EXHIBIT 4.2
CARRAMERICA REALTY CORPORATION, AS ISSUER
CARRAMERICA REALTY L.P., AS GUARANTOR
AND
BANKERS TRUST COMPANY, AS TRUSTEE
------------------------
INDENTURE
DATED AS OF FEBRUARY 23, 1998
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$100,000,000 6.625% Notes due 2005
$100,000,000 6.875% Notes due 2008
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........................ 1
SECTION 101. Definitions................................................................... 1
Acquired Indebtedness............................................................... 2
Acquisition Lines of Credit......................................................... 2
Act................................................................................. 2
Additional Amounts.................................................................. 2
Adjusted Total Assets............................................................... 2
Affiliate........................................................................... 2
Annual Service Charge............................................................... 2
Applicable Procedures............................................................... 2
Authenticating Agent................................................................ 2
Authorized Newspaper................................................................ 2
Bankruptcy Law...................................................................... 3
Board of Directors.................................................................. 3
Board Resolution.................................................................... 3
Business Day........................................................................ 3
Capital Stock....................................................................... 3
Commission.......................................................................... 3
Company............................................................................. 3
Company Request..................................................................... 3
Consolidated Income Available for Debt Service...................................... 3
Consolidated Net Income............................................................. 3
Corporate Trust Office.............................................................. 4
Corporation......................................................................... 4
Custodian........................................................................... 4
Defaulted Interest.................................................................. 4
Defubutuve Note..................................................................... 4
Disqualified Stock.................................................................. 4
DTC................................................................................. 4
Dollar.............................................................................. 4
Earnings from Operations............................................................ 4
Encumbrance......................................................................... 4
Event of Default.................................................................... 4
Exchange Act........................................................................ 5
Exchange Notes...................................................................... 5
Exchange Offer...................................................................... 5
Exchange Registration Statement..................................................... 5
GAAP................................................................................ 5
Global Note......................................................................... 5
Government Obligations.............................................................. 5
Guaranteed Obligations.............................................................. 6
Guarantor........................................................................... 6
Holder.............................................................................. 6
Indebtedness........................................................................ 6
Indenture........................................................................... 6
Indexed Security.................................................................... 6
Indirect Participant................................................................ 7
Initial Notes....................................................................... 7
Initial Purchasers.................................................................. 7
Interest Payment Date............................................................... 7
Letter of Transmittal............................................................... 7
Make-Whole Amount................................................................... 7
Maturity............................................................................ 7
Non-Recourse Indebtedness........................................................... 7
Notes............................................................................... 7
Officers' Certificate............................................................... 7
144A Global Note.................................................................... 8
Opinion of Counsel.................................................................. 8
Outstanding......................................................................... 8
Participant...........................................................................8
Paying Agent........................................................................ 8
Person.............................................................................. 8
Place of Payment.................................................................... 8
Predecessor Note.................................................................... 9
Private Exchange.................................................................... 9
Private Exchane Notes............................................................... 9
Real Property Assets................................................................ 9
Recourse Indebtedness............................................................... 9
Redemption Date..................................................................... 9
Redemption Price.................................................................... 9
Registered Note..................................................................... 9
Registration Rights Agreement....................................................... 9
Registration Statement.............................................................. 9
Regular Record Date................................................................. 10
Reinvestment Rate................................................................... 10
Responsible Officer................................................................. 10
Restricted Definitive Note.......................................................... 10
Restricted Global Note.............................................................. 10
Restricted Securities Legends....................................................... 10
Securities Act...................................................................... 10
Security Register................................................................... 10
Shelf Registration.................................................................. 10
Significant Subsidiary.............................................................. 11
Special Record Date................................................................. 11
Stated Maturity..................................................................... 11
Statistical Release................................................................. 11
Subsidiary.......................................................................... 11
Total Assets........................................................................ 11
Total Unencumbered Assets........................................................... 11
Trust Indenture Act................................................................. 11
Trustee............................................................................. 11
2005 Initial Notes.................................................................. 12
2008 Initial Notes.................................................................. 12
2005 Notes.......................................................................... 12
2008 Notes.......................................................................... 12
Undepreciated Real Estate Assets.................................................... 12
Unrestricted Definitive Note........................................................ 12
Unrectricted Global Note............................................................ 12
Unsecured Indebtedness.............................................................. 00
Xxxxxx Xxxxxx....................................................................... 00
Xxxxxx Xxxxxx person................................................................ 12
Yield to Maturity................................................................... 12
SECTION 102. Compliance Certificates and Opinions.......................................... 12
SECTION 103. Form of Documents Delivered to Trustee........................................ 13
SECTION 104. Acts of Holders............................................................... 13
SECTION 105. Notices, etc., to Trustee and Company......................................... 15
SECTION 106. Notice to Holders; Waiver..................................................... 15
SECTION 107. Effect of Headings and Table of Contents...................................... 15
SECTION 108. Successors and Assigns........................................................ 16
SECTION 109. Separability Clause........................................................... 16
SECTION 110. Benefits of Indenture......................................................... 16
SECTION 111. No Personal Liability......................................................... 16
SECTION 112. Governing Law................................................................. 16
SECTION 113. Legal Holidays................................................................ 16
ARTICLE II
FORMS OF NOTES............................................. 16
SECTION 201. Forms of Notes................................................................ 16
SECTION 202. Form of Trustee's Certificate of Authentication............................... 17
SECTION 203. Notes Issuable in Global Form................................................. 17
ARTICLE III
THE NOTES................................................ 18
SECTION 301. Terms of the Notes............................................................ 18
SECTION 302. Denominations................................................................. 19
SECTION 303. Execution, Authentication, Delivery and Dating................................ 19
SECTION 304. Temporary Notes............................................................... 21
SECTION 305. Registration, Registration of Transfer and Exchange........................... 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes................................... 34
SECTION 307. Payment of Interest; Interest Rights Preserved................................ 34
SECTION 308. Persons Deemed Owners......................................................... 36
SECTION 309. Cancellation.................................................................. 36
SECTION 310. Computation of Interest....................................................... 37
ARTICLE IV
SATISFACTION AND DISCHARGE...................................... 37
SECTION 401. Satisfaction and Discharge of Indenture....................................... 37
SECTION 402. Application of Trust Funds.................................................... 38
ARTICLE V
REMEDIES................................................ 38
