WORLD FINANCIAL PROPERTIES, L.P.
and
THE BANK OF NEW YORK, as Trustee
-----------------------------
INDENTURE
Dated as of ____________, 1996
-----------------------------
$
Increasing Rate Convertible Notes due 2004
CROSS REFERENCE TABLE1
TIA Indenture
Section Section
310 (a) (1)........................................... 7.10
(a) (2)........................................... 7.10
(a) (3)........................................... N.A.2
(a) (4)........................................... N.A.
(a) (5)........................................... N.A.
(b)............................................... 7.8; 7.10
(c)............................................... N.A
311 (a)............................................... 7.11
(b)............................................... 7.11
(c)............................................... N.A
312 (a)............................................... 2.5
(b)............................................... 10.3
(c)............................................... 10.3
313 (a)............................................... 6.6
(b) (1)........................................... N.A.
(b) (2)........................................... 6.6
(c)............................................... 6.6
(d)............................................... 6.6
314 (a)............................................... 4.2; 4.3; 10.2
(b)............................................... N.A.
(c) (1)........................................... 10.4
(c) (2)........................................... 10.4
(c) (3)........................................... N.A.
(d)............................................... N.A
(e)............................................... 10.5
(f)............................................... N.A.
315 (a)............................................... 7.1
(b)............................................... 7.5
(c)............................................... 7.1
(d)............................................... 7.1
(e)............................................... 6.11
316 (a) (last sentence)............................... 2.9
(a) (1) (A)....................................... 6.5
(a) (1) (B)....................................... 6.4
(a) (2)........................................... N.A.
(b)............................................... 6.7
(c)............................................... 2.13
317 (a) (1)........................................... 6.8
(a) (2)........................................... 6.9
(b)............................................... 2.4
318 (c)............................................... 10.1
1. Notes: This Cross Reference Table shall not, for any purpose, be
deemed to be part of this Indenture.
2. N.A. means Not Applicable.
TABLE OF CONTENTS1
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.................... 1
SECTION 1.1. Definitions................................................... 1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act............. 14
SECTION 1.4. Rules of Construction......................................... 14
SECTION 1.5. Acts of Holders............................................... 14
ARTICLE 2 THE NOTES..................................................... 15
SECTION 2.1. Form and Dating.............................................. 15
SECTION 2.2. Execution and Authentication; Aggregate Principal Amount...... 16
SECTION 2.3. Registrar and Paying Agent.................................... 17
SECTION 2.4. Paying Agent To Hold Money in Trust. ......................... 17
SECTION 2.5. Noteholder Lists.............................................. 17
SECTION 2.6. Transfer and Exchange......................................... 18
SECTION 2.7. Replacement Notes............................................. 18
SECTION 2.8. Outstanding Notes............................................. 19
SECTION 2.9. Treasury Notes................................................ 19
SECTION 2.10. Temporary Notes............................................... 20
SECTION 2.11. Cancellation.................................................. 20
SECTION 2.12. Defaulted Interest............................................ 20
ARTICLE 3 REDEMPTION.................................................... 20
SECTION 3.1. Optional Right to Redeem; Notices to Trustee.................. 20
SECTION 3.2. Selection of the Notes or Portions Thereof to be Redeemed. ... 21
SECTION 3.3. Notice of Redemption.......................................... 21
SECTION 3.4. Effect of Notice of Redemption................................ 22
SECTION 3.5. Deposit of Redemption Price................................... 22
SECTION 3.6. Notes Redeemed in Part........................................ 23
SECTION 3.7. Special Procedures for Change in Control Offer,
Excess Proceeds Offer and Capital Infusion Offer............ 23
ARTICLE 4 COVENANTS..................................................... 26
SECTION 4.1. Payment of Principal, Premium and Interest.................... 26
SECTION 4.2. Provision of Reports and Other Information.................... 26
SECTION 4.3. Compliance Certificates....................................... 28
--------
1 This Table of Contents shall not, for any purpose, be deemed to be
part of this Indenture.
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SECTION 4.4. Further Instruments and Acts.................................. 29
SECTION 4.5. Maintenance of Office or Agency............................... 29
SECTION 4.6. Limitation on Restricted Payments............................. 29
SECTION 4.7. Limitation on Additional Indebtedness......................... 30
SECTION 4.8. Limitation on Transactions with Affiliates.................... 30
SECTION 4.9. Repurchase Upon Change in Control............................. 31
SECTION 4.10. Limitation on Use of Proceeds from Asset Sales................ 31
SECTION 4.11. Payment of Taxes and Other Claims............................. 32
SECTION 4.12. Corporate or Partnership or Other Existence................... 32
SECTION 4.13. Maintenance of Properties and Insurance....................... 32
SECTION 4.14. Stay, Extension and Usury Laws................................ 33
SECTION 4.15. Payment for Consent........................................... 33
SECTION 4.16. Covenant to Comply with Securities Laws upon Purchase
of the Notes................................................ 33
SECTION 4.17. Capital Infusion Offer........................................ 33
SECTION 4.18. Officers' Certificates........................................ 34
SECTION 4.19. Tag Along Rights.............................................. 34
SECTION 4.20. Certain Amendments to Partnership Agreement................... 34
ARTICLE 5 SUCCESSOR ENTITY.............................................. 34
SECTION 5.1. When the Company May Merge or Transfer Assets................. 34
SECTION 5.2. Surviving Entity Substituted.................................. 35
ARTICLE 6 DEFAULTS AND REMEDIES......................................... 35
SECTION 6.1. Events of Default............................................. 35
SECTION 6.2. Acceleration.................................................. 38
SECTION 6.3. Other Remedies................................................ 38
SECTION 6.4. Waiver of Past Defaults....................................... 38
SECTION 6.5. Control by Holders............................................ 39
SECTION 6.6. Limitation on Suits........................................... 39
SECTION 6.7. Rights of Holders to Receive Payment.......................... 40
SECTION 6.8. Collection Suit by Trustee.................................... 40
SECTION 6.9. Trustee May File Proofs of Claim.............................. 40
SECTION 6.10. Priorities.................................................... 41
ARTICLE 7 TRUSTEE....................................................... 41
SECTION 7.1. Duties of Trustee............................................. 41
SECTION 7.2. Rights of Trustee............................................. 42
SECTION 7.3. Individual Rights of Trustee.................................. 43
SECTION 7.4. Trustee's Disclaimer.......................................... 43
SECTION 7.5. Notice of Defaults............................................ 43
SECTION 7.6. Reports by Trustee to Holders................................. 43
SECTION 7.7. Compensation and Indemnity.................................... 43
SECTION 7.8. Replacement of Trustee........................................ 44
SECTION 7.9. Successor Trustee by Merger................................... 45
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SECTION 7.10. Eligibility; Disqualification................................. 45
SECTION 7.11. Preferential Collection of Claims Against the Company......... 46
ARTICLE 8 DISCHARGE OF INDENTURE; LEGAL DEFEASANCE
AND COVENANT DEFEASANCE..................................... 46
SECTION 8.1. Legal Termination............................................ 46
SECTION 8.2. Company's Option to Effect Legal Defeasance
or Covenant Defeasance..................................... 46
SECTION 8.3. Legal Defeasance and Discharge............................... 46
SECTION 8.4. Covenant Defeasance.......................................... 47
SECTION 8.5. Conditions to Legal Defeasance and Covenant
Defeasance................................................. 47
SECTION 8.6. Reinstatement............................................... 48
SECTION 8.7. Repayment to the Company.................................... 48
SECTION 8.8. Survival of Holders' Conversion Rights and
Company's Obligation to Provide Reports................... 49
ARTICLE 9 AMENDMENTS................................................... 49
SECTION 9.1. Without Consent of Holders................................... 49
SECTION 9.2. With Consent of Holders...................................... 49
SECTION 9.3. Compliance with Trust Indenture Act. ........................ 50
SECTION 9.4. Revocation and Effect of Consents, Waivers and Actions....... 50
SECTION 9.5. Notation on or Exchange of the Notes. ....................... 51
SECTION 9.6. Trustee to Sign Supplemental Indentures...................... 51
SECTION 9.7. Effect of Amendments and Supplemental Indentures............. 51
ARTICLE 10 MISCELLANEOUS................................................ 51
SECTION 10.1. Trust Indenture Act Controls................................. 51
SECTION 10.2. Notices...................................................... 51
SECTION 10.3. Communication by Noteholder with Other Noteholders........... 52
SECTION 10.4. Certificate and Opinion as to Conditions Precedent........... 52
SECTION 10.5. Statements Required in Certificate or Opinion................ 53
SECTION 10.6. Severability Clause.......................................... 53
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar................. 53
SECTION 10.8. Legal Holidays............................................... 53
[SECTION 10.9. Arbitration]................................................. 53
SECTION 10.10. Governing Law; Submission to Jurisdiction.................... 54
SECTION 10.11. Indenture Controls........................................... 54
SECTION 10.12. Successors................................................... 54
SECTION 10.13. Multiple Originals; Counterparts............................. 54
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ARTICLE 11 CONVERSION OF NOTES........................................... 54
SECTION 11.1. Conversion Privilege and Conversion Price..................... 54
SECTION 11.2. Exercise of Conversion Privilege.............................. 55
SECTION 11.3. .............................................................. 56
SECTION 11.4. Adjustment of Conversion Price................................ 56
SECTION 11.5. Notice of Adjustments of Conversion Price..................... 62
SECTION 11.6. Notice of Certain Partnership Action.......................... 62
SECTION 11.7. Issuance of Class A Interests................................. 63
SECTION 11.8. Taxes on Conversions.......................................... 63
SECTION 11.9. Responsibility of Trustee..................................... 63
ARTICLE 12
REPRESENTATIONS AND WARRANTIES................... 63
SECTION 12.1. Corporate/Partnership Status.................................. 63
SECTION 12.2. Corporate/Partnership Power and Authority..................... 64
SECTION 12.3. No Violation.................................................. 64
SECTION 12.4. Class A Interests Issuable upon Conversion of Notes........... 64
SECTION 12.5. Governmental Approvals........................................ 64
SECTION 12.6. Investment Company Act; Public Utility Holding Company Act.... 65
SECTION 12.7. Corporate/Partnership Structure; Capitalization............... 65
SECTION 12.8. No Default.................................................... 65
SECTION 12.9. Licenses, etc................................................. 65
SECTION 12.10.Compliance with Law........................................... 65
SIGNATURES.................................................................. 67
SCHEDULE I OUTSTANDING INDEBTEDNESS.................................... I-1
SCHEDULE II CONSENTS.................................................... II-1
SCHEDULE III CORPORATE/PARTNERSHIP STRUCTURE; CAPITALIZATION.............III-1
EXHIBIT A FORM OF NOTES................................................ A-1
EXHIBIT B CLOSING OPINION REQUIREMENTS................................. B-1
EXHIBIT C CONVERSION NOTICE............................................ C-1
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Indenture, dated as of ____________, 1996, between WORLD FINANCIAL
PROPERTIES, L.P., a Delaware limited partnership (the "Company") and The Bank of
New York, a New York banking corporation, as trustee (the "Trustee").
The parties agree as follows for the benefit of each other and for the
equal and ratable benefit of the Holders of the Company's Increasing Rate
Convertible Notes due 2004 (the "Notes") issued under this Indenture from time
to time:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquisition" means the acquisition by any Acquisition Subsidiary of a
New Property or any New Property Equity Interest.
"Acquisition Subsidiary" means any Subsidiary of the Company that is
created specifically for the purpose of acquiring a New Property or any New
Property Equity Interest or that owns at any time any direct or indirect
interest in such New Property or such New Property Equity Interest.
"Additional Partnership Interests" means any Partnership Interests
issued by the Company after the Effective Date, other than Class A Interests
issued upon conversion of any of the Notes or the Class B Interests outstanding
on the date hereof.
"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. A Person shall be deemed to "control"
(including the correlative meanings, the terms "controlling," "controlled by"
and "under common control with") a specified Person if the controlling Person
possesses (or is a member of a group (as such term is used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act as in effect on the Effective Date) that
possesses), directly or indirectly, the power to direct or cause the direction
of the management or policies of the specified Person, whether through ownership
of Equity Interests, by agreement or otherwise. For purposes of determining
whether any particular Person is an Affiliate, all warrants, options, debt
securities which are exchangeable or convertible into Equity Interests and other
rights to acquire Capital Stock or other Equity Interests that are held by such
Person (and by all other Persons who are members of a group of which such Person
is a member) shall be deemed fully exercised and/or converted.
"Agent" means the Registrar or any Paying Agent or Conversion Agent of
the Company.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including, without limitation, (a) by way of a sale-and-leaseback, merger,
consolidation or otherwise, (b) the sale, assignment or other transfer (by
merger, consolidation or otherwise) of any Equity Interests of any
Subsidiary of that Person and (c) any amendment, waiver, modification, transfer,
sale or assignment of any Management Agreement) other than (i) the issuance by
the Company or any of its Subsidiaries of its Equity Interests in a transaction
that constitutes a Capital Infusion, (ii) the lease or sublease of any real or
personal property in the ordinary course of business to existing tenants or new
tenants in respect of space to be occupied by such tenant in any building owned
by the Company or any Subsidiary of the Company, (iii) conversion of Cash
Equivalents to cash in the ordinary course of business, (iv) the consolidation
or merger of the Company or the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company, in each case in
accordance with the provisions of Section 5.1 hereof, (v) the sale, lease,
conveyance or other disposition of any assets to the Company or to any
Subsidiary of the Company that is not an Acquisition Subsidiary and that does
not have outstanding any Nonrecourse Debt or (vi) the sale, lease, conveyance or
other disposition, in a single transaction or a series of related transactions,
of any assets, the gross proceeds of which do not exceed $250,000.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing (i) the sum of the products
of the numbers of years from the date of determination to the dates of each
successive scheduled principal payment (assuming the exercise by the obligor of
such debt security of all unconditional (other than as to the giving of notice)
extension options of each such scheduled payment date) of such Indebtedness
multiplied by the amount of such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Court" means the United States District Court for the
Southern District of New York having jurisdiction over the Reorganization Cases
and, to the extent of any reference under Section 157, Title 28, United States
Code, the unit of such District Court constituted under Section 151, Title 28,
United States Code.
"Bankruptcy Law" means Title 11 of the United States Code, or any
similar Federal or state law for the relief of debtors.
"Board Resolution" shall mean, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date on such certification, and delivered to the
Trustee.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in New York, New York are authorized by law or
required by executive order to close.
"Capital Infusion" means (i) any issuance or sale by the Company or
any Subsidiary of the Company of any Equity Interest of the Company or any
Subsidiary of the Company (other than (w) the sale by the Company or any
Subsidiary of the Company of previously issued and then outstanding Equity
Interests of a Person in which the Company or the selling Subsidiary, as the
case may be, has a direct or indirect interest; (x) the capital infusion of $75
million in Cash provided to the Company by the Co-Proponents on the Effective
Date pursuant to Section
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18.12 of the Plan, (y) the conversion of Class B Interests outstanding on the
date hereof into Class A Interests as required pursuant to the Plan and
Partnership Agreement (as it exists on the date hereof) and (z) capital
contributions made by the Company or any Subsidiary of the Company to the
Company or another Subsidiary of the Company), (ii) any Indebtedness Incurred by
the Company or any Subsidiary of the Company, and (iii) any capital contribution
to the Company or any Subsidiary thereof (other than capital contributions made
by the Company or any Subsidiary of the Company to the Company or another
Subsidiary of the Company); provided, however, that none of the following shall
constitute a Capital Infusion:
(i) any Emergency Capital Infusion made in the form of a contribution
to the capital of the Company, a purchase from the Company of Equity
Interests of the Company or a purchase of Subordinated Debt from the
Company;
(ii) any Refinancing Transaction;
(iii) any transfer of assets (other than Cash) to the Company as a
capital contribution to the Company, or in exchange for Equity Interests of
the Company or Subordinated Debt, in connection with an Acquisition;
(iv) the Incurrence of any Nonrecourse Debt issued in payment of, or
to finance, the purchase price of, and actual out-of-pocket acquisition
expenses incurred by the relevant Acquisition Subsidiary in connection
with, an Acquisition, provided that the amount of the Nonrecourse Debt
issued in connection with such Acquisition does not exceed 80% of the
purchase price of the New Property or the New Property Equity Interest
acquired in such Acquisition;
(v) any Cash capital contribution to the Company, or any amount of
Cash paid to the Company in exchange for Equity Interests of the Company or
Subordinated Debt, to the extent that such Cash is used to pay a portion of
the purchase price of, and actual out-of-pocket acquisition expenses
incurred by the relevant Acquisition Subsidiary in connection with, an
Acquisition that is not paid or financed by the issuance of Nonrecourse
Debt referred to in clause (iv) above;
(vi) the Incurrence by the Company of Permitted Indebtedness;
(vii) the Incurrence of Indebtedness for borrowed money by the Company
or any Subsidiary of the Company so long as such Indebtedness is, at all
times, owed solely to the Company and Subsidiaries of the Company that are
not Acquisition Subsidiaries;
(viii) any Nonrecourse Debt Refinancing Transaction or
(ix) any Subordinated Debt Refinancing Transaction.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
which would at such time be so required to be capitalized on the balance sheet
in accordance with GAAP.
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"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock (including,
without limitation, common and preferred stock), excluding warrants, options or
other rights to acquire Capital Stock.
"Cash" means money or currency or a credit balance each in U.S.
dollars in a demand, savings, passbook, money market or like account with a
commercial bank, savings and loan association or like organization or a
government securities dealer, other than an account evidenced by a negotiable
certificate of deposit.
