXXXX )
: SS.: _______________
COUNTY OF MECKLENBURG )
On the 27th day of November , 1996 , before me
personally came Pablo de la Canal, to me known, who, being by me duly sworn, did
depose and say that he is an Assistant Vice President of First Union National Bank
of North Carolina, a national banking association, one of the parties described in
and which executed the foregoing instrument; that he knows the seal of said Corpor-
ation; that the seal affixed to said instrument is such trust company's seal; that it
was so affixed by authority of the Board of Directors of said trust company; and
that he signed his name thereto by like authority.
/s/ Xxxxxxx X. Xxxxxx
Notary Public
(my commission expires 1/2/99)
[NOTARIAL SEAL]
90