SECTION 501. Events of Default............................................................. 38
SECTION 502. Acceleration of Maturity; Rescission and Annulment............................ 40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee............... 41
SECTION 504. Trustee May File Proofs of Claim.............................................. 42
SECTION 505. Trustee May Enforce Claims Without Possession of Notes........................ 42
SECTION 506. Application of Money Collected................................................ 43
SECTION 507. Limitation on Suits........................................................... 43
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium or
Make-Whole Amount, if any, Interest and Additional Amounts.................... 44
SECTION 509. Restoration of Rights and Remedies............................................ 44
SECTION 510. Rights and Remedies Cumulative................................................ 44
SECTION 511. Delay or Omission Not Waiver.................................................. 44
SECTION 512. Control by Holders of Notes................................................... 44
SECTION 513. Waiver of Past Defaults....................................................... 45
SECTION 514. Waiver of Usury, Stay or Extension Laws....................................... 45
SECTION 515. Undertaking for Costs......................................................... 45
ARTICLE VI
THE TRUSTEE............................................... 46
SECTION 601. Notice of Defaults............................................................ 46
SECTION 602. Certain Rights of Trustee..................................................... 46
SECTION 603. Not Responsible for Recitals or Issuance of Notes............................. 48
SECTION 604. May Hold Notes................................................................ 48
SECTION 605. Money Held in Trust........................................................... 48
SECTION 606. Compensation and Reimbursement................................................ 48
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting Interests................ 49
SECTION 608. Resignation and Removal; Appointment of Successor............................. 50
SECTION 609. Acceptance of Appointment by Successor........................................ 51
SECTION 610. Merger, Conversion, Consolidation or Succession to Business................... 52
SECTION 611. Appointment of Authenticating Agent........................................... 52
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY........................ 54
SECTION 701. Disclosure of Names and Addresses of Holders.................................. 54
SECTION 702. Reports by Trustee............................................................ 54
SECTION 703. Reports by Company............................................................ 54
SECTION 704. The Company to Furnish Trustee Names and Addresses of Holders................. 55
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE.......................... 55
SECTION 801. Consolidations and Mergers of the Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions....................... 55
SECTION 802. Rights and Duties of Successor Entity......................................... 56
SECTION 803. Officers' Certificate and Opinion of Counsel.................................. 56
ARTICLE IX
SUPPLEMENTAL INDENTURES....................................... 56
SECTION 901. Supplemental Indentures without Consent of Holders............................ 56
SECTION 902. Supplemental Indentures with Consent of Holders............................... 58
SECTION 903. Execution of Supplemental Indentures.......................................... 59
SECTION 904. Effect of Supplemental Indentures............................................. 59
SECTION 905. Conformity with TIA........................................................... 59
SECTION 906. Reference in Notes to Supplemental Indentures................................. 59
ARTICLE X
COVENANTS............................................... 59
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount (if
any), Interest and Additional Amounts (if any)........................... 59
SECTION 1002. Maintenance of Office or Agency.............................................. 60
SECTION 1003. Money for Notes Payments to Be Held in Trust................................. 60
SECTION 1004. Limitations on Incurrence of Indebtedness.................................... 61
SECTION 1005. [Omitted].................................................................... 63
SECTION 1006. Existence.................................................................... 63
SECTION 1007. Maintenance of Properties.................................................... 63
SECTION 1008. Insurance.................................................................... 63
SECTION 1009. Payment of Taxes and Other Claims............................................ 63
SECTION 1010. Provision of Financial Information........................................... 63
SECTION 1011. Statement as to Compliance................................................... 64
SECTION 1012. Additional Amounts........................................................... 64
SECTION 1013. Waiver of Certain Covenants.................................................. 65
ARTICLE XI
REDEMPTION OF NOTES......................................... 65
SECTION 1101. Applicability of Article..................................................... 65
SECTION 1102. Election to Redeem; Notice to Trustee........................................ 65
SECTION 1103. Selection by Trustee of Notes to Be Redeemed................................. 66
SECTION 1104. Notice of Redemption......................................................... 66
SECTION 1105. Deposit of Redemption Price.................................................. 67
SECTION 1106. Notes Payable on Redemption Date............................................. 67
SECTION 1107. Notes Redeemed in Part....................................................... 67
ARTICLE XII
GUARANTY................................................ 68
SECTION 1201. Guaranty..................................................................... 68
SECTION 1202. Guaranty Absolute............................................................ 68
SECTION 1203. Waivers...................................................................... 69
SECTION 1204. Waiver of Subrogation and Contribution....................................... 70
SECTION 1205. Certain Agreements........................................................... 71
SECTION 1206. No Waiver; Cumulative Remedies............................................... 72
SECTION 1207. Continuing Guaranty.......................................................... 72
SECTION 1208. Severability................................................................. 73
SECTION 1209. Limitation on Guarantor Liability............................................ 73
ARTICLE XIII
[OMITTED]............................................... 73
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE.................................. 73
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance...................................................... 73
SECTION 1402. Defeasance and Discharge..................................................... 73
SECTION 1403. Covenant Defeasance.......................................................... 74
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.............................. 74
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions........................................... 76
ARTICLE XV
MEETINGS OF HOLDERS OF NOTES ................................. 76
SECTION 1501. Purposes for Which Meetings May Be Called.................................... 76
SECTION 1502. Call, Notice and Place of Meetings........................................... 76
SECTION 1503. Persons Entitled to Vote at Meetings......................................... 77
SECTION 1504. Quorum; Action............................................................... 77
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings................................................................. 78
SECTION 1506. Counting Votes and Recording Action of Meetings.............................. 79
SECTION 1507. Evidence of Action Taken by Holders.......................................... 79
SECTION 1508. Proof of Execution of Instruments............................................ 79
ANNEX A.................................................................................... A-1
ANNEX B.................................................................................... B-1
ANNEX C.................................................................................... C-1
ANNEX D.................................................................................... D-1
CarrAmerica Realty Corporation, as Obligor
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939 Act")
and this Indenture, dated as of February 23, 1998.
Trust Indenture Act Section Indenture Section
ss. 310 (a) (1)........................................... 607
(a) (2)........................................... 607
(b)........................................... 607, 608
ss. 312 (c)............................................... 701
ss. 313 (a)............................................... 70
(c)............................................... 702
ss. 314 (a)............................................... 703
(a) (4)........................................... 1011
(c) (1)........................................... 102
(c) (2)........................................... 102
(e)............................................... 102
ss. 315 (b)............................................... 601
ss. 316 (a) (last sentence)............................... 101 ("Outstanding")
(a) (1) (A)....................................502, 512
(a) (1) (B)....................................... 513
(b)............................................... 508
ss. 317 (a) (1)........................................... 503
(a) (2)........................................... 504
ss. 318 (a)............................................... 111
(c)............................................... 111
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of this Indenture.
Attention should also be directed to Section 318 (c) of the 1939
Act, which provides that the provisions of Sections 310 to and including
317 of the 1939 Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
Indenture (this "Indenture"), dated as of February 23, 1998, by and among
CARRAMERICA REALTY CORPORATION, a Maryland corporation (the "Company"), having
its principal office at 0000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000;
CARRAMERICA REALTY, L.P., a Delaware limited partnership, as guarantor (the
"Guarantor"), having its principal office at 0000 Xxxxxxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000 and BANKERS TRUST COMPANY, a bank organized under the
laws of the United States of America, as Trustee hereunder (the "Trustee"),
having its Corporate Trust Office (as defined below) at Four Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
WHEREAS, the Company deems it necessary to issue for its lawful purposes
the Notes (as defined herein), and has duly authorized the execution and
delivery of this Indenture to provide for the issuance of the Notes, which Notes
will bear interest at the rates or formulas, to mature at such times and to have
such other provisions as hereinafter provided. The Notes will be senior debt
securities representing unsecured debt obligations of the Company.
WHEREAS, the Guarantor deems it advisable to guarantee satisfaction of
certain of the Company's obligations under this Indenture, and has duly
authorized the execution and delivery of this Indenture to provide the Guaranty
(as defined herein) as hereinafter provided.