"Cash Equivalents" means (i) direct obligations of the United States
of America or any agency thereof having maturities of not more than one year
from the date of acquisition, (ii) time deposits and certificates of deposit of
any domestic commercial bank of recognized standing, having capital and surplus
in excess of $500 million, with maturities of not more than one year from the
date of acquisition, (iii) commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or at least P-1 or the equivalent
thereof by Xxxxx'x Investor Services, Inc., in each case maturing within one
year after the date of acquisition and (iv) shares of any money market mutual
fund, or similar fund, which invests exclusively in investments of the types
described in clauses (i) through (iii) above.
"Change in Control" means the occurrence of any of the following: (a)
any sale, lease, transfer, exchange or other disposition in one or more related
transactions of all or substantially all of (i) the assets of the Company, a
Controlling Partner or the Company's Subsidiaries or (ii) the Equity Interests
of the Company, a Controlling Partner or their respective Subsidiaries to any
Person or group (as such term is used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act as in effect on the Effective Date; for purposes of this definition
the Company and the Controlling Partners shall be deemed to be registrants
within the meaning of the Exchange Act) other than to a Person that is a Wholly
Owned Subsidiary both immediately before and immediately after giving effect to
such transactions; (b) the merger or consolidation of the Company or a
Controlling Partner with or into another Person, or the merger of another Person
into the Company or a Controlling Partner or any other transaction, with the
effect, in any such case, that the holders of Equity Interests of the Company or
a Controlling Partner, as the case may be, immediately prior to such transaction
hold 50% or less of any then outstanding class, type or form of Equity Interests
of the Company, such Controlling Partner or the surviving entity, as relevant
(other than Equity Interests referred to in clause (b) of the definition of
Equity Interests if, on a fully diluted basis, after giving effect to the
exercise, conversion or exchange of all Equity Interests referred to in such
clause (b), the holders of Equity Interests of the Company or a Controlling
Partner, as the case may be, immediately prior to such transaction would own
beneficially and of record 50% or more of each then outstanding class, type and
form of Equity Interests of the Company, such Controlling Partner or the
surviving entity, as relevant); (c) the first date on which the Co-Proponents in
the aggregate own beneficially or of record 50% or less of any then outstanding
class, type or form of Equity Interests of the Company or a Controlling Partner
(other than Equity Interests referred to in clause (b) of the definition of
Equity Interests if, on a fully diluted basis, after giving effect to the
exercise, conversion or exchange of all Equity Interests referred to in such
clause (b), the holders of Equity Interests of the Company or such Controlling
Partner, as the case may be, immediately prior to such transaction would own
beneficially and of record 50% or more of each then
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outstanding class, type and form of Equity Interests of the Company or such
Controlling Partner, as the case may be); (d) the first date on or after the
Effective Date on which the Co-Proponents in the aggregate do not have the right
to control the management and affairs of the Company and of each Controlling
Partner; or (e) the approval by a Controlling Partner or the required holders of
Equity Interests of the Company of any plan for the liquidation or dissolution
of the Company.
"Class A Interests" means Class A Units (as defined in the Partnership
Agreement (as in effect on the date hereof)) and any Equity Interests into which
such Class A Units may be changed after the Effective Date and shall also
include Equity Interests of any successor or acquiring person referred to in
Section 11.4(c) received by or distributed to the holders of such Equity
Interests in the circumstances contemplated by Section 11.4(c).
"Class B Interests" means the Class B Units (as defined in the
Partnership Agreement (as in effect on the date hereof)) issued on the Effective
Date pursuant to Section 18.1.1 of the Plan.
"Commission" means the Securities and Exchange Commission and any
successor thereto.
"Consolidated Net Worth" of the Company means consolidated interest
holders' equity as determined in accordance with GAAP.
"Controlling Partner" means any general partner of the Company or any
Person exercising similar functions if the Company is not a partnership.
"Conversion Agent" means the Trustee and any other person appointed by
the Company authorized by the Company to perform the duties of a Conversion
Agent specified in this Indenture.
"Conversion Notice" means a notice substantially in the form specified
in Exhibit C hereto.
"Convertible Securities" means evidences of indebtedness or other
securities or Equity Interests which are convertible into or exchangeable, with
or without payment of additional consideration in cash or property, for
Additional Partnership Interests, either immediately or upon the occurrence of a
specified date or a specified event.
"Co-Proponents" means, collectively, Canadian Imperial Bank of
Commerce, Dragon Holdings Limited, Citibank, N.A. and Brookfield Properties,
Inc.
"Core Properties" means, collectively, (i) that certain parcel of real
property located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, together with the
office building and other improvements existing thereon, (ii) that certain
parcel of real property located at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
together with the office building and other improvements existing thereon, (iii)
that certain parcel of real property located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
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York, together with the office building and other improvements existing thereon,
(iv) the leasehold interest in that certain parcel of real property located at
One World Financial Center, New York, New York, together with the office
building and other improvements existing thereon, (v) the leasehold interest in
that certain parcel of real property located at Two World Financial Center, New
York, New York, together with the office building and other improvements
existing thereon, and (vi) the leasehold interest in that certain parcel of real
property located at Four World Financial Center, New York, New York, together
with the office building and other improvements existing thereon; and "Core
Property" means any of the foregoing.
"CP Certificate" means a written certificate signed in the name of the
Company by two officers of a Controlling Partner and delivered to the Trustee.
"Current Market Price" as of any date with respect to any security
means the average of the Quoted Prices of such security for the twenty-five (25)
consecutive trading days (or, if such security is publicly traded but has been
so traded for less than twenty-five (25) consecutive trading days, such shorter
period in which such security has been publicly traded) immediately preceding
such date; provided, however, that, if an event described in Section 11.4(a)(i)
through 11.4(a)(iii) occurs with respect to such security during the period from
the first of such consecutive trading days through the last of such consecutive
trading days, the computation of Current Market Price shall be appropriately
adjusted to take account of such event. "Quoted Price" of any security for any
date shall be the last reported sales price (or, in case no such sale takes
place on such date, the average of the reported closing bid and ask of prices)
of such security as reported by the principal national securities exchange on
which such security is listed or traded, or as reported by the NASDAQ National
Market System, or if such security is neither so reported nor listed or traded,
the average of the last reported bid and ask prices of such security in the
over-the-counter market on such date. If such security is not listed or traded
on any national securities exchange or quoted in the over-the-counter market,
the Current Market Price of such security shall be deemed to be the fair market
value of such security as determined in good faith by the Board of Directors of
a Controlling Partner and as evidenced by a Board Resolution, which resolution
shall be delivered as soon as practicable thereafter to the Trustee; provided,
however, that if the Current Market Price of such security is being valued in
connection with any Equity Interests owned or purchased by or issued, delivered
or otherwise distributed to any of the Company's Affiliates or Related Persons,
then the Current Market Price of such security shall be determined by the
opinion of a nationally recognized investment banking firm retained by the
Debtor, which opinion shall be delivered by the Company as soon as practicable
after its issuance or delivery to the Trustee.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Effective Date" means the date of this Indenture.
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"Emergency Capital Infusion" means any Incurrence by the Company of
Subordinated Debt or any capital contribution to the Company, (i) the proceeds
of which are utilized by the Company or any Subsidiary of the Company solely to
cure an existing default on any Indebtedness secured (directly or indirectly) by
any interest in a Core Property or any other Material Asset of the Company or
such Subsidiary and (ii) as to which transaction the Company shall have
certified to the Trustee that, (a) in the absence of such transaction the cash
on hand then available to the Company and its Subsidiaries (including any credit
which may then be available under any line of credit constituting Permitted
Indebtedness) is insufficient to effect such cure or prevent such imminent
default and (b) the proceeds of such transaction do not exceed the amount
reasonably estimated by the Company to be necessary to effect such cure or
prevent such imminent default.
"Equity Interests" means (a) Capital Stock, limited or general
partnership interests or units, interests in limited liability companies, joint
venture interests and other ownership interests in any Person, and (b) warrants,
options or other rights to acquire any of the above (including debt exchangeable
or convertible into any of the above).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Excess Proceeds" means the Net Cash Proceeds of any Asset Sale that
is not used by the Company or the relevant Subsidiary of the Company as provided
in subsections (a), (b) or (c) of Section 4.10 of this Indenture within 180 days
after receipt of same by the Company or any Subsidiary of the Company.
"Exempt Subsidiary" means (a) any Significant Subsidiary that would
not be a Subsidiary if (i) it were not the record or beneficial owner, or the
operator or manager, of a Core Property referred to in clause (i) or (iv) of the
definition of Core Property, and (ii) it did not have any direct or indirect
interest in a Person that is the record or beneficial owner, or the operator or
manager, of a Core Property referred to in clause (i) or (iv) of the definition
of Core Property and (b) any Person referred to in subclause (ii)(x) or (ii)(y)
of this clause (b) if (i) by reason of a sale of an interest therein by the
Company or any of its Subsidiaries, the Company's direct and indirect Equity
Interest in any Core Property referred to in clause (ii), (iii), (v) or (vi) of
the definition of Core Property is less than 50% of the Company's direct or
indirect interest in such Core Property as of the date hereof and (ii) all
Persons (on a combined basis assuming that all of such Persons were required to
be included in the consolidated financial statements of the Company) in which
the Company has any direct or indirect interest which (x) are the record or
beneficial owner, or the operator or manager, of such Core Property, or (y) have
any direct or indirect interest in any Person that is the record or beneficial
owner, or the operator or manager, of such Core Property, would not (if
considered to be a single Subsidiary) be a Significant Subsidiary, as that term
is defined in Regulation S-X of the Securities Act of 1933, as in effect on the
date hereof.
"Full Payment Triggering Date" means the date upon which the Company
shall irrevocably deposit with the Paying Agent the purchase price for 100% of
the Notes in a Full Payment Triggering Offer.
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"Full Payment Triggering Offer" means an offer by the Company to
purchase 100% of the then outstanding Notes pursuant to the terms and provisions
of Section 3.7 of this Indenture.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
as in effect on the Effective Date.
"Holder" or "Noteholder" means a Person in whose name the Notes are
registered on the Register.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money or for the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business that are current liabilities in accordance with GAAP), (ii)
all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (iii) all reimbursement obligations of such Person in respect of
letters of credit (whether or not such letters of credit have been drawn upon)
or bankers' acceptances, (iv) all Capital Lease Obligations of such Person, (v)
all Indebtedness of others guaranteed by such Person or for which such Person is
otherwise contingently liable, and (vi) all Indebtedness of others secured by a
Lien on any property of such Person, whether or not such Indebtedness is assumed
by such Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that, to the extent provided herein or required by the TIA, are deemed to be a
part hereof.
"Investment" means, when used with respect to any Person, any direct
or indirect advance, loan or other extension of credit (other than the creation
of receivables in the ordinary course of business) or capital contribution by
such Person (by means of transfers of cash or other property to others or
payments for property or services for the account or use of others, or
otherwise) to any other Person, or any direct or indirect purchase or other
acquisition by such Person of a beneficial interest in Capital Stock, bonds,
notes, debentures, Equity Interests or other securities issued by any other
Person.
"Lien" means, with respect to any property, any mortgage, pledge,
security interest, charge, hypothecation, collateral assignment, deposit
agreement, encumbrance, lien (statutory or otherwise), or security agreement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement, other than notice filings not perfecting a security
interest, under the Uniform Commercial Code or comparable law of any
jurisdiction, domestic or foreign, in respect of any of the foregoing).
- 8 -
"Management Agreement" means any agreement that provides for or
otherwise permits the Company, any Subsidiary of the Company or Affiliate of the
Company that is controlled, directly or indirectly, by the Company to receive
any management or operating fee or leasing commission.
"Material Adverse Effect" means any material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Company or any Significant Subsidiary, either
individually or in the aggregate, (b) the rights and remedies of the Noteholders
or the Trustee hereunder or (c) the ability of the Company to perform its
obligations hereunder.
"Material Asset" means any asset of the Company or its Subsidiaries
having a fair market value of at least $20,000,000.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of Cash or Cash Equivalents, including
payments in respect of deferred payment obligations when received in the form of
Cash or Cash Equivalents, casualty loss insurance proceeds, condemnation awards
and proceeds from the conversion of other property received in connection with
any Asset Sale when converted to Cash or Cash Equivalents, net of (i) brokerage
commissions and other direct fees and expenses related to such Asset Sale
actually paid by the seller of such asset(s), (ii) provision for all taxes paid
or payable directly as a result of such Asset Sale and, (iii) amounts to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that are the subject of such Asset Sale.
"New Property" means a Grade A office building containing at least
400,000 square feet of gross floor area.
"New Property Equity Interest" means Capital Stock, limited or general
partnership interests or units, interests in limited liability companies, joint
venture interests and other ownership interests in any Person the principal
assets of which consist of one or more New Properties.
"Nonrecourse Debt" means Indebtedness of an Acquisition Subsidiary
that owns a New Property or New Property Equity Interests acquired in connection
with an Acquisition, provided that (i) such Acquisition Subsidiary shall at all
times have no [material assets] other than the New Property or New Property
Equity Interests acquired in such Acquisition and assets used in connection with
the operation of such New Property, and (ii) neither the Company nor any
Subsidiary of the Company shall at any time as to such Indebtedness (a) provide
credit support of any kind (whether by undertaking, agreement or instrument
constituting Indebtedness or otherwise) or (b) be directly or indirectly liable
(as a guarantor, partner or otherwise).
"Nonrecourse Debt Refinancing Transaction" means any Incurrence of
Nonrecourse Debt by any Acquisition Subsidiary, the net proceeds of which are
used solely to Refinance Nonrecourse Debt of such Acquisition Subsidiary;
provided, however, that the principal amount of Nonrecourse Debt so Incurred
shall not exceed the then outstanding principal amount of the Nonrecourse Debt
so Refinanced.
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"Notes" means the Increasing Rate Convertible Notes due 2004 of the
Company in the form of Exhibit A hereto issued under this Indenture in
accordance with Section 2.1.
"Noteholder" or "Holder" means a Person in whose name Notes are
registered on the Register.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee
and which opinion shall be reasonably satisfactory to the Trustee.
"Partnership Agreement" means the Limited Partnership Agreement of the
Company dated as of even date herewith by and among _______, _______ and
_________.
"Partnership Interests" means the Class A Interests and any Equity
Interest into which such Class A Interests may be changed after the Effective
Date and any other Equity Interest of the Company (regardless of how
denominated) that has the right (subject to any prior rights of any other class,
type or form of Equity Interest) to participate in any distribution of the
assets or earnings of the Company without limit as to per interest amount, and
shall also include Equity Interests of any successor or acquiring Person
referred to in Section 11.4(c) received by or distributed to the holders of
Equity Interests of the Company in the circumstances contemplated by Section
11.4(c).
"Permitted Indebtedness means Indebtedness of the Company that is
outstanding from time to time to provide working capital or other funds
necessary for the day to day operations of the Company and its Subsidiaries;
provided, however, that (i) no such Indebtedness is secured by any Lien, (ii)
the total principal amount of such Indebtedness outstanding at any time shall
not exceed $15 million, and (iii) the documentation evidencing such Indebtedness
shall require (and the Company shall comply with such requirement) that the
Company prepay all such Indebtedness such that, for a period of at least 30
consecutive days at any time during the first fiscal quarter of each fiscal
year, the aggregate outstanding principal amount of Permitted Indebtedness shall
be zero; and provided further, that Permitted Indebtedness does not include any
Indebtedness, the proceeds of which are used (in whole or in part) to Refinance
Nonrecourse Debt or Subordinated Debt.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company,
limited liability company, trust, unincorporated organization or government or
other agency or political subdivision thereof or other entity of any kind.
"Plan" means the ________ Amended Joint Plan of Reorganization, dated
______, 1996.
"Record Date," when used with respect to any Interest Payment Date,
shall mean the [fifteenth day of the month immediately preceding such Interest
Payment Date], whether or not such day is a Business Day.
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"Redemption Date" or "redemption date" means the date specified for
redemption of a Note in accordance with the terms of the Notes and this
Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in Section 3.1.
"Refinancing Transaction" means any Incurrence of Indebtedness by the
Company or any Subsidiary of the Company, the net proceeds of which are used
solely to Refinance Indebtedness (other than Nonrecourse Debt or Subordinated
Debt) of the Company or any Subsidiary of the Company that is not an Acquisition
Subsidiary; provided, however, that (i) the principal amount of Indebtedness so
Incurred by the Company shall not exceed the then outstanding principal amount
of the Indebtedness of the Company that is Refinanced by the Indebtedness so
Incurred by the Company and (ii) the principal amount of Indebtedness so
Incurred by the Company and its Subsidiaries shall not exceed the then
outstanding principal amount of the Indebtedness of the Company and its
Subsidiaries that is Refinanced by the Indebtedness so Incurred by the Company
and its Subsidiaries; and, provided further, that (x) all Indebtedness so
Incurred ranks, relative to the Notes, no more senior than the Indebtedness
being Refinanced thereby and bears interest at or below a market rate; (y) no
Indebtedness so Incurred shall be secured by any Lien on any property of the
Company except to the extent that there is a Lien on such property as security
for the Indebtedness being Refinanced, and (z) all Indebtedness so Incurred
shall have an Average Life greater than, and a stated maturity later than, the
Average Life and stated maturity, respectively, of the Indebtedness being
Refinanced.
"Related Person" of any specified Person means (i) any Affiliate of
such Person (other than a Subsidiary of the Company), (ii) any Person that owns,
directly or indirectly, 20% or more of any then outstanding class, series or
type of Equity Interests of such person, (iii) any Person that owns, directly or
indirectly, 10% of more of any then outstanding class, series or type of Equity
Interests of any Controlling Partner, or (iv) any Affiliate of a Person
described in clause (i), (ii) or (iii) of this definition.