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, and in consideration of
the premises and the purchase of the Notes by the Holders (as defined below)
thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms "cash transaction" and "self-liquidating paper", as used in TIA
Section 311, have the meanings assigned to them in the rules of the Commission
adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at the
time the Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from the Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, the Person becoming a
Subsidiary or that acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Acquisition Lines of Credit" means, collectively, any secured lines of
credit of the Company or any Subsidiary, the proceeds of which are to be used,
among other things, to acquire interests, directly or indirectly, in real
estate.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by a
Note or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"Adjusted Total Assets" has the meaning specified in Section 1004.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Service Charge" for any period means the aggregate interest expense
for the period in respect of, and the amortization during the period of any
original issue discount of, Indebtedness of the Company and its Subsidiaries and
the amount of dividends which are payable during the period in respect of any
Disqualified Stock.
"Applicable Procedures" means, with respect to any transfer or exchange of
or for beneficial interests in any Global Note, the rules and procedures of DTC
or any successor depositary that apply to such transfer and exchange.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place.
Whenever successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers in the same city meeting the foregoing requirements and in
each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Board of Directors" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution (i) with respect to the
Company, of the Company, certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of Directors and (ii) with
respect to the Guarantor, of the general partner of the Guarantor, certified by
the Secretary or an Assistant Secretary of the general partner of the Guarantor,
and, in each case, to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in the City of
New York or in the City of Chicago are authorized or required by law, regulation
or executive order to close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of the Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the TIA, then the body performing such duties on
such date.
"Company" Company means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of and on behalf of the Company by its Chairman of
the Board, its President or a Vice President, and by its Treasurer or an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, or
Chief Financial Officer and delivered to the Trustee.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations (as defined below) of the Company and its Subsidiaries
plus amounts which have been deducted, and minus amounts which have been added,
for the following (without duplication): (i) interest expense on Indebtedness of
the Company and its Subsidiaries; (ii) provision for taxes of the Company and
its Subsidiaries based on income; (iii) amortization of debt discount; (iv)
provisions for
gains and losses on properties and property depreciation and amortization; (v)
the effect of any noncash charge resulting from a change in accounting
principles in determining Earnings from Operations for the period; and (vi)
amortization of deferred charges.
"Consolidated Net Income" any period means the amount of consolidated net
income (or loss) of the Company and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP.
"Corporate Trust Office" means the principal corporate trust office of the
Trustee at which, at any particular time, its corporate trust business shall be
administered, which office at the date hereof is located at Four Xxxxxx Xxxxxx,
Xxx Xxxx, XX 00000.
"Corporation" includes corporations, associations, companies, Companies and
business trusts.
"Custodian" has the meaning specified in Section 501.
"Defaulted Interest" has the meaning specified in Section 307.
"Definitive Note" means a certificated Note registered in the name of the
Holder thereof and issued in accordance with Section 305 hereof, substantially
in the form of Annexes A and B hereto except that Note shall not bear the Global
Note Legend.
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of the Person which by the terms of that Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for common
stock), (ii) is convertible into or exchangeable or exercisable for Indebtedness
or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable
solely in exchange for Capital Stock which is not Disqualified Stock or the
redemption price of which may, at the option of that Person, be paid in Capital
Stock which is not Disqualified Stock), in each case on or prior to the Stated
Maturity of the Notes; provided, however, that equity interests whose holders
have (or will have after the expiration of an initial holding period) the right
to have such equity interests redeemed for cash in an amount determined by the
value of the Common Stock of the Company (including, without limitation, certain
equity interests in the Guarantor and Xxxx Realty, L.P.) do not constitute
Disqualified Stock.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officers' Certificate delivered
to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items, and property
valuation losses, net, as reflected in the financial statements of the Company
and its Subsidiaries for the period determined on a consolidated basis in
accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security interest
of any kind, except any mortgage, lien, charge, pledge or security interest of
any kind which secures debt of the Guarantor owed to the Company.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934 and any successor
statute thereto, in each case as amended from time to time, and the rules and
regulations of the Commission thereunder.
"Exchange Notes" means those Notes issued pursuant to this Indenture in
connection with the Exchange Offer pursuant to the Registration Rights
Agreement, the terms of which shall be materially identical to those of the
Initial Notes.
"Exchange Offer" has the meaning specified in the Registration Rights
Agreement.
"Exchange Registration Statement" has the meaning specified in the
Registration Rights Agreement.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Global Note" means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global Notes.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America, for the payment of which its full faith and
credit is pledged or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such obligation or a specific payment of interest on or principal of any
such obligation held by such custodian for the account of the holder of a
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the obligation or the specific payment of interest on or principal of the
obligation evidenced by such depository receipt.
"Guaranteed Obligations" has the meaning specified in Article 12.
"Guaranty" means the guaranty of the Notes contained in Article 12 given by
the Guarantor.
"Guarantor" means the Person named as the "Guarantor" in the recitals of
this Indenture until a successor Guarantor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Guarantor" shall
mean such successor Guarantor.
"Holder" means, in the case of a Registered Note, the Person in whose name
a Note is registered in the Security Register.
"Indebtedness" of the Company or any Subsidiary means any indebtedness of
the Company or any Subsidiary, whether or not contingent, in respect of (i)
borrowed money or indebtedness evidenced by bonds, notes, debentures or similar
instruments, (ii) borrowed money or indebtedness evidenced by bonds, notes,
debentures or similar instruments secured by any Encumbrance existing on
property owned by the Company or any Subsidiary, (iii) reimbursement obligations
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations under any title retention
agreement, (iv) the amount of all obligations of the Company or any Subsidiary
with respect to redemption, repayment or other repurchase of any Disqualified
Stock, and (v) any lease of property by the Company or any Subsidiary as lessee
which is reflected on the Company's consolidated balance sheet as a capitalized
lease in accordance with GAAP, to the extent, in the case of items of
indebtedness under (i) through (iv) above, that any such items (other than
letters of credit) would appear as a liability on the Company's consolidated
balance sheet in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation of the Company or any Subsidiary to be liable
for, or to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), Indebtedness of another Person
(other than the Company or any Subsidiary) (it being understood that
Indebtedness shall be deemed to be incurred by the Company or any Subsidiary
whenever the Company or the Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof).
"Indenture" means this Indenture, as amended and supplemented from time to
time.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Indirect Participant" means entities that clear through or maintain a
custodial relationship with a Participant either directly or indirectly.
"Initial Notes" means $100,000,000 aggregate principal amount of 6.625%
Notes due 2005 and $100,000,000 aggregate principal amount of 6.875% Notes due
2008, in each case, issued under this Indenture on or about the date hereof.
"Initial Purchasers" means X.X. Xxxxxx Securities Inc., Xxxxxxx, Xxxxx &
Co. and Xxxxxx Brothers.
"Interest Payment Date" when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note, as specified in
Section 301.
"Letter of Transmittal" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the Notes for use by such Holders in
connection with an Exchange Offer pursuant to the Registration Rights Agreement.
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Note, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of such dollar if such redemption or accelerated
payment had not been made, determined by discounting, on a semi-annual basis,
such principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of Redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had not been made, over (ii) the aggregate principal amount of the Notes
being redeemed or paid.
"Maturity", when used with respect to any Note, means the date on which the
principal of such Note or an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, notice of redemption, notice of option to elect repayment or
otherwise.
"Non-Recourse Indebtedness" means Indebtedness for which the right of
recovery of the obligee thereof is limited to recourse against the Real Property
Assets securing such Indebtedness (subject to such limited exceptions to the
non-recourse nature of such Indebtedness such as fraud, misappropriation,
misapplication and environmental indemnities, as are usual and customary in like
transactions at the time of the incurrence of such Indebtedness).
"Notes" means the Company's 6.625% Notes due 2005 and the Company's 6.875%
Notes due 2008 issued pursuant to this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice-President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company in
the case of a certificate delivered on behalf of the Company or of the general
partner of the Guarantor in the case of a certificate delivered on behalf of the
Guarantor, and, in each case, delivered to the Trustee.
"144A Global Note" means a global Note substantially in the form of Annex A
hereto bearing the Global Note Legend and the Restricted Securities Legend and
deposited with or on behalf of, and registered in the name of, the depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold in reliance on Rule 144A.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company or
the Guarantor, as the case may be, and who shall be reasonably satisfactory to
the Trustee.
"Outstanding" when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Notes, provided that, if such Notes are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Notes, except to the extent provided in Sections 1402 and
1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company. Notes so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Notes and that the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or of such
other obligor.
"Participant" means, with respect to the depositary, a Person who has an
account with the depositary.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Notes on behalf of the
Company.
"Person" means any individual, corporation, joint venture, partnership
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Notes of or within any
series, means the place or places where the principal of (and premium, if any)
and interest on such Notes are payable as specified as contemplated by Sections
1001 and 1002.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Private Exchange" means the offer by the Company, pursuant to the
Registration Rights Agreement, to issue and deliver to the Initial Purchasers,
in exchange for the Initial Notes held by the Initial Purchasers as part of
their initial distribution, a like principal amount of Private Exchange Notes.
"Private Exchange Notes" means the Exchange Notes to be issued pursuant to
this Indenture in connection with a Private Exchange effected pursuant to the
Registration Rights Agreement.
"Real Property Assets" means as of any time, the real property assets
(including interests in participating mortgages in which the interest of the
Company or any Subsidiary therein is characterized as equity according to GAAP)
owned directly or indirectly by the Company or any Subsidiary at such time.
"Recourse Indebtedness" shall mean Indebtedness of the Company or any
Subsidiary that is not Non-Recourse Indebtedness.
"Redemption Date", when used with respect to any Note to be redeemed, in
whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price," has the meaning specified in Section 1101.
"Registered Note" shall mean any Note which is registered in the Security
Register.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated February 23, 1998 among the Company, the Guarantor and the Initial
Purchasers named therein.
"Registration Statement" shall have the meaning specified in the
Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Notes of or within any series means the date specified for
that purpose in Section 301, whether or not a Business Day.
"Reinvestment Rate" means 0.25% (twenty-five one hundredths of one percent)
plus the arithmetic mean of the yields under the respective headings "This Week"
and "Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity of the Notes, as of the payment
date of the principal being redeemed or paid. If no maturity exactly corresponds
to such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the immediately
preceding sentence and the Reinvestment Rate shall be interpolated or
extrapolated from such yields on a straight-line basis, rounding in each of such
relevant periods to the nearest month. For purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the Corporate Trust and Agency Group of the Trustee (or any
successor group of the Trustee) including any managing director, vice president,
assistant vice president, assistant secretary, assistant treasurer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the Persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred at the
Trustee's Corporate Trust Office because of such officer's knowledge and
familiarity with the particular subject.
"Restricted Definitive Note" means a Definitive Note bearing the Restricted
Securities Legend.
"Restricted Global Note" means a Global Note bearing the Restricted
Securities Legend.
"Restricted Securities Legends" shall mean the legends identified as such
in Annexes A and B hereto.
"Securities Act" means the Securities Act of 1933 and any successor statute
thereto, in each case as amended from time to time and the rules and regulations
of the Commission thereunder.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Shelf Registration" has the meaning specified in the Registration Rights
Agreement.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Notes of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" when used with respect to any Note or any installment of
principal thereof or interest thereon, means the date specified in such Note as
the fixed date on which the principal of such Note or such installment of
principal or interest is due and payable.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such statistical release is
not published at the time of any determination of the Make-Whole Amount, then
such other reasonably comparable index which shall be designated by the Company.
"Subsidiary" means a corporation, partnership or other entity a majority of
the voting power of the voting equity securities or the outstanding equity
interests of which are owned, directly or indirectly, by the Company or by one
or more other Subsidiaries of the Company. For the purposes of this definition,
"voting equity securities" means equity securities having voting power for the
election of directors, whether at all times or only so long as no senior class
of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Company and its Subsidiaries not subject to an Encumbrance
for borrowed money determined in accordance with GAAP (but excluding
intangibles).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee has become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" means or
includes each Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person, "Trustee" as used with respect
to the Notes of any series means only the Trustee with respect to Notes of that
series.
"2005 Initial Notes" means $100,000,000 aggregate principal amount of
6.625% Notes due 2005 issued under this Indenture on or about the date hereof.
"2008 Initial Notes" means $100,000,000 aggregate principal amount of
6.875% Notes due 2007 issued under this Indenture on or about the date hereof.
"2005 Notes" means the 2005 Initial Notes, and the respective Exchange
Notes and Private Exchange Notes, treated as a single series.
"2008 Notes" means the 2008 Initial Notes, and the respective Exchange
Notes and Private Exchange Notes, treated as a single series.
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on that date, before depreciation and amortization, determined on a
consolidated basis in accordance with GAAP.
"Unrestricted Definitive Note" means a Definitive Note that does not bear
and is not required to bear, the Restricted Securities Legend.
"Unrestricted Global Note" means a Global Note that does not bear and is
not required to bear, the Restricted Securities Legend.
"Unsecured Indebtedness" means Indebtedness which is not secured by any
Encumbrance upon any of the properties of the Company or any Subsidiary.
"United States" means the United States of America (including the states
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect to
any Notes pursuant to Section 301, an individual who is a citizen or resident of
the United States, a corporation, Company or other entity created or organized
in or under the laws of the United States or an estate or trust the income of
which is subject to United States federal income taxation regardless of its
source."
"Yield to Maturity" means the yield to maturity, computed at the time of
issuance of a Note (or, if applicable, at the most recent redetermination of
interest on such Note) and as set forth in such Note in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the Outstanding Notes of all series or one or
more series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or record or
both are 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 the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Note, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Notes shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary
public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the execution
of any such instrument, or the authority of the Person executing the same, may
also be proved in any other reasonable manner which the Trustee deems
sufficient.
(c) The ownership of Registered Notes shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of Registered Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, in or pursuant to a Board Resolution, 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. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. 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 Outstanding Notes of a series have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the Outstanding Notes of a series
shall be computed as of such record date; 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 not later than eleven months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note issued upon the registration of transfer
thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee, any Security Registrar, any
Paying Agent, any Authenticating Agent or the Company in reliance thereon,
whether or not notation of such action is made upon such Note.