"Reorganization Cases" means the cases commenced under Chapter 11 of
the Bankruptcy Code by certain debtors.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the Commission thereunder.
"Significant Subsidiary" means any Subsidiary of the Company that (i)
is the record or beneficial owner, or the operator or manager, of any of the
Core Properties, (ii) has any direct or indirect interest in any Person that is
the record or beneficial owner, or the operator or manager, of any of the Core
Properties, or (iii) is a Significant Subsidiary, as that term is defined under
Regulation S-X of the Securities Act of 1933, as in effect on the date hereof.
"Special Offer Purchase Price" for any Notes means a price equal to
100% of the principal amount of such Notes, plus accrued and unpaid interest to
the Special Offer Purchase Date.
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"Stated Maturity Date," when used with respect to the Notes, means the
date specified in the Notes as the fixed date on which the principal amount of
the Notes is due and payable.
"Subordinated Debt" means Indebtedness of the Company that is not
secured by any Lien, is not guaranteed, directly or indirectly, by any
Subsidiary of the Company and is fully subordinated (pursuant to terms and
conditions reasonably acceptable to the Trustee) in right of payment and
otherwise to all obligations of the Company under the Notes and this Indenture,
and, so long as any Notes are outstanding, as to which no payment shall be
required to be made or shall be made (including in respect of principal,
interest or any other amounts), and no rights or remedies may be exercised by
any holder of such Subordinated Debt.
"Subordinated Debt Refinancing Transaction" means any Incurrence of
Subordinated Debt by the Company, the net proceeds of which are used solely to
Refinance Subordinated Debt; provided, however, that the principal amount of
Subordinated Debt so Incurred shall not exceed the then outstanding principal
amount of the Subordinated Debt so Refinanced.
"Subsidiary" of any Person means any Person of which more than 50% of
the total voting power of shares of Capital Stock or other Equity Interests then
entitled (without regard to the occurrence of any contingency) to vote generally
in the election of directors, managers, trustees or general or managing partner
thereof or the right or power to direct the management or policies thereof
(through control of the relevant general partner, by contract or otherwise) is
at the time owned, controlled or otherwise possessed, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person or any
combination thereof. Notwithstanding the foregoing, the Subsidiaries of the
Company shall include each Person in which the Company has any direct or
indirect interest whatsoever, but only if such Person (i) is the record or
beneficial owner, or the operator or manager, of any of the Core Properties, or
(ii) has any direct or indirect interest in any Person that is the record or
beneficial owner, or the operator or manager, of any of the Core Properties;
provided, however, that, for purposes of the provisions of Article 4 hereof, no
Person that is not then an Affiliate that is directly or indirectly controlled
by the Company or any Related Person of the Company shall be deemed to be a
Subsidiary of the Company by reason of the provisions of this sentence.
"Tax Advance" means an advance to be made by the Company to a claims
reserve established in accordance with Section 20 of the Plan in the event that
such reserve does not have sufficient Cash to pay required taxes.2
"TIA" means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Indenture; provided, however, that in the event the
TIA is amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
--------
2 Please note that Section 20.3.4 of the Plan should be modified to make
clear that if not otherwise repaid, Tax Advances should be satisfied
from excess reserves distributed to the Co-Proponents.
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"Trust Officer," when used with respect to the Trustee, means any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"Wholly Owned Subsidiary" means any Subsidiary of the Company, all of
the outstanding Capital Stock and other Equity Interests of which is owned by
the Company (either directly or indirectly through Wholly Owned Subsidiaries).
"Withholding Advances" means amounts paid by the Company, on behalf of
a partner in the Company or an assignee of an Equity Interest in the Company, in
respect of any amount that the Company determines in its reasonable judgment is
required to be withheld under applicable law in connection with the interest of
such partner in the Company or its assignee, which amounts have not been paid or
otherwise satisfied (including by way of withholding, offset or deduction
against the interest of such partner or assignee) by such partner or assignee.
SECTION 1.2. Other Definitions. [To Be Updated]
Defined in
Term Section
"Acceleration............................ 6.2
"Act".................................... 1.5
"Capital Infusion Offer"................. 4.17
"Change in Control Offer"................ 4.9
"Commission Reports"..................... 4.2
"Conversion Agent".......................
"Conversion Price"....................... 11.1
"Covenant Defeasance".................... 8.4
"Defaulted Interest...................... 2.12
"Event of Default"....................... 6.1
"Excess Proceeds"........................ 4.10
"Excess Proceeds Offer".................. 4.10
"Furnished Information".................. 12.9
"Incur".................................. 4.7
"Interest Payment Date".................. 2.1
"Legal Defeasance"....................... 8.3
"Legal Holiday".......................... 10.8
"Offer to Purchase"...................... 3.8
"Paying Agent"........................... 2.3
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"Redemption Price"....................... 3.1
"Refinancing"............................ 4.7
"Refinancing Indebtedness"............... 4.7
"Register"............................... 2.3
"Registrar".............................. 2.3
"Special Offer".......................... 3.7
"Special Offer Amount"................... 3.7
"Special Offer Payment Date"............. 3.7
"Special Offer Triggering Event"......... 3.7
"Surviving Entity"....................... 5.1
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is, to
the extent required by the TIA, incorporated by reference in and made a part of
this Indenture. To the extent required by the TIA, all TIA terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule have the meanings assigned to them by such
definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
(1) A term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in the plural
include the singular; and
(6) "herein," "hereof" and other words of similar nature refer to this
Indenture as a whole and not to any particular or individual article, section or
part of an article or section (unless the context clearly otherwise requires).
SECTION 1.5. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by 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, in which instruments such Holders shall certify as to
whether they are Affiliates of the Company; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are
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delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Company
if made in the manner provided in this Section.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee reasonably
deems sufficient.
(3) The ownership of the Notes shall be proved by the Register as of
the record date for such action.
(4) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act, the Company may,
at its option, by or pursuant to resolutions of its Controlling Partners, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. 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 record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of the Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act; provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture or such authorization, agreement or consent not
later than six months after the record date.
(5) In connection with every Act of Holders and otherwise as
reasonably requested by the Trustee (but in any case no less frequently than
semi-annually), the Company shall be required to deliver a CP Certificate which
identifies each Note (or portion thereof) held of record or beneficially by or
for each Affiliate of the Company or any Subsidiary of the Company (as of the
relevant record date, if any).
ARTICLE 2
THE NOTES
SECTION 2.1. Form and Dating. The Notes and the Trustee's certificate
of authentication thereon shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rules or agreements to which the Company is subject, if any. The
Company shall approve the form of the Notes and any notation, legend or
endorsement thereon, and such approval shall be evidenced by the execution of
such Notes by a Controlling Partner. The Notes shall be dated the date of their
authentication. The Notes shall bear interest from the earlier of the Effective
Date and December 1, 1996 at the rate per annum provided therein, payable
quarterly on __________,
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________, _________ and ____________of each year, commencing with the first such
date after the Effective Date (each such date, an "Interest Payment Date"),
shall mature on __________, 2004, and shall be issuable as registered Notes
without coupons in denominations of $1,000 and any integral multiple thereof.3
The terms and provisions contained in the form of the Notes, annexed
hereto as Exhibit A, shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.2. Execution and Authentication; Aggregate Principal Amount.
Two officers of a Controlling Partner shall sign the Notes for the Company by
facsimile or manual signature. The Controlling Partner's corporate seal, if any,
may be reproduced or imprinted on the Notes.
If a Person whose signature is on the Notes no longer holds that
office or position at the relevant Controlling Partner at the time the Trustee
authenticates the Notes, the Notes shall nevertheless be valid. In addition, if
a Person does not hold an office or position at the time the Notes are
authenticated, but holds such office or position on or prior to the delivery of
the Notes, the Notes shall nevertheless be valid. If the Controlling Partner
whose officers signed the Notes for the Company is no longer a Controlling
Partner at the time the Trustee authenticates the Notes, the Notes shall
nevertheless be valid.
The Notes shall not be valid until the Trustee manually signs the
certificate of authentication on the Notes. The Trustee's signature shall be
conclusive evidence that the Notes have been authenticated under this Indenture.
The Trustee shall authenticate for original issuance up to $__________
in aggregate principal amount of Notes upon receipt of (i) a written order of
the Company signed by two officers of a Controlling Partner and (ii) an Opinion
of Counsel addressed to the Trustee and the Noteholders in substantially the
form attached hereto as Exhibit B. The written order shall specify the amount of
the Notes to be authenticated, the date on which the Notes are to be
authenticated, the names, addresses and denominations in which the Notes shall
be registered and to whom the Notes shall be delivered. The aggregate principal
amount of the Notes outstanding at any time under this Indenture may not exceed
$__________ , except as provided in Section 2.7 of this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate the Notes, which authenticating agent shall be
compensated by the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate -------- 3 This assumes that the
Confirmation Order will provide that in lieu of issuing Notes in denominations
of less than $1,000, the Company will pay to each unsecured creditor an amount
of cash equal to the principal amount of the Note that otherwise would have been
issued to such unsecured creditor.
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the Notes whenever the Trustee may do so. Except as provided in the preceding
sentence, each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
rights as any Agent to deal with the Company or any Affiliate of the Company.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an
office or agency within the City of New York, Borough of Manhattan, where the
Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where the Notes may be presented for
payment ("Paying Agent"). Unless otherwise designated by the Company, the
Company's office or agency maintained for such purpose in the City of New York,
Borough of Manhattan, will be the office of the Trustee. The Notes will be
payable both as to principal and interest at the office of the Paying Agent. The
Registrar shall keep a register of the Notes, the names and addresses of the
Noteholders and of the transfer and exchange of the Notes (the "Register"). The
Company may have one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. Notwithstanding anything to the contrary
contained herein, neither the Company nor any Subsidiary or Affiliate of the
Company may serve as the Paying Agent.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture. Each such agreement shall
implement the provisions of this Indenture that relate to such Agent and shall
incorporate the provisions of the TIA. The Company shall give prompt written
notice to the Trustee and the Holders of the name and address of any such Agent
and any change in the address of such Agent. The Company may change an Agent
without prior notice to the Holders. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to receive appropriate compensation therefor in accordance with Section 7.7 of
this Indenture.
The Company initially appoints the Trustee to act as Conversion Agent,
Registrar and Paying Agent.
SECTION 2.4. Paying Agent To Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust in immediately available funds for the benefit
of Noteholders all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and such Paying Agent shall notify
the Trustee in writing of any default by the Company in making any such payment.
The Company at any time may require a Paying Agent to pay all money held by it
as Paying Agent to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it as Paying Agent to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent shall have no further liability for
the money so paid over to the Trustee.
SECTION 2.5. Noteholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Noteholders and shall otherwise comply with the
provisions of TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least
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five Business Days before each Interest Payment Date and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the
Noteholders, and the Company shall otherwise comply with the provisions of TIA
ss. 312(a).
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or another Paying Agent, as the case may be, as to the
names and addresses of the Noteholders and the principal amount of the Notes.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of the Notes. The transfer and exchange of
the Notes shall be in accordance with this Indenture.
(b) General Provisions Relating to Transfers and Exchanges of the
Notes.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the
Company's request in accordance with the provisions of Section
2.2 hereof.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Company may
require from the Holder payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer tax or
similar governmental charge payable upon exchanges, which shall
be paid by the Company).
(iii) All Notes issued upon any registration of transfer or exchange
of the Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
(iv) Prior to due presentment for the registration of a transfer of
the Notes, the Trustee, any Agent and the Company may deem and
treat the Person in whose name the Notes are registered as the
absolute owner of the Notes for the purpose of receiving
payment of principal of, interest on, and premium, if any, on
the Notes and neither the Trustee, any Agent nor the Company
shall be affected by notice to the contrary.
SECTION 2.7. Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if the Company and the Trustee receive evidence to their
satisfaction that a Note has been lost, destroyed or wrongfully taken, the
Company shall issue a replacement Note, and the Trustee shall authenticate such
replacement Note if the Trustee's requirements are met. If required by the
Trustee or the Company, an indemnity bond shall be provided by the Noteholder
that is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss which
any
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of them may suffer if the Note is replaced. The Company and the Trustee may
charge such Holder for their expenses in replacing the Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.8. Outstanding Notes. Notes outstanding at any time are all
Notes that have been authenticated by the Trustee, except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.8 as not outstanding. Notwithstanding anything to the contrary contained in
this Indenture (except as set forth in Section 2.9 hereof), neither the Company
nor any Affiliate of the Company shall be counted in respect of any Acts of
Holders or for purposes of determining whether Holders of the requisite portion
of Notes have authorized or agreed or consented to a request, direction, notice,
consent or waiver, or denied authorization with respect to any matter requiring
the agreement, consent, authorization or waiver of the Holders and all Notes
held by the Company or any Affiliate of the Company shall be deemed not to be
issued and not to be outstanding for purposes thereof. Except as specifically
provided herein, such Notes do not cease to be outstanding for other purposes
under this Indenture solely because an Affiliate of the Company owns the Notes
of record or beneficially.
If any Note is replaced pursuant to Section 2.7, such Note shall cease
to be outstanding as of the date it is replaced, unless the Trustee receives
proof satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the principal of, interest on, or Defaulted Interest, if any, or
premium, if any, on any Notes is considered paid under Section 4.1 hereof, such
amount shall cease to be outstanding, and any interest on such amount ceases to
accrue as of the date of such payment.
If any Note is redeemed, repurchased or converted, the principal
amount of such Note so redeemed, repurchased or converted shall cease to be
outstanding and interest thereon shall cease to accrue as of the date of such
payment.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or Stated Maturity Date, money sufficient,
in immediately available funds, to pay all principal of, interest on and
premium, if any, payable on that date with respect to the Notes (or the portion
thereof to be redeemed or maturing, as the case may be), then on and after that
date such Notes (or portions thereof) shall no longer be deemed to be
outstanding and shall cease to accrue interest.
Upon a "Legal Defeasance" pursuant to Article 8, the Notes shall be
deemed to be outstanding to the extent provided in the applicable Section of
Article 8 hereof.
SECTION 2.9. Treasury Notes. In determining whether the Holders of the
required principal amount of the Notes have concurred in any Act of Holders,
request,
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demand, authorization, direction, notice, waiver, consent or other action,
record and beneficial interests in the Notes owned by the Company or any
Affiliate of the Company and the voting rights related to such beneficial
interests in the Notes shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only interests in the Notes that are listed as so
owned in the CP Certificate required to be delivered pursuant hereto shall be so
disregarded.
SECTION 2.10. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare, and the Trustee shall authenticate, upon
written order of the Company signed by two officers of a Controlling Partner,
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company reasonably considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare, and the Trustee shall authenticate, definitive Notes in exchange for
temporary Notes.
Until such exchange, such temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation. The Company at any time may deliver Notes
to the Trustee for cancellation. The Conversion Agent, Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for conversion,
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
conversion or cancellation and the Trustee shall dispose of such Notes as
directed in writing by the Company. The Company may not issue new Notes to
replace Notes it has paid for or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, it shall pay the defaulted interest in U.S. dollars in
immediately available funds, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the Persons who are Noteholders on a
subsequent special record date, in each case at the rate provided in the Notes
("Defaulted Interest"). Such special record date shall be the tenth day next
preceding the date fixed by the Company for the payment of Defaulted Interest,
whether or not such special record date is a Business Day. At least 15 days
before the special record date, the Company shall mail or cause to be mailed to
each Noteholder and the Trustee a notice that states the special record date,
the payment date and the amount of Defaulted Interest to be paid.
ARTICLE 3
REDEMPTION
SECTION 3.1. Optional Right to Redeem; Notices to Trustee.
(a) At any time on or after the date hereof to and including the
second anniversary of the Effective Date, the Company, at its option, may redeem
the Notes in
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whole or in part for Cash in accordance with this Section 3.1, at a redemption
price equal to 100% of the principal amount thereof outstanding at the
Redemption Date, plus accrued and unpaid interest to the Redemption Date (the
"Redemption Price"). Immediately following the close of business on the second
anniversary of the Effective Date, this right to redeem Notes shall terminate
and the Company shall have no other optional redemption rights.
(b) If the Company elects to redeem the Notes or a portion thereof
pursuant to this Article 3, it shall notify the Trustee in writing of its
election to redeem the Notes, at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) and shall deliver
to the Trustee a CP Certificate setting forth the Redemption Date, the principal
amount of Notes to be redeemed and the Redemption Price.
SECTION 3.2. Selection of the Notes or Portions Thereof to be
Redeemed. If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the portions of the Note to be redeemed, on a substantially
pro rata basis rounding up or down to the nearest $1,000 in aggregate principal
amount. The Trustee shall make the selection at least 35 but not more than 65
days before the Redemption Date from the Notes not previously called for
redemption. The Notes and portions thereof selected for redemption by the
Trustee shall be in principal amounts of $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the Notes called for
redemption also apply to portions of the Notes called for redemption. The
Trustee shall notify the Company promptly in writing which Notes or portions of
the Notes are to be redeemed and, in the case of Notes selected for partial
redemption, the principal amount thereof to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first-class mail, postage prepaid, to Holders of the
Notes at the Holders' last addresses, as they shall appear on the Register. A
copy of such notice shall be mailed to the Trustee on the same day the notice is
mailed to Holders unless the Trustee mails such notice to the Holders on behalf
of the Company.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
(4) if a Note is being redeemed in part, the portion of the principal
amount of the Note to be redeemed and that on and after the Redemption Date,
upon surrender of the Note, the Trustee's records will reflect such decrease in
the principal amount and a new Note or Notes in principal amount equal to the
unredeemed portion will be issued;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
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(6) that unless the Company defaults in making the redemption payment,
interest will cease to accrue on the Notes or portions thereof called for
redemption on and after the Redemption Date;
(7) the Conversion Price then in effect, that the Notes may be
converted pursuant to the provisions of Article 11 hereof at any time prior to
the close of business on the Redemption Date and that the conversion right will
expire in respect of the Notes or portions thereof called for redemption upon
the close of business on the Redemption Date unless the Company defaults in
making the redemption payment.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense within 15 days of
such request; provided, however, that (i) in all cases, the text of such notice
of redemption shall be prepared or approved by the Company and the Trustee shall
have no responsibility whatsoever with regard to such notice being accurate or
correct (except for the selection of the portions of the Notes for redemption
pursuant to Section 3.2) and (ii) the Company shall deliver to the Trustee, at
least 45 days prior to the Redemption Date (unless a shorter period shall be
agreed to by the Trustee), a CP Certificate requesting that the Trustee give
such notice and setting forth the information to be stated in such notice.
SECTION 3.4. Effect of Notice of Redemption. Once notice of redemption
is given, Notes or portions thereof called for redemption become due and payable
on the Redemption Date and at the Redemption Price. Upon the later of the
Redemption Date and the date the Notes or portions thereof are surrendered to
the Paying Agent, the Notes or portions thereof called for redemption shall be
paid at the Redemption Price, if money in immediately available funds sufficient
for that purpose has been deposited as provided in Section 3.5 hereof. If a
Redemption Date is on or before an Interest Payment Date and after the related
Record Date for such Interest Payment Date, any interest accrued and unpaid to
the Redemption Date shall be paid on such Interest Payment Date to the Person in
whose name the Notes are registered at the close of business on such Record Date
and the only remaining right of the Holder of the Notes or portions thereof
called for redemption shall be to receive the Redemption Price, excluding all
accrued interest thereon, upon surrender of such Notes to the Paying Agent.
Notice of redemption shall be deemed to be given when mailed by first
class mail to each Holder at its latest registered address, whether or not any
such Holder receives the notice.
SECTION 3.5. Deposit of Redemption Price. On or prior to the
Redemption Date, the Company shall irrevocably deposit with the Paying Agent in
immediately available funds money sufficient to pay the Redemption Price of the
Notes or portions thereof to be redeemed on that date other than portions of the
Notes called for redemption which prior thereto have been delivered by the
Company to the Trustee for cancellation or delivered to the Trustee by the
Holder thereof for conversion pursuant to Article 11 hereof. If any Note called
for redemption is converted pursuant hereto, any money deposited with the
Trustee or any Paying Agent for the Redemption Price of such
- 22 -
Note shall be paid to the Company upon the Company's written request. The Paying
Agent shall return to the Company any money deposited with the Paying Agent by
the Company in excess of the amounts necessary to pay the Redemption Price of,
and accrued interest on, all Notes or portions thereof to be redeemed.
If the Company complies with the preceding paragraph, interest on the
Notes or portions thereof to be redeemed, whether or not the Notes are presented
for payment, will cease to accrue on the applicable Redemption Date. If any Note
called for redemption is not paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date and such Note shall remain convertible until the principal of
such Note and accrued interest shall have been paid or duly provided for.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of the Notes that
are redeemed in part, the Company shall issue, and the Trustee shall
authenticate and make available for delivery to the Holder, new Notes in an
authorized denomination equal in principal amount to the unredeemed portion of
the Notes surrendered.
SECTION 3.7. Special Procedures for Change in Control Offer, Excess
Proceeds Offer and Capital Infusion Offer. The following provisions shall apply
notwithstanding any other provision of this Article 3:
Within 30 days following any Change in Control or the occurrence of an
event which mandates an Excess Proceeds Offer or a Capital Infusion Offer (any
such event or Change in Control hereinafter referred to as a "Special Offer
Triggering Event"), the Company shall mail, by first class mail, to each Holder
at its last registered address, with a copy to the Trustee, a notice, which
shall govern the relevant Change in Control Offer, Excess Proceeds Offer or
Capital Infusion Offer (each one of which is hereinafter referred to as a
"Special Offer"), containing all instructions and materials necessary to enable
the Holders to tender the Notes or portions thereof pursuant to the Special
Offer, and shall state:
(i) that the Special Offer is being made pursuant to Section 4.9,
4.10 or 4.17, as applicable, and, in the case of a Change in
Control Offer, that all issued and outstanding Notes properly
tendered and not subsequently withdrawn will be accepted for
payment and paid for by the Company or, in the case of an
Excess Proceeds Offer or a Capital Infusion Offer, the amount
of the Excess Proceeds or Capital Infusion, as applicable, to
be applied to the purchase of Notes (the "Special Offer
Amount") pursuant to such Excess Proceeds Offer or such Capital
Infusion Offer and the aggregate principal amount of Notes then
outstanding;
(ii) the Special Offer Purchase Price in such Special Offer and the
purchase date (the "Special Offer Payment Date"), which date
shall not be less than 21 Business Days nor more than 31
Business Days following the date such notice is mailed,
provided that the Special Offer Payment Date shall in no event
be later than 60 days (or up to an additional 30
- 23 -
days to the extent required by applicable law) after the
Special Offer Triggering Event;
(iii) that the Notes or portions thereof not tendered (or which are
tendered but subsequently withdrawn by the Holder prior to
acceptance for payment by the Company or, in the case of an
Excess Proceeds Offer or a Capital Infusion Offer, not accepted
for payment by reason of the proration provisions of such
Offer) will continue to accrue interest and shall continue to
be governed by the terms of this Indenture in all respects;
(iv) that, unless the Company defaults in the payment thereon, the
Notes or portions thereof that are tendered and not timely
withdrawn by Holders and accepted for payment pursuant to the
Special Offer will cease to accrue interest from and after the
Special Offer Payment Date;
(v) that Holders electing to have the Notes (or portions thereof)
purchased pursuant to a Special Offer will be required to
surrender the Notes, accompanied by such customary documents of
surrender and transfer as the Company reasonably may request,
duly completed, to the Trustee at the address of the Trustee
specified in the notice of the Special Offer prior to the close
of business on the Business Day immediately preceding the
Special Offer Payment Date;
(vi) that Holders will be entitled to withdraw or modify their
election if the Trustee receives at the address or facsimile
number, as applicable, of the Trustee specified in the notice
of the Special Offer, not later than the close of business on
the Business Day immediately preceding the Special Offer
Payment Date, a facsimile transmission or letter setting forth
the name of the Holders, the principal amount of the Notes (or
portions thereof) the Holders delivered for purchase, and a
statement that such Holders are withdrawing or modifying their
election to have all or part of such Notes (or portions
thereof) purchased;
(vii) that a Holder whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered, provided that the Notes or
portions thereof purchased and each of such new Notes issued
shall be in a principal amount of $1,000 or an integral
multiple thereof;
(viii) in the case of a Change in Control Offer, the circumstances and
material facts regarding the Change in Control, including but
not limited to information with respect to the historical
consolidated and combined financial information of the Company
and its Subsidiaries and pro forma consolidated and combined
financial information of the Company and its Subsidiaries after
giving effect to the Change in
- 24 -
Control, information regarding any Person or Persons acquiring
control, to the extent reasonably available, and the business
plans of such Person or Persons with respect to the Company, to
the extent reasonably available;
(ix) in the case of an Excess Proceeds Offer or a Capital Infusion
Offer, that if the Notes (or portions thereof) in an aggregate
principal amount exceeding the Special Offer Amount, as
applicable, are duly surrendered (and not withdrawn), the
Company shall purchase Notes on a pro rata basis (with such
adjustments as may be deemed appropriate by the Company so that
Notes shall be purchased only in principal amounts of $1,000 or
integral multiples thereof);
(x) the Conversion Price then in effect, the Class A Interests into
which the Notes may then be converted, that the Notes may be
converted pursuant to the provisions of Article 11 hereof at
any time and that such conversion right will expire with
respect to the Notes (or the portion thereof) duly surrendered
(and not withdrawn) and accepted for payment by the Company
unless the Company defaults in the payment of the Special Offer
Purchase Price; and
(xi) in the case of a Special Offer that constitutes a Full Payment
Triggering Offer (whether pursuant to a Change in Control Offer
or otherwise), that from and after the Full Payment Triggering
Date relating thereto, the Company shall no longer be required
to comply with the covenants contained in Section 4.6
(Limitation on Restricted Payments), Section 4.7 (Limitation on
Additional Indebtedness) or Section 4.17 (Capital Infusion
Offer).
On or before the Special Offer Payment Date, the Company shall (i)
deposit with the Trustee or the Paying Agent immediately available funds
sufficient to pay the Special Offer Purchase Price of the Notes or portions
thereof accepted for payment, (ii) deliver or cause to be delivered to the
Trustee a CP Certificate specifying the Notes or portions thereof accepted for
payment, respectively, and (iii) accept for payment the Notes or portions
thereof tendered and not theretofore withdrawn, pursuant to the Special Offer,
except that, in the case of an Excess Proceeds Offer or Capital Infusion Offer,
the principal amount of the Notes accepted for payment need not exceed the
Special Offer Amount. The Trustee shall promptly mail to each Holder of the
Notes so tendered payment in an amount equal to the Special Offer Purchase Price
for such Notes or portions thereof accepted for payment, respectively, and, and
with respect to the Notes accepted for payment in part the Company shall issue
and the Trustee shall promptly authenticate and mail to such Holder one or more
certificates evidencing new Notes equal in principal amount to any unpurchased
portion of the Notes surrendered. The Notes or portions thereof purchased
pursuant to a Special Offer will be cancelled by the Trustee. The Company will
publicly announce the results of any Special Offer on or as soon as practicable
after the Special Offer Payment Date.
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ARTICLE 4
COVENANTS
SECTION 4.1. Payment of Principal, Premium and Interest.
(a) The Company shall pay the principal of, interest on, and premium,
if any, on the Notes on (or prior to) the dates and in the manner provided in
the Notes or pursuant to this Indenture. An installment of principal, premium,
if any, or interest shall be considered paid on the applicable date due, if on
such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money, in immediately available funds, sufficient to pay all of such
installment then due no later than 12:00 noon on such date. The Company shall
pay interest on overdue principal and premium, if any, and, to the extent
permitted by applicable law, interest on overdue installments of interest (in
each case, including interest accruing on or after the commencement of a
bankruptcy or reorganization proceeding relating to the Company or the filing of
a petition relating to the same, whether or not a claim for such interest is
allowed or allowable in such proceeding), to the extent lawful, at the rate per
annum borne by the Notes plus 2%, which interest on overdue interest and/or
principal shall accrue from the date such amounts became overdue.
[(b) Upon the written request of any Holder that holds at least
$______ in aggregate outstanding principal amount of Notes, and notwithstanding
anything contained in this Indenture or in the Notes to the contrary, the
Company shall pay all amounts becoming due on such Notes for principal, premium,
if any, and interest by the method and at the address specified for such purpose
in such notice, or by such other method or at such other address as such Holder
may from time to time specify to the Company in writing for such purpose.]
SECTION 4.2. Provision of Reports and Other Information.
(a) So long as any Notes remain outstanding, the Company shall cause
copies of all quarterly and annual reports and of the information, documents and
other reports which the Company is required to file with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act ("Commission Reports") to be
delivered to the Trustee and mailed to the Holders at their addresses appearing
in the Register, in each case, within 5 days of filing with the Commission. If
for any reason the Company is not subject to the requirements of Section 13(a)
or 15(d) of the Exchange Act or shall cease to be required by the Commission to
file Commission Reports, the Company shall prepare and file with the Trustee and
mail to the Holders at their addresses appearing in the Register:
(i) not later than 45 days after the close of each fiscal quarter of
the Company ending on _______________, ______________, and
________________, a report containing substantially the same information as
is required to be included in a report on Form 10-Q promulgated by the
Commission pursuant to the Exchange Act; and
- 26 -
(ii) not later than 120 days after the close of each fiscal year of
the Company a report containing substantially the same information as is
required to be included in a report on Form 10-K promulgated by the
Commission pursuant to the Exchange Act;
provided, however, that in respect of the foregoing reports (a) the form of
financial statements included therein need not comply with the provisions of
Regulation S-X (but shall nevertheless be prepared in accordance with GAAP), (b)
the Company need not include any pro forma financial statements for periods
prior to the Effective Date, (c) no reporting of the matters contemplated in
Item 402 of Regulation S-K shall be required, except that [summary information
as to the compensation from the Company and its Subsidiaries of the five highest
paid executive officers of the Company and of all executive officers of the
Company as a group shall be supplied], (d) substantially the same information
that would otherwise have been required to be included in a Form 8-K if the
Company were required to file Commission Reports shall be included in the next
report referred to in clause (i) or (ii) above, (e) such reports shall include
exhibit lists listing the same exhibits as are required to be listed in a report
on Form 8-K, Form 10-Q or Form 10-K, as the case may be, and (f) any Noteholder
shall be entitled to obtain from the Company a copy of any exhibit so listed or
required to be listed. For purposes of providing Commission Reports that comply
with rules and regulations issued by the Commission pursuant to Section 13(a) or
15(d) of the Exchange Act, the Company shall be deemed to be a "registrant"
within the meaning of Rule 12b-2 of the Exchange Act. The Company shall make all
such information available to investors who request it in writing. The Company
shall also comply with the provisions of TIA ss. 314(a).
(b) So long as any Notes remain outstanding, the Company shall cause
copies of all reports, information and notices furnished or made available to
partners of the Company generally to be delivered to the Trustee and mailed to
the Holders at their addresses appearing in the Register, in each case promptly
after they are so furnished or made available.
(c) So long as any Notes remain outstanding, the Company shall cause
notice of each amendment, modification or waiver of or to the Partnership
Agreement (as it may be amended from time to time) to be delivered to the
Trustee and mailed to the Holders at their addresses appearing in the Register.
At the request of any Holder or the Trustee, the Company shall deliver to the
Trustee and to such Holder at its address appearing in the Register a true and
complete copy of the Partnership Agreement, as amended through the date of
delivery thereof.
(d) So long as any Notes remain outstanding, the Company shall cause
notice of any proposed amendment, modification or waiver of or to the
Partnership Agreement referred to in the proviso to the first sentence of
Section 11.01(b), or in the second sentence of Section 11.01(b), of the
Partnership Agreement (as in effect on the date hereof) to be delivered to the
Trustee and mailed to the Holders at their addresses appearing in the Register,
in each case at such a time and in such a manner to enable Holders to consummate
the conversion of their Notes pursuant to Article 11 hereof on a date at least
15 days prior to any vote on such amendment, modification or waiver.
- 27 -
(e) So long as any Notes remain outstanding, the Company shall cause
to be delivered to the Trustee and mailed to Holders at their addresses
appearing in the Register, together with reports delivered pursuant to Section
4.2(a), a report identifying each Subsidiary of the Company that became an
Exempt Subsidiary during the relevant reporting period and each Exempt
Subsidiary ceased to be an Exempt Subsidiary during such period. Such notice
shall identify the relevant Subsidiary and the date of such change in status.
(f) If the Company instructs the Trustee to distribute any of the
documents described in clause (a), (b), (c), (d) or (e) above to the
Noteholders, the Company shall provide the Trustee with a sufficient number of
copies of all such documents that the Company may be required to deliver to the
Noteholders under this Section 4.2.
SECTION 4.3. Compliance Certificates.
(a) The Company shall deliver to the Trustee and mail to the Holders
at their addresses appearing in the Register within 60 days after the end of
each fiscal quarter and 120 days after the end of each of the Company's fiscal
years (which as of the date hereof is ___________) a CP Certificate stating
whether or not the Company or any Controlling Partner knows of any Default or
Event of Default which occurred during such preceding fiscal period or occurred
in any other fiscal period and is continuing. Such certificate shall contain a
certification from each Controlling Partner as to its knowledge of the Company's
compliance with all conditions and covenants under this Indenture during such
preceding fiscal year and shall otherwise comply with TIA Section 314(a)(4). If
a Controlling Partner knows of a Default or Event of Default, the certificate
shall describe any such Default or Event of Default, and its status.
(b) So long as it is not contrary to the then current recommendation
of the American Institute of Certified Public Accountants and so long as the
Company's accountants provide similar statements to other companies, the Company
shall deliver to the Trustee and mail to the Holders at their addresses
appearing in the Register within 120 days after the end of each fiscal year a
written statement by the Company's independent certified pubic accountants
stating (A) that their audit examination has included a review of the terms of
this Indenture and the Notes as they relate to accounting matters, and (B)
whether, in connection with their audit examination, any Default has come to
their attention and, if such a Default has come to their attention, specifying
the nature and period of the existence thereof; provided, however, that the
independent certified public accountants delivering such statement shall not be
liable in respect of such statement by reason of any failure to obtain knowledge
of any such Default or Event of Default that would not be disclosed in the
course of an audit examination conducted in accordance with GAAP. In the absence
of actual notice to the contrary, the Trustee shall be entitled to rely upon the
aforementioned statement of the Company's independent public accountants and
shall not be liable to anyone with respect thereto.
(c) The Company shall deliver to the Trustee and mail to the Holders
at their addresses appearing on the Register as soon as possible and in any
event within 10 Business Days after the Company or a Controlling Partner becomes
aware of the occurrence
- 28 -
of a Default or Event of Default, which is continuing, a CP Certificate setting
forth the details of such Default or Event of Default, and the action which the
Company proposes to take with respect thereto.
(d) The Company shall deliver to the Trustee any information
reasonably requested by the Trustee in connection with the compliance by the
Trustee or the Company with the TIA.