SECTION 105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously furnished
in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture provides for
notice of any event to Holders of Registered Notes by the Company or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Notes is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Notes. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Notes as shall be made
with the approval of the Trustee shall constitute a sufficient notification to
such Holders for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in this
Indenture by the Company and the Guarantor shall be binding on their successors
and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this Indenture
or in any Note 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 110. Benefits of Indenture. Nothing in this Indenture, or in the
Notes express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and
their successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or in any Note, or
because of any indebtedness evidenced thereby, shall be had against any
promoter, as such, or against any past, present or future shareholder, officer
or director, as such, of the Company or the Guarantor or of any of their
successors either directly or through the Company or the Guarantor or any of
their successors under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Notes by the Holders thereof and as part of the consideration
for the issue of the Notes.
SECTION 112. Governing Law. This Indenture and the Notes shall be governed
by and construed in accordance with the law of the State of New York.
SECTION 113. Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Stated Maturity or Maturity of any Note shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Note other than a provision in the Notes of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) need not
be made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity or Maturity, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Stated Maturity or Maturity, as the case may be.
ARTICLE II
FORMS OF NOTES
SECTION 201. Forms of Notes. The Initial Notes of each series shall be in
substantially the forms of Annex A and Annex B hereto, respectively, and, in the
event of an Exchange Offer, the Exchange Notes of each series shall be in
substantially the forms of Annex C and Annex D hereto, respectively, and in each
case may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Notes may be listed, or to conform to usage.
The Definitive Notes shall be printed, lithographed or engraved or produced
by any combination of these methods on a steel engraved border or steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Notes, as evidenced by their execution of such Notes.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By:___________________________________
Authorized Signatory
SECTION 203. Notes Issuable in Global Form. The Initial Notes shall be
issuable and transferable in fully registered form as Registered Notes. Each
series of the Initial Notes shall be issued in the form of one or more permanent
Global Notes or, in the case of accredited "institutional investors", in the
form of one or more Definitive Notes.
In the event of an Exchange Offer, the Exchange Notes shall be issuable and
transferable in fully registered form as Registered Notes. Each series of
Exchange Notes shall be issued in the form of one or more permanent Global
Notes. The depository for the Notes shall initially be DTC. The Notes shall not
be issuable in definitive form except as provided in Section 305 of this
Indenture. If Notes of or within a series are issuable in global form, then,
notwithstanding the provisions of Section 302, any such Note shall represent
such of the Outstanding Notes of such series as shall be specified therein and
may provide that it shall represent the aggregate principal amount of
Outstanding Notes of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Notes of such series represented thereby may
from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Note in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Notes represented thereby shall be made
by the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 303 or 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Note in permanent global form in the manner and upon instructions given by the
Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Note in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any Note
represented by a Note in global form if such Note was never issued and sold by
the Company and the Company delivers to the Trustee the Note in global form
together with written instructions (which need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Notes represented thereby, together with the written
statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, payment of principal of and
any premium and interest on any Note in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Notes represented by a permanent Global Note in the case of a permanent Global
Note in registered form, the Holder of such permanent Global Note in registered
form.
ARTICLE III
THE NOTES
SECTION 301. Terms of the Notes. There shall be a series of Notes
designated the "6.625% Notes due 2005" and a series of Notes designated the
"6.875% Notes due 2008."
The aggregate principal amount of the 2005 Notes shall be limited to
$100,000,000, and, except as provided herein, the Company shall not execute and
the Trustee shall not authenticate or deliver 2005 Notes in excess of such
aggregate principal amount.
The aggregate principal amount of the 2008 Notes shall be limited to
$100,000,000, and, except as provided herein, the Company shall not execute and
the Trustee shall not authenticate or deliver 2008 Notes in excess of such
aggregate principal amount.
Nothing contained in this Indenture, or in the Notes, is intended to or
shall limit execution by the Company or authentication or delivery by the
Trustee of Notes under the circumstances contemplated by Sections 303, 304, 305,
306, 906 and 1107 of this Indenture.
The 2005 Notes will bear interest at a rate of 6.625% per annum and the
2008 Notes will bear interest at a rate of 6.875% per annum in each case, from
February 23, 1998 or from the immediately preceding Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in
arrears on March 1 and September 1 of each year, commencing September 1, 1998
(each, an "Interest Payment Date"), to the Person in whose name such Note is
registered at the close of business on February 15 or August 15 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date
(each, a "Regular Record Date"). Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months. The interest so payable on any
Note which is not punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the Person in whose name such Note
is registered on the relevant Regular Record Date, and such defaulted interest
shall instead be payable to the Person in whose name such Note is registered on
the Special Record Date or other specified date determined in accordance with
this Indenture.
The 2005 Notes will mature on March 1, 2005 and the 2008 Notes will mature
on March 1, 2008.
The Initial 2005 Notes issued in global form shall be substantially in the
form of Annex A hereto (including the Global Note legend affixed thereon) and
the Initial 2005 Notes issued in definitive form shall be substantially in the
form of Annex A hereto (but without the Global Note legend attached thereto).
The Initial 2008 Notes issued in global form shall be substantially in the form
of Annex B hereto (including the Global Note legend affixed thereon) and the
Initial 2008 Notes issued in definitive form shall be substantially in the form
of Annex B hereto (but without the Global Note legend attached thereto).
The Exchange Notes issued in exchange for Initial 2005 Notes that are
issued in global form shall be substantially in the form of Annex C hereto
(including the Global Note legend affixed thereon) and Exchange Notes issued in
exchange for Initial 2005 Notes that are issued in definitive form shall be
substantially in the form of Annex C hereto (but without the Global Note legend
attached thereto). The Exchange Notes that are issued in exchange for Initial
2008 Notes that are issued in global form shall be substantially in the form of
Annex D hereto (including the Global Note legend affixed thereon) and Exchange
Notes that are issued in exchange for Initial 2008 Notes that are issued in
definitive form shall be substantially in the form of Annex D hereto (but
without the Global Note legend attached thereto). Any Exchange Note that is a
Private Exchange Note will include the Restricted Securities Legend affixed
thereon.
SECTION 302. Denominations. The Notes of each series shall be issuable in
denominations of $1,000 and integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The Notes
shall be executed by the Company's Chairman of the Board, Chief Financial
Officer, President, Secretary or one of its Executive Vice Presidents and by the
general partner of the Guarantor. The signature of any of these officers or
general partner on the Notes may be manual or facsimile signatures of the
present or any future such authorized officer and may be imprinted or otherwise
reproduced on the Notes. Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company or general
partner of the Guarantor shall bind the Company or the Guarantor, as the case
may be, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Notes or did not
hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver the Notes, executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes, and the Trustee in accordance with the Company Order
shall authenticate and deliver such Notes.
In authenticating such Notes, and accepting the additional responsibilities
under this Indenture in relation to such Notes, the Trustee shall be entitled to
receive (other than in the case of the Initial Notes), and (subject to TIA
Section 315(a) through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Notes have been established in
conformity with the provisions of this Indenture;
(b) the terms of such Notes have been established in
conformity with the provisions of this Indenture; and
(c) such Notes when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued
by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their
terms, subject to applicable bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights generally and to
general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the
Notes have been complied with and that, to the best of the knowledge of the
signers of such certificate, no Event of Default with respect to any of the
Notes has occurred and is continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Notes if the issue of such Notes pursuant to this
Indenture will affect the Trustee's own rights, duties, obligations or
immunities under the Notes and this Indenture or otherwise in a manner which is
not reasonably acceptable to the Trustee.
Each Registered Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Note shall be conclusive evidence, and the only evidence, that such
Note has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Note shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Note to the Trustee for cancellation
as provided in Section 309 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Note has never been issued and sold by the Company, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Notes. Pending the preparation of Definitive Notes,
the Company may execute, and upon Company Order, the Trustee shall authenticate
and deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the Definitive Notes in lieu of which they
are issued, in registered form, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Notes may
determine, as conclusively evidenced by their execution of such Notes. Such
temporary Notes may be in global form.
Except in the case of temporary Notes in global form (which shall be
exchanged in accordance with or pursuant to a Board Resolution), if temporary
Notes of any series are issued, the Company will cause Definitive Notes of that
series to be prepared without unreasonable delay. After the preparation of
Definitive Notes of such series, the temporary Notes of such series shall be
exchangeable for Definitive Notes of such series upon surrender of the temporary
Notes of such series at the office or agency of the Company in a Place of
Payment for that series, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Notes of any series, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of Definitive Notes of the same series and authorized
denominations. Until so exchanged, the temporary Notes of any series shall in
all respects be entitled to the same benefits under this Indenture as Definitive
Notes of such series.
SECTION 305. Registration, Registration of Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Notes (the registers maintained in such office or in any such office
or agency of the Company in a Place of Payment being herein sometimes referred
to collectively as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Registered Notes and of transfers of Registered Notes. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed "Security Registrar" for the purpose of
registering Registered Notes and transfers of Registered Notes on such Security
Register as herein provided. In the event that the Trustee shall cease to be
Security Registrar, it shall have the right to examine the Security Register at
all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Note of any series at any office or
agency of the Company in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Notes of the
same series, of any authorized denominations and of a like aggregate principal
amount, bearing a number not contemporaneously outstanding, and containing
identical terms and provisions. Subject to the provisions of this Section 305,
at the option of the Holder, Registered Notes of any series may be exchanged for
other Registered Notes of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Notes to be exchanged at
any such office or agency. Whenever any such Registered Notes are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Notes which the Holder making the exchange is entitled
to receive.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by DTC to a nominee of DTC, by a nominee of DTC to
another nominee of DTC, or
by DTC or any such nominee to a successor of DTC or a nominee of such successor
depositary. All Global Notes will be exchanged by the Company for Definitive
Notes if (i) the Company delivers to the Trustee notice from DTC that it is
unwilling or unable to continue to act as depositary or that it is no longer a
clearing agency registered under the Exchange Act and, in either case, a
successor depositary is not appointed by the Company within 90 days after the
date of such notice from the depositary or (ii) the Company in its sole
discretion determines that the Global Notes (in whole but not in part) should be
exchanged for Definitive Notes and delivers a written notice to such effect to
the Trustee. Upon the occurrence of either of the preceding events in (i) or
(ii) above, Definitive Notes shall be issued in such names as the DTC shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided herein. Every Note authenticated and delivered in
exchange for, or in lieu of, a Global Note or any portion thereof, pursuant to
this Article Three, shall be authenticated and delivered in the form of, and
shall be, a Global Note. A Global Note may not be exchanged for another Note
other than as provided herein.
(b) Transfer and Exchange of Beneficial Interests in Global Notes. The
transfer and exchange of beneficial interests in the Global Notes shall be
effected through DTC, in accordance with the provisions of this Indenture and
the Applicable Procedures. For the purposes of Subparagraphs (b)-(d) of this
Section 305, neither the Company nor the Trustee (nor any registrar or paying
agent) will have any responsibility for the performance by DTC or their
Participants or Indirect Participants of their respective obligations under the
rules and procedures governing their operations. DTC has advised the Company
that it will take any action permitted to be taken by a holder of Notes only at
the direction of one or more Participants whose accounts are credited with DTC
interests in a Global Note. Beneficial interests in the Restricted Global Notes
shall be subject to restrictions on transfer comparable to those set forth
herein to the extent required by the Securities Act. Transfers of beneficial
interests in the 144A Global Notes also shall require compliance with either
subparagraph (i) or (ii) below, as applicable, as well as one or more of the
other following subparagraphs as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Restricted Securities Legend. Beneficial
interests in any Unrestricted Global Note may be transferred only to
persons who take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described
in 3.05(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests (other than a transfer of a beneficial interest in a Global Note
to a person who takes delivery thereof in the form of a beneficial interest
in the same Global Note), the transferor of such beneficial interest must
deliver to DTC either (A) (1) a written order from a participant or an
indirect participant given to DTC in accordance with the Applicable
Procedures directing DTC to credit or cause to be credited a beneficial
interest in another Global Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given in
accordance with the Applicable Procedures containing information regarding
the participant account to be credited with such increase or (B) (1) a
written order from a participant or an indirect participant given
to DTC directing DTC to cause to be issued a Definitive Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given by DTC to the Registrar containing information regarding
the person in whose name such Definitive Note shall be registered to effect
the transfer or exchange referred to in (1) above. Upon an Exchange Offer
by the Company in accordance with Section 3.05(f) hereof, the requirements
of this clause (ii) shall be deemed to have been satisfied upon receipt by
the Registrar of the instructions contained in a Letter of Transmittal
delivered by the Holder of such beneficial interests in the Restricted
Global Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Indenture, the Notes and otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the relevant Global Note
pursuant to Section 3.05(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted
Global Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in the 144A Global Note if the transfer complies with
the requirements of clause (ii) above and DTC receives, if the transferee
will take delivery in the form of a beneficial interest in the 144A Global
Note, from the transferor a certificate in the form of Exhibit A hereto,
including the certifications in item (1) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global
Note. A beneficial interest in any Restricted Global Note may be exchanged
by any Holder thereof for a beneficial interest in an Unrestricted Global
Note or transferred to a person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of clause (ii) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder of the beneficial interest to be transferred,
in the case of an exchange, or the transferee, in the case of a
transfer, certifies in the applicable Letter of Transmittal that it is
not (1) a broker-dealer, (2) a person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to a Shelf
Registration in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Registration Statement in
accordance with the Registration Rights Agreement; or
(D) DTC receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item
(1)(a) thereof;
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a Person who shall take delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit A hereto,
including the certifications in item (3) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to DTC to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Restricted Securities
Legend are not required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 303 of this Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of beneficial interests transferred pursuant to subparagraph
(B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) If any Holder of a beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Definitive Note or
to transfer such beneficial interest to a Person who takes delivery thereof
in the form of a Definitive Note, then, upon receipt by DTC of the
following documentation:
(A) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest
for a Definitive Note, a certificate from such Holder in the form of
Exhibit B hereto, including, subject to Section 3.05(c)(ii) below, the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a
QIB in accordance with Rule 144A under the Securities Act, a
certificate to the effect set forth in Exhibit A hereto, including the
certifications in item (1) thereof;
(C) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144
under the Securities Act, a certificate to the effect set forth in
Exhibit A hereto, including the certifications in item (2)(a) thereof;
(D) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (C) above, a certificate to the
effect set forth in Exhibit A hereto, including the certifications,
certificates and Opinion of Counsel required by item (3) thereof, if
applicable;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item (2)(b)
thereof; or
(F) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities
Act, a certificate to the effect set forth in Exhibit A hereto,
including the certifications in item (2)(c) thereof, the Company shall
cause by issuance of a Company Order to the Trustee the aggregate
principal amount of the applicable Global Note to be reduced
accordingly as provided herein, and the Company shall execute and the
Trustee upon receipt of such Company Order shall authenticate and
deliver to the person designated in the instructions a Definitive Note
in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 3.05(c) shall be registered in such name or
names and in such authorized denomination or denominations as the
Holder of such beneficial interest shall instruct DTC and the
participant or indirect participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section
3.05(c)(i) shall bear the Restricted Securities Legend and shall be
subject to all restrictions on transfer contained therein.