SECTION 4.4. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.5. Maintenance of Office or Agency. The Company will
maintain or cause to be maintained, within the City of New York, Borough of
Manhattan, an office or agency (which may be an office of the Trustee, Registrar
or Paying Agent) where the Notes may be presented or surrendered for payment,
where the Notes may be surrendered for registration of transfer, exchange,
conversion or redemption and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The corporate trust
office of the Trustee at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department - Administration, shall initially be such
office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of any change of location of such office or
agency. If at any time the Company shall fail to maintain or cause to be
maintained 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 address of the Trustee set forth in Section
10.2 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that any such designation or rescission shall not in any manner relieve
the Company of its obligation to maintain an office or agency within the City of
New York, Borough of Manhattan. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in location
of any such other office or agency.
SECTION 4.6. Limitation on Restricted Payments. Until the Full Payment
Triggering Date, the Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, (i) make any distribution on account of or in respect of
any Equity Interests issued by the Company (other than Tax Advances, Withholding
Advances and distributions by the Company of Equity Interests issued by it
pursuant to an executive compensation plan adopted after the Effective Date by
the Controlling Partners); (ii) purchase, repurchase, redeem or otherwise
acquire or retire for value any Equity Interest issued by the Company (other
than the Notes pursuant hereto); or (iii) purchase, repurchase, redeem, prepay,
defease, or otherwise acquire or retire for value, or make any payment of
principal, interest or other amounts on or with respect to, any Indebtedness of
the Company
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that is subordinated in right of payment to the Notes; provided, however, that
none of the foregoing shall prohibit the conversion of Class B Interests
outstanding on the date hereof into Class A Interests pursuant to the terms of
the Partnership Agreement (as it exists on the date hereof).
SECTION 4.7. Limitation on Additional Indebtedness. Until the Full
Payment Triggering Date, the Company shall not, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable for the payment of, contingently or otherwise (collectively, "Incur"),
any Indebtedness.
The foregoing limitation of this Section 4.7 shall not apply to:
(i) Indebtedness of the Company under this Indenture or represented by
the Notes; (ii) Indebtedness of the Company specifically contemplated by
the Plan to be outstanding on the Effective Date as listed on Schedule I
hereto; (iii) Indebtedness that constitutes a Capital Infusion in respect
of which the Company has fully complied with Sections 3.7 and 4.17 hereof;
(iv) Indebtedness Incurred in exchange for, or the proceeds of which are
used to extend, refinance, renew, replace, substitute or refund
(collectively, "Refinance"), Indebtedness permitted by clauses (i), (ii),
(iii) and (iv) of this Section 4.7 (the "Refinancing Indebtedness");
provided, however, that (A) the principal amount of such Refinancing
Indebtedness shall not exceed the then outstanding principal amount of the
Indebtedness so extended, refinanced, renewed, replaced, substituted or
refunded (including the reasonable out-of-pocket costs of issuance), (B)
such Refinancing Indebtedness ranks, relative to the Notes, no more senior
than the Indebtedness being Refinanced thereby, (C) such Refinancing
Indebtedness bears interest at a market rate, (D) such Refinancing
Indebtedness shall not be secured by any Lien on any property of the
Company except to the extent that there is a Lien on such property as
security for the Indebtedness being Refinanced, and (E) such Refinancing
Indebtedness (1) shall have an Average Life greater than and a stated
maturity later than, the Average Life and stated maturity, respectively, of
the Indebtedness being Refinanced or (2) shall not have a scheduled
maturity, principal repayment, sinking fund payment or mandatory redemption
on or prior to the maturity of the Notes; (v) Subordinated Debt referred to
in clause (iii) or (v) of the proviso at the end of the definition of
Capital Infusion; (vi) Indebtedness Incurred by the Company in exchange
for, or the proceeds of which are used to Refinance, Indebtedness permitted
by clause (v) of this Section 4.7 (the "Subordinated Debt Refinancing
Indebtedness"); provided, however, that (A) the principal amount of such
Subordinated Debt Refinancing Indebtedness shall not exceed the then
outstanding principal amount of the Subordinated Debt so Refinanced and (B)
such Subordinated Debt Refinancing Indebtedness shall be Subordinated Debt;
(vii) Indebtedness for borrowed money of the Company owing to Subsidiaries
of the Company that are not Acquisition Subsidiaries, as referred to in
clause (vii) of the proviso at the end of the definition of Capital
Infusion; and (viii) Permitted Indebtedness.
SECTION 4.8. Limitation on Transactions with Affiliates. Neither the
Company nor any of its Subsidiaries shall enter into or suffer to exist any
transaction or
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series of related transactions with any Related Person of the Company
(including, without limitation, the making of any Investment or guarantee in,
to, or for the benefit of, any such Related Person, the sale, lease, transfer or
other disposition of any properties or assets to, or for the benefit of, any
such Related Person or the purchase or lease of any property or assets from, any
such Related Person), unless (i) such transaction or series of transactions is
on terms that are no less favorable to the Company or the relevant Subsidiary,
as the case may be, than those that could have been obtained in a comparable
transaction on an arm's length basis from a Person that is not a Related Person
of the Company and (ii) with respect to any transactions or series of related
transactions that is of a value greater than $10,000,000, the Company delivers
to the Trustee an opinion from a nationally recognized investment banking firm
that such transaction or series of related transactions is fair to the Company
or the relevant Subsidiary, as the case may be, from a financial point of view;
provided, however, that, solely for purposes of compliance with this covenant,
banking and investment banking transactions that are concluded as part of a
public offering, securitization, syndication or similar distribution in which
non-affiliated financial intermediaries participate shall be presumed to be on
arm's length terms, but only to the extent that the relevant Related Persons
participate on the same basis and capacity as the financial intermediaries that
are not Related Persons.
SECTION 4.9. Repurchase Upon Change in Control. Upon the occurrence of
a Change in Control, the Company shall offer in accordance with the procedures
set forth in Section 3.7 of this Indenture (the "Change in Control Offer") to
purchase all issued and outstanding Notes at the Special Offer Purchase Price
and shall purchase as and when required by Section 3.7 of this Indenture, all
Notes tendered in conformity with such section.
SECTION 4.10. Limitation on Use of Proceeds from Asset Sales. Neither
the Company nor any Subsidiary shall, directly or indirectly, consummate any
Asset Sale with or to any Person other than the Company or a Wholly Owned
Subsidiary, unless (i) the Company or the Subsidiary, as the case may be,
receives consideration at the time of any such Asset Sale at least equal to the
fair market value of the asset sold or otherwise disposed of, and (ii) at least
80% of the net proceeds from such Asset Sale is received in Cash or Cash
Equivalents (provided that the amount of any liabilities (as shown on the
Company's most recent consolidated balance sheet) of the Company or any
Subsidiary of the Company that are assumed by the transferee in such Asset Sale
shall be excluded from both the numerator and denominator when calculating the
percent of net proceeds received in Cash or Cash Equivalents for purposes of
this provision). Within 180 days after the receipt by the Company or any
Subsidiary of the Company of Net Cash Proceeds in respect of any Asset Sale, the
Company shall (or shall cause its relevant Subsidiary to) use all such Net Cash
Proceeds (a) to repay Indebtedness of the type describe in subsections (i),
(ii), (iii) or (iv) of Section 4.7 of this Indenture, (b) to repay Indebtedness
of any Subsidiary of the Company to the extent of the fair market value of any
asset of the Company or any Subsidiary of the Company that is pledged to secure
such Indebtedness, (c) to make capital improvements to any of the Core
Properties then owned by the Company or any Subsidiary of the Company or to
acquire a New Property or New Property Equity Interests (except that the amount
of Net Cash Proceeds used to make capital improvements and/or to acquire a New
Property or New
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Property Equity Interests may not exceed 50% of the aggregate of such Net Cash
Proceeds), (d) to make an offer in accordance with the procedures set forth in
Section 3.7 of this Indenture (an "Excess Proceeds Offer") to purchase Notes at
the Special Offer Purchase Price, or (e) for any combination of the above;
provided that, so long as the Excess Proceeds of Asset Sales at any time do not
exceed $2,500,000, the Company need not make an Excess Proceeds Offer if it
deposits all such Excess Proceeds with the Trustee for the benefit of Holders of
Notes; provided, however, that if the aggregate amount of all Excess Proceeds so
deposited with the Trustee at any time exceeds $2,500,000, the Company shall use
such aggregate Excess Proceeds to make an Excess Proceeds Offer as set forth in
this Section 4.10. The Company shall be deemed to have used Net Cash Proceeds
for the purposes set forth in clause (c) of the preceding sentence when it has
made a binding commitment to do so, provided that such Net Cash Proceeds are so
used within twelve months following receipt of such Net Cash Proceeds. If and to
the extent that the principal amount of the Notes (plus accrued interest
thereon) tendered pursuant to any Excess Proceeds Offer is less than the Excess
Proceeds available to fund such offer, the Company may use such remainder, or a
portion thereof, for general purposes, without restriction by this Section 4.10.
SECTION 4.11. Payment of Taxes and Other Claims. The Company shall and
shall cause each of its Subsidiaries to pay or discharge or cause to be paid or
discharged, before any penalty accrues thereon, (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary upon the income, profits or property of the Company or any Subsidiary
of the Company and (ii) all material lawful claims for labor, materials and
supplies which, if unpaid, would by law become a Lien upon the property of the
Company or any Subsidiary of the Company; provided that neither the Company nor
any Subsidiary of the Company shall be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the Holders.
SECTION 4.12. Corporate or Partnership or Other Existence. Subject to
Article 5 hereof, the Company shall and shall cause each of its Subsidiaries to
do or cause to be done all things necessary to preserve and keep in full force
and effect its partnership existence and the corporate, partnership or other
existence of each Subsidiary of the Company in accordance with the respective
organizational documents of such Subsidiary and the rights (charter and
statutory), licenses and franchises of the Company and its Subsidiaries and the
Controlling Partners; provided, however, that the Company shall not be required
to preserve any such right, license or franchise, or the corporate, partnership
or other existence of any Subsidiary, if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries taken as a whole, and that the loss thereof is
not adverse in any material respect to the Holders.
SECTION 4.13. Maintenance of Properties and Insurance. The Company
shall and shall cause each of its Subsidiaries to cause all material properties
owned by, or leased to, the Company or any Subsidiary of the Company and used in
the conduct of its business to be maintained and kept in normal condition,
repair and working order and
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supplied with all necessary equipment and shall cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section shall prevent the Company or any Subsidiary of the
Company from discontinuing the maintenance of any such properties, if such
discontinuance is desirable in the conduct of its business and is not adverse in
any material respect to the Holders.
The Company shall and shall cause each of its Subsidiaries to provide
or cause to be provided insurance (including self-insurance) against loss or
damage of the kinds customarily insured against by entities similarly situated
and owning like properties, including, but not limited to, liability insurance,
in such amounts, with such deductibles and by such methods as shall be customary
for entities similarly situated in the industry.
SECTION 4.14. Stay, Extension and Usury Laws. The Company covenants
(to the fullest extent it may lawfully do so) that it will not at any time
insist upon, plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter enforced, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, 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 has been enacted.
SECTION 4.15. Payment for Consent. Neither the Company, any
Controlling Partner nor any of their respective Subsidiaries or Affiliates
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder of any Notes for or
as an inducement to obtaining any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes, unless such consideration is
offered in writing to all Holders of Notes on the same terms and conditions and
agreed to be paid, and paid, to all Holders of the Notes which so consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to such consent, waiver or agreement (which time frame shall not
consist of less than 20 Business Days).
SECTION 4.16. Covenant to Comply with Securities Laws upon Purchase of
the Notes. In connection with any offer to purchase or purchase of the Notes (or
portions thereof) by the Company or any Subsidiary of the Company, the Company
shall (i) comply with Rule 13e-4 (other than, if not otherwise applicable, the
filing requirements of such rule) and Regulation 14E under the Exchange Act, and
(ii) otherwise comply with all Federal and state securities laws and regulations
so as to permit the rights and obligations hereunder (including Sections 3.7,
4.9, 4.10 and 4.17 hereof) to be exercised in the time and in the manner
specified in such Sections.
SECTION 4.17. Capital Infusion Offer. The Company shall cause to be
delivered to it all proceeds of Capital Infusions received by any Subsidiaries
or Affiliates of
- 33 -
the Company in which the Company has a direct or indirect interest. Upon each
receipt by the Company (from whatever source) or any such Subsidiary or
Affiliate of the Company of the proceeds of a Capital Infusion at any time prior
to the Full Payment Triggering Date, the Company shall offer in accordance with
the procedures set forth in Section 3.7 of this Indenture (a "Capital Infusion
Offer") to purchase at the Special Offer Purchase Price sufficient Notes so that
the aggregate of the principal amount of all Notes (or portions thereof) offered
to be purchased equals the proceeds of the relevant Capital Infusion (after
deducting therefrom all reasonable out-of-pocket expenses incurred in such
Capital Infusion) or, if such Capital Infusion is not cash, then the fair market
value thereof.
SECTION 4.18. Officers' Certificates. Simultaneously with the
execution and delivery of this Indenture, (i) counsel to the Company shall
deliver to the Trustee on behalf of the Holders an Opinion of Counsel in the
form of Exhibit B hereto and (ii) the Company shall deliver to the Trustee on
behalf of the Holders CP Certificates that provide that all of the
representations and warranties set forth in Article 12 hereof are true, complete
and correct in all material respects.
SECTION 4.19. Tag Along Rights. [Holders of Notes to receive notice of
tag along transactions from the Company, may elect to participate in such
transactions based on Units issuable to them on conversion, in which case they
can convey Notes at the closing of the tag along transaction.]
SECTION 4.20. Certain Amendments to Partnership Agreement. The Company
covenants and agrees that no holder of Class A Interests issued upon conversion
of the Notes shall be bound by any amendment to the Partnership Agreement
referred to in the proviso to the first sentence of Section 11.01(b) of the
Partnership Agreement (as in effect on the date hereof), even if such amendment
was made prior to such conversion, unless such holder (in the capacity of a
holder of Class A Interests) has given its written convent to such amendment.
[SECTION 4.21. No Transfer of Equity Interests in Subsidiaries. The
Company shall not transfer any Equity Interest in any Subsidiary of the Company
to any Subsidiary of the Company.]
ARTICLE 5
SUCCESSOR ENTITY
SECTION 5.1. When the Company May Merge or Transfer Assets. The
Company shall not consolidate with, merge with or into, or sell, lease,
transfer, convey or otherwise dispose of all or substantially all of its assets
(in one transaction or a series of related transactions) to, any Person (the
Person formed by or surviving such consolidation or merger, or to which such
sale, lease, conveyance or other disposition shall have been made, whether the
Company or another Person, being herein called the "Surviving Entity") unless:
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(i) the Surviving Entity (if other than the Company) shall be a
corporation, limited liability company or partnership organized and
existing under the laws of the United States or any State thereof or the
District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all of the obligations of the Company under the Notes and this
Indenture;
(ii) immediately before and immediately after giving effect to such
transaction, no Event of Default and no Default shall have occurred and be
continuing; and
(iii) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the Surviving Entity (without
giving effect to any write-up of assets as a result of purchase accounting)
is at least equal to the Consolidated Net Worth of the Company immediately
prior to such transaction.
SECTION 5.2. Surviving Entity Substituted. Upon any consolidation or
merger or any transfer of all or substantially all of the assets of the Company
in accordance with this Article 5, the Surviving Entity (if other than the
Company), upon compliance with the provisions of clause (i) of Section 5.1
hereof, shall succeed to, and be substituted for, and may exercise every right
and power of the Company under this Indenture with the same effect as if such
Surviving Entity had been named as the Company herein; and thereafter (provided
that there has been compliance with the provisions of Section 5.1) the
predecessor company shall be discharged and released from all obligations and
covenants under this Indenture and the Notes; provided, however, that nothing in
Article V shall limit or affect in any way the Company's obligations under this
Indenture which arise out of a Change in Control that occurred upon, or prior
to, the consummation of any consolidation, merger or transfer of all or
substantially all of the assets of the Company.
SECTION 5.3. CP Certificate and Opinion of Counsel. Any consolidation,
merger, sale, lease or conveyance permitted under Section 5.01 is also subject
to the condition that the Trustee receive a CP Certificate and an Opinion of
Counsel to the effect that such consolidation, merger, sale, lease or
conveyance, and the assumption by any Surviving Entity, complies with the
provisions of this Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default" occurs if one of
the following shall occur:
(i) the Company defaults in the payment, when due and payable, of (A)
interest on the Notes and the default continues for a period of 10 days, or (B)
the principal of or premium, if any, on the Notes when the same becomes due and
payable, whether at
- 35 -
maturity, on the Redemption Date, on the Special Offer Payment Date, by
acceleration or otherwise;
(ii) the Company fails to make or consummate any Special Offer, as,
when and to the extent required by the provisions of Section 3.7 hereof and
Sections 4.9, 4.10 or 4.17 hereof, as the case may be;
(iii) the Company fails to comply in any respect with any of the
provisions of Section 5.1 hereof;
(iv) any representation or warranty contained in this Indenture shall
be untrue in any material respect;
(v) the Company fails to comply in any respect with any other
provision in this Indenture or the Notes and such failure continues for 30 days
after receipt by the Company of a written notice from the Trustee or the Holders
of at least 25% of the then outstanding principal amount of the Notes (excluding
any Note then held by the Company or an Affiliate of the Company);
(vi) the Company or any of its Significant Subsidiaries (other than an
Exempt Subsidiary) defaults in the payment when due (after giving effect to any
applicable grace periods) of any principal of or interest on any Indebtedness of
the Company or any Significant Subsidiary (other than an Exempt Subsidiary) if
the aggregate principal amount of all such Indebtedness as to which defaults
then exists exceeds $5,000,000;
(vii) there shall be a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or any of its Significant Subsidiaries
(other than an Exempt Subsidiary), which default shall have resulted in the
acceleration of such Indebtedness prior to its stated final maturity and the
principal amount of such Indebtedness exceeds $5,000,000;
(viii) there shall be judgments against the Company or any Significant
Subsidiary (other than an Exempt Subsidiary) rendered by a court or other
tribunal of competent jurisdiction aggregating (for the Company and all
Significant Subsidiaries (other than an Exempt Subsidiary) in the aggregate) in
excess of $5,000,000 and (a) such judgments are not stayed or discharged within
45 days after their entry or (b) an enforcement proceeding shall have been
commenced (and not discharged, stayed or settled) by any creditor upon any such
judgments;
(ix) the Company, a Controlling Partner, or any Significant Subsidiary
(other than an Exempt Subsidiary):
(A) commences a voluntary case or proceeding under any Bankruptcy
Law;
- 36 -
(B) consents to the entry of an order for relief against it in an
involuntary case or proceeding under any Bankruptcy Law;
(C) consents to the appointment of a Custodian of it or for all or
any substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) admits in writing its inability to pay its debts generally as
they become due; or
(F) dissolves or is deemed dissolved as a matter of law or contract;
(x) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company, a Controlling Partner or any
Significant Subsidiary (other than an Exempt Subsidiary) of the
Company in an involuntary case or proceeding;
(B) appoints a Custodian of the Company, a Controlling Partner or any
Significant Subsidiary (other than an Exempt Subsidiary) for all
or a substantial part of its properties; or
(C) orders the liquidation or dissolution of the Company, a
Controlling Partner, or any Significant Subsidiary (other than an
Exempt Subsidiary);
and in any such case the order or decree remains unstayed and in effect for
60 days;
(xi) default by the Company in the conversion of any Note in
accordance with the terms hereof and thereof, which default continues for three
Business Days;
(xii) [default on $3 million note issued to TIAA, which is guaranteed
by the Company];
(xiii) there shall be a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company that is subordinated in right of
payment to the Notes, which default shall have resulted in the acceleration of
such Indebtedness prior to its stated final maturity; or
(xiv) the opinion or the CP certificate contemplated by Section 4.18
hereof are not delivered to the Trustee on the date hereof.
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SECTION 6.2. Acceleration. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% of the then outstanding
principal amount of the Notes (excluding any Note then held by the Company or an
Affiliate of the Company), by written notice to the Company (and to the Trustee
if such notice is given by such Holders) (the "Acceleration Notice"), may, and
the Trustee at the written request of such Holders shall, declare all unpaid
principal of, premium, if any, on and accrued interest on the Notes to be
immediately due and payable, and thereupon the Trustee may in its discretion
proceed to protect and enforce the rights of the Holders of the Notes by
judicial proceedings to the extent that the Trustee has been fully indemnified
in connection therewith and subject to Section 6.5 hereof.
A copy of the Acceleration Notice shall be deemed to have been duly
delivered upon receipt, if personally delivered; when transmitted with
confirmation of receipt, if transmitted by telecopy; the day after being sent,
if sent for next day delivery to a domestic address by a recognized overnight
delivery service; and upon receipt, if sent by registered or certified mail,
return receipt requested. Upon a declaration of acceleration, such principal,
premium, if any, and accrued interest shall be immediately due and payable.
Notwithstanding anything to the contrary contained herein, if an Event of
Default under Section 6.1(ix) or Section 6.1(x) occurs with respect to the
Company, all unpaid principal of, premium, if any, and accrued interest on the
Notes then outstanding shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. Holders
of a majority of the then outstanding principal amount of the Notes (excluding
any Note then held by the Company or an Affiliate of the Company) by notice to
the Trustee may rescind an acceleration and its consequences, except an
acceleration due to (i) default in payment of principal, premium, if any, or
interest on the Notes, (ii) failure to make or consummate any Special Offer or
to pay any amounts in connection therewith or (iii) default in respect of
conversion of a Note pursuant to Article 11.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess the Notes or does not produce the Notes in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default or a Default shall not impair the right or
remedy or constitute a waiver of, or acquiescence in, the Event of Default or
the Default. No remedy is exclusive of any other remedy. To the extent permitted
by law, all available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. The holders of at least 66 2/3%
of the then outstanding principal amount of the Notes (excluding any Note then
held by an Affiliate of the Company), by notice to the Trustee (and without
notice to any other Noteholder), may waive an existing Default or Event of
Default and its consequences except (a) an Event of Default or a Default in the
payment of principal of, premium, if any, or interest on the Notes, in respect
of conversion of a Note or in connection with the making or
- 38 -
consummation of a Special Offer, and (b) a Default in respect of a provision
that under Section 9.2 hereof can be amended only with the consent of each
Noteholder affected. When a Default or Event of Default is waived, it is cured
and ceases to exist, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right.
SECTION 6.5. Control by Holders. The holders of a majority of the then
outstanding principal amount of the Notes (excluding any Note then held by the
Company or an Affiliate of the Company) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Noteholders or would involve the Trustee in personal liability. The
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 6.6. Limitation on Suits. Except as provided in Section 6.7
hereof, a Noteholder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% of the then outstanding principal
amount of the Notes (excluding any Note then held by the Company or an Affiliate
of the Company) make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity or security
reasonably satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 30 days after
receipt thereof and the offer of indemnity or security; and
(5) during such 30-day period the holders of beneficial interests of a
majority of the then outstanding principal amount of the Notes (excluding any
Note then held by the Company or an Affiliate of the Company) do not give the
Trustee a direction inconsistent with the request.
Notwithstanding anything to the contrary contained in this Section
6.6, any Holder of the Notes shall have the right to institute a proceeding with
respect to this Indenture or the Notes or for any remedy in each of the
following instances:
(w) a Holder of a Note may institute suit for enforcement of payment
of principal of and premium, if any, or interest on such Note on or after the
due dates expressed in such Note (including upon acceleration thereof);
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(x) a Holder of a Note may institute suit for enforcement of payment
of any Special Offer Purchase Price in respect of such Note after the relevant
Special Offer Payment Date;
(y) a Holder of a Note may institute suit for enforcement of its
conversion rights set forth in Article 11 hereof; or
(z) Holders of a majority of the then outstanding principal amount of
the Notes (excluding any Note then held by the Company or an Affiliate of the
Company) may institute any proceeding with respect to this Indenture or the
Notes or any remedy thereunder, including without limitation acceleration;
provided that, upon institution of any proceeding or exercise of any remedy such
holders provide the Trustee with prompt written notice thereof.
A Noteholder may not use this Indenture to prejudice the rights of any
other Noteholder or to obtain a preference or priority over any other
Noteholder.
SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount, premium, if any, or interest, in respect of the Notes held
by such Holder, on or after the due dates expressed in the Notes, any Redemption
Date, any Special Offer Payment Date or to bring suit for the enforcement of any
such payment on or after such dates or to convert such Notes, shall not be
impaired or affected adversely without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
described in Section 6.1(i) hereof occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Notes and the amounts
provided for in Section 7.7 hereof.
SECTION 6.9. Trustee May File Proofs of Claim. In connection with any
judicial proceeding involving the Company, its creditors or its property, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount of the principal
amount, premium, if any, and interest on the Notes and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the
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making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof; and
SECOND: to Noteholders for amounts due and unpaid on the Notes for the
Redemption Price, Special Offer Purchase Price, principal amount, premium or
interest, if any, as the case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on the Notes.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
ARTICLE 7
TRUSTEE
SECTION 7.1. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care in its exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(A) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(B) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
in the case of any such certificates or opinions which by
any provision hereof are specifically required to be
furnished to the Trustee, the Trustee
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shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture.
(3) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(A) this paragraph (3) does not limit the effect of paragraph
(2) of this Section 7.1;
(B) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(C) 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 6.5 hereof.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (1), (2), (3) and (5) of this Section 7.1 and
Section 7.2.
(5) The Trustee shall be under no obligation to perform any duty or to
exercise any of the rights or powers vested in it by this Indenture or to expend
or risk its own funds or otherwise incur any financial liability at the request
or direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense which might be
incurred by it in compliance with such request or direction.
(6) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for the payment of any interest on any money deposited with
it except to the extent agreed upon with the Company in writing.
SECTION 7.2. Rights of Trustee.
(1) Subject to Section 7.1(2)(B), the Trustee may rely on any document
reasonably believed by it to be genuine and to have been signed or presented by
the proper Person. The Trustee need not investigate any fact or matter stated in
the document.
(2) Before the Trustee acts or refrains from acting, it may require a
CP Certificate and an Opinion of Counsel. The Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on such CP
Certificate and Opinion of Counsel.
(3) The Trustee may act through agents but shall be responsible for
the willful misconduct or gross negligence of any such agent.
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(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it reasonably believes to be authorized or within
its rights or powers conferred upon it by the Indenture.
(5) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of the Notes
(or certain portions thereof) and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent or Registrar may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11 hereof.
SECTION 7.4. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Notes. It shall not be
accountable for the use or application of any moneys paid over by the Trustee in
accordance with any provision of this Indenture, or for the use or application
of any moneys received by any Paying Agent other than the Trustee. It shall not
be responsible for any statement in any registration statement for the Notes
under the Securities Act (other than statements contained in any Form T-1 filed
with the Commission under the TIA) or in this Indenture or the Notes (other than
its certificate of authentication).
SECTION 7.5. Notice of Defaults. If a Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to the Noteholders, as
their names and addresses appear on the Register, notice of the Event of Default
within 30 days after a Trust Officer receives written notice thereof stating
that it is a notice of "Default" and citing the applicable subsection of Section
6.1 and identifying this Indenture, unless such Default has been cured or
waived. The Trustee shall not be deemed to have notice of any Default until a
Trust Officer shall have received written notice thereof referring expressly to
this Indenture and citing the applicable subsection of Section 6.1 hereof. The
second sentence of this Section 7.5 shall be in lieu of the proviso to Section
315(b) of the TIA and said proviso is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 7.6. Reports by Trustee to Holders. Within 60 days after each
September 1 beginning with September 1, 1997, the Trustee shall mail to each
Noteholder a brief report dated as of such September 1 in accordance with and to
the extent required under Section 313(a) of the TIA. The Trustee shall also
comply with the reporting requirements of Section 313(b) of the TIA, to the
extent applicable. In addition, the Trustee shall mail to each Noteholder copies
of all materials received from the Company pursuant to the Indenture and not
otherwise provided to the Noteholders. All reports sent by the Trustee pursuant
to this Section 7.6 will be sent in compliance with Section 313(b) of the TIA.
SECTION 7.7. Compensation and Indemnity. The Company agrees:
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(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the Trustee
for all services rendered by it 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) to reimburse the Trustee upon its request for all reasonable and
documented expenses, disbursements and advances (if any) incurred or made by the
Trustee in accordance with any provision of this Indenture, including the
reasonable compensation and the expenses, disbursements and advances of its
agents and counsel) and all reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with any membership on any
creditor's committee, excluding, however, any such expense, disbursement or
advance that may be attributable to the negligence or bad faith of the Trustee
or its agents or counsel;
(3) to reimburse the Trustee's counsel on the Effective Date for its
fees and expenses in connection with review and revision and delivery of this
Indenture and related documentation; and
(4) to indemnify the Trustee in its capacity as such, (which for
purposes of this subsection (4) shall include its officers, directors,
employees, and agents) for, and to hold it harmless against, any and all loss,
liability, costs, claim (including the fees and disbursements of counsel), or
expense, incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or
performance of its duties hereunder, including the reasonable and documented
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
The Trustee shall have a claim and lien prior to the Notes as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.7, except with respect to funds
held in trust for the payment of principal of, premium, if any, or interest on
the Notes or portions thereof.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the resignation or removal of the Trustee and the discharge of this
Indenture. When the Trustee renders services or incurs expenses after the
occurrence of a Default specified in Section 6.1(viii) or Section 6.1(ix)
hereof, the compensation for services and expenses are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign for any
reason by so notifying the Company in writing at least 45 days prior to the date
of the proposed resignation; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.8. The Holders of at least a majority of the then outstanding
principal amount of the Notes (excluding any Note then held by the Company or an
Affiliate of the Company) may remove the Trustee by so notifying the Trustee and
the Company in writing and may appoint a successor Trustee
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subject to the consent of the Company. The Trustee shall resign and the Company
may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent or an order of
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian, receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Noteholders. Subject to payment of all amounts owing to the
Trustee under Section 7.7 hereof and subject further to its lien under Section
7.7, the retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee.
If a successor Xxxxxxx does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of beneficial interests of at least a majority of the then outstanding
principal amount of the Notes (excluding any Note then held by an Affiliate of
the Company) may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
SECTION 7.9. Successor Trustee by Xxxxxx. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including this Trusteeship) to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee; provided that such successor is
eligible under Section 7.10 hereof.
SECTION 7.10. Eligibility; Disqualification. There shall at all times
be a Trustee hereunder which shall (i) be a corporation organized and doing
business under the laws of the United States of America or of any state thereof
authorized under such laws to exercise corporate trustee power and (ii) be
subject to supervision or examination by Federal or state authority. The Trustee
shall at all times satisfy the requirements of TIA ss. 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $50,000,000 or such other
- 45 -
amount as required by the TIA hereafter, as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b). In determining whether the Trustee has conflicting interests as defined
in TIA ss. 310(b)(1), the provisions contained in the proviso to TIA ss.
310(b)(1) shall be deemed incorporated herein. If the Trustee acquires any such
conflicting interest, it must eliminate such conflict within 90 days, apply to
the Commission for permission to continue as Trustee under this Indenture, or
resign. 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 specified in Section 7.8.
SECTION 7.11. Preferential Collection of Claims Against the Company.
If the Trustee shall be or become a creditor of the Company (or any other
obligor under the Notes), the Trustee shall be subject to the provisions of the
TIA regarding the collection of claims against the Company (or any such other
obligor). 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 specified in Section 7.8.
ARTICLE 8
DISCHARGE OF INDENTURE; LEGAL DEFEASANCE
AND COVENANT DEFEASANCE
SECTION 8.1. Legal Termination. This Indenture shall cease to be of
further effect (except that the Company's obligations under Section 7.7 and the
Trustee's and Paying Agent's obligations under Section 8.7 shall survive), when
the Notes previously authenticated and delivered (other than destroyed, lost or
stolen Notes which have been replaced or paid) have been delivered to the
Trustee for cancellation or conversion and the Company has paid and delivered
all sums and Class A Interests payable or deliverable by it hereunder.
SECTION 8.2. Company's Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at its option at any time, elect to have either
Section 8.3 or Section 8.4 applied to the Notes upon compliance with the
conditions set forth below in this Article 8.
SECTION 8.3. Legal Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 8.2 applicable to this Section 8.3,
the Company shall be deemed to have been discharged from its obligations with
respect to the Notes (other than those specified below or in Section 8.8), on
the date the conditions set forth in Section 8.5 are satisfied (hereinafter
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of the sections of, and matters under, this Indenture
referred to in clauses (A) and (B) below and to have satisfied all its other
obligations under the Notes and this Indenture insofar as the Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
- 46 -
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of the Notes to receive, solely from the trust fund described in Section
8.5(i) and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on the Notes when such payments are
due, (B) the Company's obligations with respect to the Notes under Sections 2.3,
2.6, 2.7 and 2.10, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Company's obligations in connection therewith, and (D)
this Article 8 and Article 11. Subject to compliance with this Article 8, the
Company may exercise its option under this Section 8.3 notwithstanding the prior
exercise of its option under Section 8.4.
SECTION 8.4. Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 8.2 applicable to this Section 8.4 on the date the
conditions set forth in Section 8.5 are satisfied, (i) the Company shall be
released from its obligations under Articles 4 and 5 hereof except Sections 4.1
and 4.2 and (ii) the occurrence of an event specified in Section 6.1 with
respect to any of the provisions of Articles 4 or 5 hereof shall not be deemed
to be an Event of Default on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance").
SECTION 8.5. Conditions to Legal Defeasance and Covenant Defeasance.
The following shall be the conditions to application of Section 8.3 or Section
8.4 to the then outstanding Notes:
(i) the Company must have irrevocably deposited with the Trustee, in
trust, for the benefit of the Holders of the Notes, Cash in immediately
available funds sufficient (excluding interest income), in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on, with respect to the Notes on the
Stated Maturity Date of the Notes or on the Redemption Date, as the case may be,
of such principal of, premium, if any, and interest on the Notes; (ii) in the
case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that the Holders of the Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such Legal
Defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred, which opinion will state that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling to
such effect, or (B) since the Effective Date there has been a change in the
applicable Federal income tax laws or regulations to such effect; (iii) in the
case of Covenant Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that the Holders of the Notes 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 time as would have been the case if
such Covenant Defeasance had not occurred; (iv) such Legal Defeasance or
Covenant Defeasance shall not result in a breach or violation of or constitute a
default under any material agreement or instrument to which the Company is a
party or by which it is bound; (v) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that after the 91st day (or such
other applicable date) following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy,
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insolvency, reorganization or similar laws affecting creditors' rights
generally; (vi) the Company shall have delivered to the Trustee a CP Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders over the other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding creditors of the Company
or others; and (vii) the Company shall have delivered to the Trustee a CP
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to such Legal Defeasance or Covenant Defeasance have been satisfied.