(ii) Notwithstanding Section 3.05(c)(i), a Holder of a beneficial
interest in a Restricted Global Note may exchange such beneficial interest
for an Unrestricted Definitive Note or may transfer such beneficial
interest to a person who takes delivery thereof in the form of an
Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder of such beneficial interest, in the case of an
exchange, or the transferee, in the case of a transfer, certifies in
the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) DTC receives the following:
(1) if the Holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Definitive Note that does not bear the Restricted
Securities Legend, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (1)(b)
thereof;
(2) if the Holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial
interest to a person who shall take delivery thereof in the form
of a Definitive Note that does not bear the Restricted Securities
Legend, a certificate from such Holder in the form of Exhibit A
hereto, including the certifications in item (3) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Company, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Restricted
Securities Legend are not required in order to maintain
compliance with the Securities Act.
(iii) If any Holder of a beneficial interest in an Unrestricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note or to transfer such beneficial interest to a person who takes delivery
thereof in the form of a Definitive Note, then, upon satisfaction of the
conditions set forth in Section 3.05(b)(ii) hereof, the Trustee shall cause
the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to this Indenture, and the Company shall execute and
the Trustee shall upon receipt of a Company Order authenticate and deliver
to the Person designated in the instructions a Definitive Note in the
appropriate principal amount. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 3.05(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the Holder of such beneficial interest shall instruct DTC
and the participant or indirect participant. The Trustee shall deliver such
Definitive Notes to the persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 305(c)(iii) shall not bear the Restricted
Securities Legend. A beneficial interest in an Unrestricted Global Note
cannot be exchanged for a Definitive Note bearing the Restricted Securities
Legend or transferred to a Person who takes delivery thereof in the form of
a Definitive Note bearing the Restricted Securities Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Definitive Notes to a
person who takes delivery thereof in the form of a beneficial interest in a
Restricted Global Note, then, upon receipt by DTC of the following
documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (2)(b) thereof;
(B) if such Definitive Note is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit A hereto, including the certifications
in item (1) thereof;
(C) if such Definitive Note is being transferred pursuant to
an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to
the effect set forth in Exhibit A hereto, including the certifications
in item (2)(a) thereof;
(D) if such Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those
listed in subparagraphs (B) through (C) above, a certificate to the
effect set forth in Exhibit B hereto, including the certifications,
certificates and Opinion of Counsel required by item (2) thereof, if
applicable;
(E) if such Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit A hereto, including the certifications in item (2)(b)
thereof; or
(F) if such Definitive Note is being transferred pursuant to
an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit A hereto, including the
certifications in item (2)(c) thereof, the Trustee shall cancel the
Definitive Note, increase or cause to be increased the aggregate
principal amount of, the appropriate restricted Global Note.
(ii) A Holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a person participating in the
distribution of the Exchange Notes or (3) a person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to an Exchange Registration Statement in
accordance with the Registration Rights Agreement; or
(D) DTC receives the following:
(1) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit B hereto, including the certifications in item
(1)(c) thereof;
(2) if the Holder of such Definitive Notes
proposes to transfer such Definitive Notes to a person who shall
take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Note, a certificate from such Holder in the
form of Exhibit A hereto, including the certifications in item
(3) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such exchange or
transfer is in compliance with the Securities Act, that the
restrictions on transfer contained herein and in the Restricted
Securities Legend are not required in order to maintain
compliance with the Securities Act, and such Definitive Notes are
being exchanged or transferred in compliance with any applicable
blue sky securities laws of any State of the United States.
Upon satisfaction of the conditions of any of the subparagraphs
in this Section 3.05(d)(ii), the Trustee shall cancel the
Definitive Notes and increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Note.
(iii) A Holder of an Unrestricted Definitive Note may exchange
such Note for a beneficial interest in an Unrestricted Global Note or
transfer such Definitive Notes to a person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) above
at a time when an Unrestricted Global Note has not yet been issued, the Company
shall issue and, upon receipt of a Company Order in accordance with Section 3.03
of this Indenture, the Trustee shall authenticate one or more Unrestricted
Global Notes in an aggregate principal amount equal to the principal amount of
beneficial interests transferred pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder's compliance with the
provisions of this Section 3.05(e), the Registrar shall register the transfer or
exchange of Definitive Notes. Prior to such registration of transfer or
exchange, the requesting Holder shall present or surrender to the Registrar the
Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by his attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, pursuant to the provisions of this Section 3.05(e).
(i) Restricted Definitive Notes may be transferred to and
registered in the name of Persons who take delivery thereof if the
Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate in
the form of Exhibit A hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of Exhibit
B hereto, including the certifications, certificates and Opinion of
Counsel required by item (2) thereof, if applicable.
(ii) Any Restricted Definitive Note may be exchanged by the
Holder thereof for an Unrestricted Definitive Note or transferred to a
Person or Persons who take delivery thereof in the form of an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer (as defined in the Registration Rights Agreement)
pursuant to the Exchange Registration Statement in accordance with the
Registration Rights Agreement; or
(D) the Registrar receives the following:
(1) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of
Exhibit B hereto, including the certifications in item (1)(d)
thereof;
(2) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who shall take
delivery thereof in the form of an Unrestricted Definitive Note,
a certificate from such Holder in the form of Exhibit A hereto,
including the certifications in item (3) thereof; and
(3) in each such case set forth in this
subparagraph (D), an Opinion of Counsel in form acceptable to the
Company to the effect that such exchange or transfer is in
compliance with the Securities Act, that the restrictions on
transfer contained herein and in the Restricted Securities Legend
are not required in order to maintain compliance with the
Securities Act, and such Restricted Definitive Note is being
exchanged or transferred in compliance with any applicable blue
sky securities laws of any State of the United States.
(iii) A Holder of Unrestricted Definitive Notes may transfer such
Notes to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note. Upon receipt of a request to register such a transfer, the
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof. Unrestricted Definitive Notes cannot
be exchanged for or transferred to Persons who take delivery thereof in the
form of a Restricted Definitive Note.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Company shall issue and, upon
receipt of a Company Order in accordance with Section 303 of this Indenture, the
Trustee shall authenticate (i) one or more Unrestricted Global Notes in an
aggregate principal amount equal to the principal amount of the beneficial
interests in the Restricted Global Notes tendered for acceptance by Persons that
certify in the applicable Letter of Transmittal that they are not (x)
broker-dealers, (y) participating in the distribution of the Exchange Notes or
(z) affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer. Concurrent with the issuance
of such Notes, the Trustee shall cause the aggregate principal amount of the
applicable Restricted Global Notes to be reduced accordingly, and the Company
shall execute and the Trustee shall authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Definitive Notes in
the appropriate principal amount.