After such irrevocable deposit made pursuant to this Section 8.5 and
satisfaction of the other applicable conditions set forth in this Section 8.5,
the Trustee upon request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified above.
The Trustee shall hold in trust Cash deposited with it pursuant to
this Section 8.5. It shall apply the deposited money through the Paying Agent
and in accordance with this Indenture to the payment of principal of, premium,
if any, and interest on the Notes.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money in accordance with Section 8.3 or Section 8.4 by reason of
any legal proceeding or of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with this Article 8; provided, however, that if the Company
makes any payment of principal, premium, if any, or interest on the Notes
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Notes to receive such payment from the money
held by the Trustee or Paying Agent.
SECTION 8.7. Repayment to the Company. Subject to Section 7.7, the
Trustee and the Paying Agent shall promptly pay to the Company upon written
request any excess money held by them at any time. The Trustee and the Paying
Agent shall return to the Company upon written request any money held by them
for the payment of any amount with respect to the Notes that remains unclaimed
for two years after the date upon which such payment shall have become due;
provided, however, that the Trustee or such Paying Agent, before being required
to make such return, may, in the name and at the expense of the Company, cause
to be published once in The Wall Street Journal or a comparable daily newspaper
of national circulation or mail to each such Holder 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 mailing or publication, any unclaimed
money then remaining will be returned to the Company. After the unclaimed money
is returned to the Company, Holders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
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SECTION 8.8. Survival of Holders' Conversion Rights and Company's
Obligation to Provide Reports. Notwithstanding anything to the contrary in this
Article 8, the right of Holders to convert any Notes held by them into Class A
Interests of the Company pursuant to Article 11 shall not be impaired or
terminated by reason of any Legal Defeasance or Covenant Defeasance but shall
continue in existence until the Stated Maturity Date of the Notes or the Notes
are redeemed or repurchased pursuant to Article 3. Notwithstanding anything to
the contrary in this Article 8, the Company's obligation to provide all reports
under Section 4.2 shall continue after any Legal Defeasance or Covenant
Defeasance until the Stated Maturity Date of the Notes or the Notes are redeemed
pursuant to Article 3.
ARTICLE 9
AMENDMENTS
SECTION 9.1. Without Consent of Holders. From time to time, the
Company and the Trustee, without notice to or the consent of the Holders of the
Notes, may amend or supplement this Indenture or the Notes as follows:
(1) to comply with Article 5 hereof; or
(2) to cure any ambiguity or to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein;
provided that no such provision shall adversely affect the interests of the
Noteholders in any respect.
SECTION 9.2. With Consent of Holders. With the written consent
of the Holders of at least at least 66 2/3% of the then outstanding principal
amount of the Notes (excluding any Note then held by the Company or an Affiliate
of the Company), the Company and the Trustee may amend or supplement this
Indenture or the Notes or may waive any existing Default or future compliance by
the Company with any provisions of this Indenture or the Notes (other than a
continuing Default or Event of Default in the payment of principal, premium, if
any, or interest on the Notes). However, without the consent of each Noteholder
affected, a waiver or an amendment to this Indenture or the Notes may not (with
respect to any portion held by a non-consenting Holder of the Notes):
(1) reduce the percentage of principal amount of the Notes whose
Holders must consent to an amendment or waiver or to the rescission of an
acceleration of the Notes or increase the percentage of principal amount of the
Notes whose Holders must consent to any acceleration of the Notes; or
(2) make any change to the Stated Maturity Date or the time, currency
or amount of payment of the principal of, premium, if any, or any interest on,
the Notes or alter any of the redemption provisions or other provisions with
respect thereto; or
- 49 -
(3) waive a default in the payment of the principal of, premium, if
any, or interest on, the Notes, or in respect of conversion of a Note or in
connection with the making or consummation of a Special Offer; or
(4) make any change to this Section 9.2;
(5) make any change to the provisions of this Indenture which
adversely affects the conversion right set forth in Article 11 hereof; or
(6) make any change to any definition which would have the effect of
making a change in items (1) through (5) above.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplement, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or waiver under this Section 9.2 becomes effective,
the Company promptly shall mail or cause to be mailed to each Holder a notice
briefly describing the amendment or waiver. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such amendment or waiver.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment to
this Indenture or the Notes shall be set forth in a supplemental indenture
executed pursuant to this Article 9 which shall comply with the TIA.
SECTION 9.4. Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, supplement, waiver or other action by Holders becomes
effective a consent to it or any other action by a Holder of the Notes hereunder
is a continuing consent by the Holder and every subsequent Holder of the Notes
or portion of the Notes that evidences the same obligation as the consenting
Xxxxxx's Notes or portion thereof, even if notation of the consent, waiver or
action is not made on the Notes. However, any such Holder or subsequent Holder
may revoke the consent, waiver or action as to such Holder's Notes or portion of
the Notes if the Trustee receives notice of revocation before the consent of the
requisite then outstanding principal amount of the Notes has been obtained and
becomes effective. After an amendment, supplement, waiver or action becomes
effective, it shall bind every Noteholder, except as provided in Section 9.2
hereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
first two sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), subject to
Section 9.7 and excluding Affiliates of the Company, and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or
- 50 -
effective for more than 30 days after such record date, unless consents from
holders of the then outstanding principal amount of the Notes required hereunder
for such amendment, supplement or waiver to be effective shall have also been
given and not revoked within such 30-day period.
SECTION 9.5. Notation on or Exchange of the Notes. Notes authenticated
and made available for delivery after the execution of any supplemental
indenture pursuant to this Article 9 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 Company shall so determine, new Notes so
modified as to conform, in the reasonable judgment of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and made available for delivery by the Trustee in
exchange for the outstanding Notes.
SECTION 9.6. Trustee to Sign Supplemental Indentures. Upon the request
of the Company, the Trustee shall join with the Company in the execution of any
amendment or supplemental indenture authorized or permitted by the terms of this
Indenture but the Trustee shall not be obligated to execute any such amendment
or supplemental indenture which adversely affects its own rights, duties,
liabilities or immunities under this Indenture or otherwise. In signing such
amendment or supplemental indenture the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, a CP Certificate and Opinion of
Counsel stating that such amendment or supplemental indenture is authorized or
permitted by this Indenture.
SECTION 9.7. Effect of Amendments and Supplemental Indentures. Upon
the execution of any amendment or supplemental indenture under this Article 9,
this Indenture shall be modified in accordance therewith, and such amendment or
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of the Notes theretofore or thereafter authenticated and made
available for delivery hereunder shall be bound thereby.
ARTICLE 10
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by operation of
subsection (c) of Section 318 of the TIA, the imposed duties shall control. The
provisions of Sections 310 to 317, inclusive, of the TIA that impose duties on
any Person (including provisions automatically deemed included in an indenture
unless the indenture provides that such provisions are excluded) are a part of
and govern this Indenture, except as, and to the extent, expressly excluded from
this Indenture, as permitted by the TIA.
SECTION 10.2. Notices. Any notice, request or communication shall be
in writing and delivered (i) in Person or mailed by first-class mail, postage
prepaid, or (ii) by telecopy (with the original delivered by mail immediately
thereafter) addressed as follows:
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if to the Company:
WORLD FINANCIAL PROPERTIES, L.P.
-------------------------------
Telephone: _______________
Telecopy: ________________
Attention: ______________________
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: ______________
Telecopy: _______________
Attention: Corporate Trust Department - Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Noteholder shall be mailed to
the Noteholder at the Noteholder's address as it appears on the Register and
shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Noteholders, it
shall simultaneously mail a copy to the Trustee and each Registrar and Paying
Agent.
SECTION 10.3. Communication by Noteholder with Other Noteholders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar, the Paying Agent and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) a CP Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
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(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.5. Statements Required in Certificate or Opinion. Each CP
Certificate and Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each Person making such CP Certificate or Opinion
of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such CP
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he has made
such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact, an Opinion of Counsel may rely on a CP Certificate or
certificates of public officials.
SECTION 10.6. Severability Clause. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Noteholders.
The Registrar and Paying Agent may make reasonable rules for their functions.
SECTION 10.8. Legal Holidays. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including a date for giving notice but
excluding any record date) is a Legal Holiday, the action shall be taken on the
next succeeding Business Day, and, if the action to be taken on such date is a
payment in respect of the Notes, no principal, premium, if any, or interest
installment shall accrue for the intervening period; provided, however, that if
such payment is in respect of principal then interest shall continue to accrue
thereon until the date such payment is actually made.
SECTION 10.9. Governing Law; Submission to Jurisdiction. THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO INSTRUMENTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. The Company hereby irrevocably submits to the
jurisdiction of any New York State or United States Federal court sitting in New
York City over any action or proceeding
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arising out of or relating to this Indenture or the Notes and the Company hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such New York State or Federal court. The Company
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. The Company further waives any objection to
venue in such State on the basis of forum non conveniens. The Company agrees
that any action or proceeding brought against the Trustee or any Noteholder
shall be brought only in a New York State or United States Federal court sitting
in New York City.
Nothing in this Section 10.9 shall affect the right of the Trustee or
any Noteholder to serve legal process in any other manner permitted by law or
affect the right of the Trustee or any Noteholder to bring any action or
proceeding against the Company or its property in the courts of any other
jurisdictions.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether from
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its obligations under the
Indenture and the Notes.
SECTION 10.10. Indenture Controls. Notwithstanding anything to the
contrary contained in the Plan or the Order of the Bankruptcy Court confirming
the Plan, if there is any conflict or inconsistency between the terms and
provisions of the Plan or such Order and this Indenture, the terms and
provisions of this Indenture shall control as among the Company, the Noteholders
and the Trustee.
SECTION 10.11. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors and assigns. All agreements of
the Trustee in this Indenture shall bind its successor and assigns.
SECTION 10.12. Multiple Originals; Counterparts. The parties may sign
any number of copies of this Indenture in counterparts. Each signed copy shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
ARTICLE 11
CONVERSION OF NOTES
SECTION 11.1. Conversion Privilege and Conversion Price. Subject to
and upon compliance with the provisions of this Article, at the option of the
Holder thereof, any Note or any portion of the principal amount thereof which is
$1,000 or an integral multiple of $1,000 may be converted at the principal
amount thereof, or of such portion thereof, plus accrued and unpaid interest
thereon through the relevant date of conversion into Class A Interests
(calculated to the nearest 1/10,000th of a Class A Interest, with 5/100,000ths
of a Class A Interest being considered as nearer to the next highest 1/10,000th
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of a Class A Interest) at the Conversion Price (as hereinafter defined),
determined as hereinafter provided, in effect at the time of conversion. In case
a Note or portion thereof is called for redemption pursuant to Section 3.1, such
conversion right in respect of the Note or portion so called shall expire at the
close of business on the Redemption Date, unless the Company defaults in making
the payment due upon such redemption.
The price at which Class A Interests shall be delivered upon
conversion (the "Conversion Price") shall initially be $______ per Class A
Interest, and shall be adjusted from time to time as provided herein, including,
without limitation, pursuant to Section 11.4.
SECTION 11.2. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Notes to be converted shall
surrender such Notes, accompanied by written notice, to the Conversion Agent at
the office of the Conversion Agent or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be converted. Notes
surrendered for conversion during the period from the close of business on any
regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall be accompanied by payment in New
York Clearing House funds or other funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of Notes being surrendered or delivered for conversion, as the case may
be. Except as provided in the immediately preceding sentence or in Section 11.1,
no other adjustment shall be made for accrued interest on a converted Note.
If the Company reasonably determines in good faith that applicable law
would require the Company to withhold any taxes otherwise payable by a Holder in
connection with the exercise of the conversion privilege and if the Company has
given to such Holder written notice of such determination not less than 15 days
nor more than six months prior to such exercise by such Holder of the conversion
privilege, such Holder shall fund such tax withholding as a condition to the
exercise of the privilege.
Within the Business Day on which any Notes and executed Conversion
Notice are received by the Conversion Agent, the Conversion Agent shall:
(i) notify the Company by facsimile transmission and send by facsimile
transmission a copy of such facsimile (unless the Conversion Agent with
which the Note is deposited is itself the Trustee) to the Trustee, of the
following: (a) the principal amounts of all Notes deposited on the same
occasion by the same Holder which are to be converted, the number of Class
A Interests deliverable upon conversion and the name and address of such
Holder as it appears in the Register and (b) the date such Notes and the
related executed Conversion Notice were received by it (the "Conversion
Date") and the Conversion Price in respect of such conversion;
(ii) cancel all Notes delivered with such Conversion Notice and
(unless the relevant Conversion Agent is also the Trustee) dispatch such
cancelled Notes promptly to or to the order of the Trustee together with a
certificate stating the serial numbers (if applicable) of the Notes so
delivered; and
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(iii) dispatch as soon as practicable and in any event within three
days after satisfaction by the Holder of all conditions precedent to
conversion to the Company, the Conversion Notice and, to the Trustee
(unless the relevant Conversion Agent is also the Trustee), a copy thereof.
Notes shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Notes to the Conversion Agent
for conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Notes as Holders shall cease, and the person or
persons entitled to receive the Class A Interests, issuable upon conversion
shall be treated for all purposes as the record holder or holders of such Class
A Interests at such time. As promptly as practicable on or after the Conversion
Date, but in no event more than three Business Days after the Conversion Date,
the Company shall issue and shall deliver at the office of the Conversion Agent
a certificate or certificates for the number of Class A Interests (including
fractional Interests) issuable upon conversion.
In the case of any Note which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Note or
Notes of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Note in the case of
certificated Notes.
SECTION 11.3. Intentionally Deleted.
SECTION 11.4. Adjustment of Conversion Price. The Conversion Price and
the kind of Equity Interests issuable upon Conversion of Notes shall be subject
to adjustment as set forth below in this Section 11.4. The Company shall give
Holders notice of any event described below which requires an adjustment
pursuant to this Section 11.4 in accordance with the provisions of Section 11.5.
(a) Distributions, Subdivisions and Combinations. If at any time the
Company shall (i) fix a record date for the purpose of determining the
holders of Class A Interests entitled to receive a distribution of
Partnership Interests; (ii) subdivide its outstanding Partnership Interests
into a larger number of Partnership Interests; (iii) combine its
outstanding Partnership Interests into a smaller number of Partnership
Interests; or (iv) issue any other Equity Interests by reclassification of
the Partnership Interests (other than pursuant to paragraph 11.4(c) below);
then the Conversion Price shall be proportionately decreased in the case of
such a distribution of Partnership Interests or such a subdivision, or
proportionately increased in the case of such a combination, or the kind of
Equity Interests of the Company which may be purchased shall be adjusted in
the case of such a reclassification of the Partnership Interests, each on
the record date for such distribution or effective date of such
subdivision, combination or reclassification, as the case may be, such that
each Holder shall be entitled to receive, upon conversion of the Notes held
by such Holder, the aggregate number and kind of Partnership Interests
which, if such Notes had been fully converted immediately prior to such
date, it would have owned upon such
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conversion and been entitled to receive by virtue of such distribution,
subdivision, combination or reclassification.
(b) Certain Other Distributions. If at any time the Company shall fix
a record date for the purpose of determining the holders of Class A
Interests entitled to receive any distribution (including any such
distribution made in connection with a consolidation or merger, but
excluding any distribution referred to in Section 11.4(a)) of:
(i) any evidences of indebtedness, any Equity Interests of the
Company (including Convertible Securities but excluding Partnership
Interests) or any other securities or property of any nature
whatsoever (including cash but excluding normal cash distributions
permitted under applicable law so long as in each case such cash is
payable solely out of earnings or undistributed income of the
Company); or
(ii) any warrants or other rights to subscribe for or purchase
any evidences of its indebtedness, any Equity Interests of the Company
(including Convertible Securities) or any other of its securities or
its property of any nature whatsoever;
then the Conversion Price shall be adjusted to equal the Conversion Price
in effect prior to such distribution multiplied by a fraction, (x) the
numerator of which shall be (A) the Current Market Price of one Class A
Interest on such record date minus (B) the amount allocable to one Class A
Interest of the fair value of any and all such evidences of indebtedness,
Equity Interests, other securities or property or warrants or other
subscription or purchase rights so distributable (as determined in good
faith by the Controlling Partner(s) and supported by an opinion from an
investment banking firm of nationally recognized standing), and (y) the
denominator of which shall be such Current Market Price of one Class A
Interest. Such adjustments shall be made whenever such a record date is
fixed. A reclassification of Class A Interests into Partnership Interests
and other Equity Interests of the Company shall be deemed a distribution by
the Company to the holders of Class A Interests of such other Equity
Interests within the meaning of this Section 11.4(b) and, if the
outstanding Class A Interests shall be changed into a larger or smaller
number of Partnership Interests as a part of such reclassification, such
change shall be deemed a subdivision or combination, as the case may be, of
the outstanding Class A Interests within the meaning of Section 11.4(a).
(c) Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. (i) In case the Company after the date hereof (w)
shall consolidate with or merge into any other Person and shall not be the
continuing or surviving Person of such consolidation or merger, or (x)
shall permit any other Person to consolidate with or merge into the Company
and the Company shall be the continuing or surviving Person but, in
connection with such consolidation or merger, the Class A Interests shall
be changed into or exchanged for Equity Interests or other securities of
the
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Company or any other Person or cash or any other property, or (y) shall
transfer all or substantially all of its properties or assets to any other
Person, or (z) shall effect a capital reorganization or reclassification of
the Class A Interests (other than a capital reorganization or
reclassification for which adjustment in the Conversion Price is provided
in Section 11.4(a) or Section 11.4(b)), then, and in the case of each such
transaction, proper provision shall be made so that, upon the basis and the
terms and in the manner provided herein, each Holder shall be entitled upon
the conversion of Notes at any time after the consummation of such
transaction, to the extent such Notes are not converted prior to such
transaction, to receive at the Conversion Price in effect at the time
immediately prior to the consummation of such transaction in lieu of the
Class A Interests issuable upon such conversion prior to such transaction
the Equity Interests and other securities, cash and property to which such
Holder would have been entitled upon the consummation of such transaction
if such Holder had converted such Notes immediately prior thereto, subject
to adjustments (subsequent to such action) as nearly equivalent as possible
to the adjustments provided for in this Section 11.4.
(ii) Notwithstanding anything contained herein to the contrary,
the Company will not effect any of the transactions described in
clauses (w) through (z) of Section 11.4(c)(i) unless, prior to the
consummation thereof, the surviving Person (if other than the Company)
in any merger or consolidation described in such clauses, each Person
which acquires the Company's assets in any transaction described in
clause (y) above, and each Person (other than the Company) which may
be required to deliver any Equity Interests, securities, cash or
property upon the conversion of the Notes as provided herein, shall
assume, by written instrument delivered to, and reasonably
satisfactory to, the Trustee, the obligations of the Company hereunder
to deliver to Holders such Equity Interests, securities, cash or
property as such Holders shall be entitled to receive upon conversion
of the Notes (and if the Company shall survive the consummation of
such transaction, such assumption shall be in addition to, and shall
not release the Company from, any continuing obligations of the
Company hereunder), and such Person shall have similarly delivered to
the Trustee, an Opinion of Counsel stating that this Indenture shall
thereafter continue in full force and effect and the terms hereof
(including, without limitation, all of the provisions of this Section
11.4) shall be applicable to the Equity Interests, securities, cash or
property which such Person may be required to deliver upon any
conversion of Notes pursuant hereto.
(d) Issuance of Partnership Interests, Warrants or other Rights. If at
any time the Company shall issue or sell to any Person any Additional
Partnership Interests or warrants or other similar rights to subscribe for
or purchase any Additional Partnership Interests or Convertible Securities,
whether or not the rights to exchange or convert thereunder are immediately
exercisable (but excluding any distributions for which an adjustment is to
be made pursuant to Sections 11.4(a) or 11.4(b) above), and the price per
Additional Partnership Interest or for which such Additional Partnership
Interests are issuable upon the exercise of such warrants or other rights
or upon conversion or exchange of such Convertible Securities shall be
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less than the Current Market Price per Partnership Interest then in
effect, or without consideration, then the Conversion Price upon each
such issuance shall be adjusted to the lesser of (x) the Conversion
Price that would be in effect in the absence of the adjustment
provided for in this Section 11.4(d) and (y) that price, which shall
be determined by multiplying the Conversion Price by a fraction:
(1) the numerator of which shall be the number of
Partnership Interests outstanding immediately prior to the
issuance of such Additional Partnership Interests plus the number
of Partnership Interests which the aggregate consideration for
the total number of such Additional Partnership Interests so
issued would purchase at the Current Market Price therefor then
in effect, and
(2) the denominator of which shall be the number of
Partnership Interests outstanding immediately after the issuance
of such Additional Partnership Interests.
In the case of the issuance or sale of warrants or other rights
or Convertible Securities, any adjustment under this Section 11.4(d)
shall be made on the basis that (i) the maximum number of Additional
Partnership Interests issuable pursuant to all such warrants or other
similar rights or necessary to effect the conversion or exchange of
all such Convertible Securities shall be deemed to have been issued
and outstanding, (ii) the price per Additional Partnership Interest
shall be deemed to be the lowest possible price per Partnership
Interest in any range of prices per Partnership Interest at which such
Additional Partnership Interests are available to such holders, and
(iii) the Company shall be deemed to have received all of the
consideration payable therefor, if any, as of the date of the actual
issuance of such warrants or other similar rights. No further
adjustments of the Conversion Price shall be made upon the actual
issue of such Partnership Interests upon exercise of such warrants or
other similar rights or upon the actual issue of such Partnership
Interests upon such conversion or exchange of such Convertible
Securities. For the purposes of this Section 11.4(d), the date as of
which the Current Market Price of Partnership Interests shall be
computed shall be the earliest of (x) the date on which the Company
shall enter into a firm contract for the issuance of such warrants or
other similar rights or (y) the date of actual issuance of such
warrants or other similar rights. Such adjustments shall be made upon
the date of the issuance or sale of such warrants or other similar
rights.
(e) Issuance of Convertible Securities. If at any time the
Company shall issue or sell to any Person any Convertible Securities
(other than securities distributed in a transaction described in
Sections 11.4(b) or 11.4(d) above), whether or not the rights to
exchange or convert thereunder are immediately exercisable, the price
per Partnership Interest for which Partnership Interests are issuable
upon such conversion or exchange shall be less than the Current Market
Price per Partnership Interest then in effect on the date of such
issuance or sale or if, after any such issuance or sale, the price per
Partnership Interest for which Additional Partnership Interests may be
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issuable thereafter is amended, and such price as so amended shall be
less than the Current Market Price in effect at the time of such
amendment, then the Conversion Price upon each such issuance or
amendment shall be adjusted (if such adjustment would result in a lower
Conversion Price than would be in effect in the absence of the
adjustment provided for in this Section 11.4(e)) as provided in Section
11.4(d) above on the basis that (i) the maximum number of Additional
Partnership Interests necessary to effect the conversion or exchange of
all such Convertible Securities shall be deemed to have been issued and
outstanding, (ii) the price per Additional Partnership Interest shall
be deemed to be the lowest possible price in any range of prices at
which such Additional Partnership Interests are available to such
holders, and (iii) the Company shall be deemed to have received all of
the consideration payable therefor, if any, as of the date of actual
issuance of such Convertible Securities. No adjustment of the
Conversion Price shall be made under this Section 11.4(e) upon the
issuance of any Convertible Securities which are issued pursuant to the
exercise of any warrants or other subscription or purchase rights
therefor, if any such adjustment shall previously have been made upon
the issuance of such warrants or other rights pursuant to Section
11.4(d). No further adjustments of the Conversion Price shall be made
upon the actual issue of such Partnership Interests upon conversion or
exchange of such Convertible Securities and, if any issue or sale of
such Convertible Securities is made upon exercise of any warrant or
other right to subscribe for or to purchase any such Convertible
Securities for which adjustments of the Conversion Price have been or
are to be made pursuant to other provisions of this Section 11.4, no
further adjustments of the Conversion Price shall be made by reason of
such issue or sale. For the purposes of this Section 11.4(e), the date
as of which the Current Market Price of Partnership Interests shall be
computed shall be the earlier of (x) the date on which the Company
shall enter into a firm contract for the issuance of such Convertible
Securities or (y) the date of actual issuance of such Convertible
Securities. Such adjustments shall be made upon each issuance or
amendment of Convertible Securities and shall become effective
immediately after such issuance or amendment.
(f) Superseding Adjustment. If, at any time after any adjustment
to the Conversion Price shall have been made pursuant to Section
11.4(d) or 11.4(e) above as the result of any issuance of warrants,
rights or Convertible Securities, and either
(i) such warrants or rights, or the right of conversion or
exchange of any other Convertible Securities, shall expire, and
all or a portion of such warrants or rights, or the right of
conversion or exchange with respect to all or a portion of such
other Convertible Securities, as the case may be, shall not have
been exercised; or
(ii) the consideration per Partnership Interest for which
Partnership Interests are issuable pursuant to such warrants or
rights, or the terms of such other Convertible Securities, shall
be increased solely by virtue of provisions therein contained for
an automatic increase in such consideration per Partnership
Interest upon the occurrence of a specified date or event;
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then such previous adjustment shall be rescinded and annulled and
the Additional Partnership Interests which were deemed to have
been issued by virtue of the computation made in connection with
the adjustment so rescinded and annulled shall no longer be
deemed to have been issued by virtue of such computation.
Thereupon, a re-computation shall be made of the effect of such
rights or options or other Convertible Securities on the
Conversion Price on the basis of
(iii) treating the number of Additional Partnership
Interests or other property, if any, theretofore actually issued
or issuable pursuant to the previous exercise of any such
warrants or rights or any such right of conversion or exchange,
as having been issued on the date or dates of any such exercise
and for the consideration actually received and receivable
therefor (including all amounts received in respect of the
issuance or continuance of the validity of such warrants or
rights or any such right of conversion or exchange); and
(iv) treating any such warrants or rights or any such other
Convertible Securities which then remain outstanding as having
been granted or issued immediately after the time of such
increase of the consideration per Partnership Interest for which
Partnership Interests are issuable under such warrants or rights
or other Convertible Securities.
(g) When Adjustments To Be Made. No adjustment in the Conversion
Price shall be required by this Section 11.4 if such adjustment either
by itself or with other adjustments not previously made would require
an increase or decrease of less than 1% in such price. Any adjustment
representing a change of less than such minimum amount which is
postponed shall be carried forward and made as soon as such
adjustment, together with other adjustments required by this Section
11.4 and not previously made, would result in a minimum adjustment.
Notwithstanding the foregoing, any adjustment carried forward shall be
made no later than ten Business Days prior to the earlier of the
Stated Maturity Date and any Redemption Date. All calculations under
this Section 11.4(g) shall be made to the nearest cent. For the
purpose of any adjustment, any specified event shall be deemed to have
occurred at the close of business on the date of its occurrence.
(h) When Adjustments Not Required. If the Company shall fix a
record date for the purpose of determining the holders of Class A
Interests entitled to receive a distribution and shall, thereafter and
before the distribution to such holders thereof, legally abandon its
plan to pay or deliver such distribution, then thereafter no
adjustment shall be required by reason of the taking of such record
and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(i) Other Action Affecting Class A Interests. In case after the
date hereof the Company shall take any action affecting Class A
Interests other than an action described in this Section 11.4, and the
failure to make any adjustment would not
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fairly protect the conversion rights contemplated hereby in accordance
with the essential intent and principle of this Section 11.4, then the
Conversion Price shall be adjusted in such manner and at such time as
shall be equitable in the circumstances.
SECTION 11.5. Notice of Adjustments of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 11.4 and shall prepare a CP Certificate
setting forth the adjusted conversion price and showing in reasonable
detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Notes; and
(b) such CP Certificate and a notice stating that the Conversion
Price has been adjusted and setting forth the adjusted Conversion
Price shall, as soon as practicable, be mailed by the Company to all
Holders at their last addresses as they appear in the Register.
SECTION 11.6. Notice of Certain Partnership Action. In case:
(a) the Company shall declare any distribution on its Class A
Interests; or
(b) the Company shall authorize the granting to holders of its Class A
Interests of rights to subscribe for or to purchase any Equity Interests;
or
(c) of any reclassification of the Class A Interests of the Company,
or of any consolidation or merger to which the Company is a party, or the
sale or transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Notes, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Register, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
distribution or rights or, if a record is not to be taken, the date as of which
the holders of Partnership Interests of record to be entitled to such
distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Class A Interests of record shall be
entitled to exchange their Class A Interests for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give the notice
requested by this Section or any defect therein shall not affect the
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legality or validity of any distribution, right, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up,
or the vote upon any such action.
SECTION 11.7. Issuance of Class A Interests. The Company covenants
that all Class A Interests which may be issued upon conversion of Notes will
upon issue be duly and validly issued and fully paid and nonassessable and,
except as provided in Section 11.8, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
SECTION 11.8. Taxes on Conversions. The Company will pay any and all
taxes that may be payable in respect of the issue or delivery of Class A
Interests on conversion of Notes pursuant hereto. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of Class A Interests in a name other
than that of the Holder of the Note or Notes to be converted, and no such issue
or delivery shall be made unless and until the person requesting such issue has
paid to the Company the amount of any such tax, or has established to the
satisfaction of the Company that such tax has been paid.
SECTION 11.9. Responsibility of Trustee. Neither the Trustee, subject
to the provisions of Section 7.1, nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Conversion Price, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent makes
any representation or shall be accountable with respect to the validity or value
(or the kind or amount) of any Class A Interests, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of
any Note. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to make any cash payment or to issue, transfer or
deliver any Class A Interests or stock certificates or other securities or
property upon the surrender of any Note for the purpose of conversion; and
neither the Trustee, subject to the provisions of Section 7.1, nor any
Conversion Agent shall be responsible for any failure of the Company to comply
with any of the covenants of the Company contained in this Article.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES
The Company hereby makes the following representations and warranties
for the benefit of the Trustee and the Holders in connection with the issuance
of the Notes hereunder. The following representations and warranties shall be
true as of the Effective Date.
SECTION 12.1. Corporate/Partnership Status. Each of the Company, each
Significant Subsidiary of the Company and each Controlling Partner (a) is a duly
organized and validly existing corporation (in the case of the Controlling
Partners and Significant Subsidiaries of the Company that are corporations) or
partnership (in the case of
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the Company and Significant Subsidiaries of the Company that are partnerships)
in good standing under the laws of the jurisdiction of its incorporation or
formation, (b) has all requisite corporate or partnership power and authority,
as the case may be, to own its property and assets and to transact the business
in which it is engaged or presently proposes to engage and (c) is duly qualified
and authorized to do business and is good standing as a foreign corporation or
foreign partnership, as the case may be, in every jurisdiction where the failure
to be so qualified has no reasonable possibility of having a Material Adverse
Effect.
SECTION 12.2. Corporate/Partnership Power and Authority. Each of the
Company and each Controlling Partner has all requisite corporate or partnership
power and authority, as the case may be, to execute, deliver and carry out the
terms and provisions of the Indenture and the Notes issued thereunder to which
it is a party and has taken all necessary corporate or partnership action, as
the case may be, to authorize the execution, delivery and performance by it of
the Indenture and the execution and the authentication by the Trustee of the
Notes. A Controlling Partner has duly executed and delivered the Indenture and
the Notes on behalf of the Company, and each of the Indenture and the Notes
constitutes the Company's legal, valid and binding obligation, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
insolvency, bankruptcy or similar laws affecting creditors' rights generally, or
general principles of equity, whether such enforceability is considered in a
proceeding in equity or at law.
SECTION 12.3. No Violation. Neither the execution, delivery or
performance by the Company or any Controlling Partner of the Indenture and the
Notes, nor the compliance by any such Person with the terms and provisions
hereof and thereof, (a) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, other than any of the foregoing which has no
reasonable possibility of having a Material Adverse Effect, or (b) will conflict
with or result in any breach of, or constitute a default under or result in
breach of, any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
the Company (or of any Controlling Partner or any Subsidiary of the Company),
other than any of the foregoing which has no reasonable possibility of having a
Material Adverse Effect, or (c) will, with respect to the Company or any
Controlling Partner or any Subsidiary of the Company that is a partnership,
violate any provisions of the partnership agreement of such Person (or the
partnership agreement of any partnership of which such Person is a partner), or
(d) will, with respect to any Controlling Partner or any Significant Subsidiary
of the Company that is a corporation, violate any provision of its Certificate
of Incorporation or By-Laws.
SECTION 12.4. Class A Interests Issuable upon Conversion of Notes. The
Company has authorized the creation, and no payments are required in connection
with the issuance, of Class A Interests upon conversion of Notes.
SECTION 12.5. Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption
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by, any governmental or public body or authority, or any subdivision thereof, is
required to authorize, or is required in connection with (i) the execution,
delivery and performance of the Indenture or the issuance of the Notes or (ii)
the legality, validity, binding effect or enforceability of the Indenture or the
Notes, except for those listed on Schedule II, each of which has been duly
obtained or completed.
SECTION 12.6. Investment Company Act; Public Utility Holding Company
Act. None of the Company, any Controlling Partner or any Subsidiary of the
Company is (x) an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended, (y) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of either a "holding company" or a "subsidiary
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (z) subject to any other federal or state law or regulation which
purports to restrict or regulate its ability to borrow money.
SECTION 12.7. Corporate/Partnership Structure; Capitalization.
Schedule III hereto sets forth, as of immediately following the effectiveness of
the transactions to be consummated on the Effective Date pursuant to the Plan, a
complete list of (a) all Affiliates of the Company or any Subsidiary of the
Company that have any record or beneficial interest in any of the Notes, (b) all
Subsidiaries of the Company, (c) each holder of an Equity Interest in the
Company or in any Subsidiary of the Company and the interest so held, (d) all
Core Properties and all Indebtedness thereon and all agreements, instruments and
other documents related thereto, including, without limitation, pursuant to
which such Indebtedness is evidenced, secured or guaranteed and (e) all assets
(including, without limitation, all Equity Interests of any Subsidiary of the
Company) and liabilities of each of the Company and each of its Subsidiaries.
SECTION 12.8. No Default. None of the Company, any Controlling Partner
or any Subsidiary of the Company is in default in any material respect beyond
any applicable grace period under or with respect to any material agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect, the existence of which default could result in
a Material Adverse Effect.
SECTION 12.9. Licenses, etc. The Company, the Controlling Partners and
the Subsidiaries of the Company have obtained and hold in full force and effect,
all material franchises, licenses, permits, certificates, authorizations,
qualifications, accreditation, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of the Core
Properties and their respective businesses as presently conducted.
SECTION 12.10. Compliance with Law. The Company, the Controlling
Partners and the Subsidiaries of the Company are in compliance with all laws,
rules, regulations, orders, judgments, writs and decrees, noncompliance with
which could result in a Material Adverse Effect.
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SECTION 12.11. Capital Infusion. The Company has received from the
Co-Proponents on the Effective Date an aggregate capital contribution of $75
million in Cash.
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SIGNATURES
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
WORLD FINANCIAL CENTER
PROPERTIES, L.P.
By_______________________________,
its General Partner
By
--------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By
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Name:
------------------------
Title:
-----------------------
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