(g) Legends. The following legends shall appear on the face of all Global
Notes and Definitive Notes issued under this Indenture unless specifically
stated otherwise in the applicable provisions of this Indenture.
(i) Restricted Securities Legend.
(A) Except as permitted by subparagraph (B) below, each
Restricted Global Note and each Restricted Definitive Note (and all
Notes issued in exchange therefor or
substitution thereof) and each Private Exchange Note shall bear the
legend in substantially the following form:
"THE SECURITY EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR"), (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE
HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), RESELL OR OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY
EXCEPT (A) TO CARRAMERICA REALTY CORPORATION (THE "COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL
BUYER ("QIB") IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT,
(D) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE FOR THE NOTES A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE) OR (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND IN CONNECTION WITH ANY
TRANSFER OF THE SECURITY EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF
THE HOLDING PERIOD APPLICABLE TO SUCH SECURITY UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK
THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE
MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR
THE NOTES. IF THE PROPOSED TRANSFEREE IS NOT THE COMPANY, A SUBSIDIARY
THEREOF OR A QIB TO WHICH THIS NOTE IS BEING TRANSFERRED IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE FOR THE NOTES SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY OR
THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UNLESS THE TRANSFER
HAS BEEN REGISTERED UNDER THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(iv),
(c)(ii)-(iii), (d)(ii)-(iii), (e)(ii)-(iii) or (f) of this Section 305
(and all Notes issued in exchange therefor or substitution thereof
other than Private Exchange Notes) or, in the case of any Private
Exchange Notes, pursuant to subparagraph (b)(iv)(B) to this Section
305 shall not bear the Restricted Securities Legend.
(ii) Global Note Legend. Each Global Note shall bear a legend in
substantially the following form:
"UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), 00 XXXXX XXXXXX, XXX XXXX, XXX XXXX, TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE
& CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING SET FORTH IN
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
DTC OR A NOMINEE OF DTC. THIS NOTE IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A SUCCESSOR DEPOSITORY OR
ITS NOMINEE."
(h) General Provisions Regarding Transfer and Exchange
All Notes issued upon any registration of transfer or exchange of 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. Upon consummation of an Exchange
Offer, (i) all Outstanding Initial 2004 Notes and any Exchange Notes or
or Private Exchange Notes issued in exchange therefor shall, together, be
considered one series of Notes and (ii) all Outstanding Initial 2007 Notes and
any Exchange Notes or Private Exchange Notes issued in exchange therefor shall,
together, be considered one series of Notes.
Every Registered Note presented or surrendered for registration of transfer
or for exchange or redemption shall (if so required by the Company or the
Security Registrar) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Notes, other than exchanges
pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company, the Trustee or the Security Registrar, as applicable, shall
not be required (i) to issue, register the transfer of or exchange any Note if
such Note may be among those selected for redemption during a period beginning
at the opening of business 15 days before selection of the Notes to be redeemed
under Section 1103 and ending at the close of business on the day of the mailing
of the relevant notice of redemption or (ii) to register the transfer of or
exchange any Registered Note so selected for redemption in whole or in part,
except, in the case of any Registered Note to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to issue, register the transfer of or
exchange any Note which has been surrendered for repayment at the option of the
Holder, except the portion, if any, of such Note not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes. If any mutilated
Note is surrendered to the Trustee or the Company, together with, in appropriate
cases, such security or indemnity as may be required by the Company or the
Trustee to hold each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Note and (ii)
such security or indemnity as may be required by them to hold each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Note has been acquired by a bona fide
purchaser, the Company shall execute and upon the Company's request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Note a new Note of the same series and principal amount, containing identical
terms and provisions and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the immediately preceding two paragraphs,
in case any such mutilated, destroyed, lost or stolen Note has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Note pay such.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other reasonable expenses
(including the reasonable fees and expenses of the Trustee) connected therewith.
Every new Note of any series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note shall be at any time enforceable by anyone, and shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all
other Notes of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved. Interest on
any Registered Note that is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that
Note (or one or more Predecessor Notes) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Note may at the Company's
option be paid by mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register.
Every permanent Global Note will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, for the purpose of permitting DTC
to credit the interest received by it in respect of such permanent Global Note
to the accounts of the beneficial owners thereof.
Any interest on any Registered Note of any series that is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Registered Notes of such series (or their respective
Predecessor Notes) are registered at the close of business on a special Record
Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Registered Note of such series
and the date of the proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days and
not less than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Registered
Notes of such series at his address as it appears in the Note Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each place of
payment, but such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Notes of such series (or their respective Predecessor
Notes) are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Notes of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Notes may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Note for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Registered Note is registered as the owner of such Note for the purpose of
receiving payment of principal of (and premium or Make-Whole Amount, if any) and
(subject to Sections 305 and 307) interest on, such Registered Note and for all
other purposes whatsoever, whether or not such Registered Note be overdue, and
none of the Company, the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Note in global form or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Note, nothing
herein shall prevent the Company, the Trustee or any agent of the Company or the
Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depositary, as a Holder, with respect to such
Global Note or impair, as between such depositary and owners of beneficial
interests in such Global Note, the operation of customary practices governing
the exercise of the rights of such depositary (or its nominee) as Holder of such
Global Note.
SECTION 309. Cancellation. All Notes surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Notes surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver to
the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Notes previously authenticated hereunder which the Company has
not issued and sold, and all Notes so delivered shall be promptly canceled by
the Trustee. If the Company shall so acquire any of the Notes, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation. No Notes shall be authenticated in lieu of or
in exchange for any Notes canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Notes held by the Trustee shall
be destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company, unless, by the Company Order, the Company directs
the return of such cancelled Notes to the Company.
SECTION 310. Computation of Interest. Interest on the Notes of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture shall
upon Company Request cease to be of further effect with respect to any series of
Notes specified in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Notes of such series herein expressly
provided for and any right to receive Additional Amounts, as provided in Section
1012), and the Trustee, upon receipt of a Company Order, and at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when,
(1) either
(A) all Notes of such series theretofore authenticated and
delivered other than (i) Notes of such series that have been destroyed, lost or
stolen and replaced or paid as provided in Section 306, and (ii) Notes of such
series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all Notes of such series not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption at the option of the
Company within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense of the Company, and the Company has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an
amount of money, sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for cancellation, for
principal and premium or Make-Whole Amount, if any and interest, to the
date of such deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Notes, and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
and premium or Make-Whole Amount, if any, and any interest and Additional
Amounts for whose payment such money has deposited with or received by the
Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE V
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used herein
with respect to either series of Notes, means any one of the following events
(whatever the reason for such Event of Default and whether or not it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon or Additional
Amounts payable in respect of any Note of that series when such interest or
Additional Amount becomes due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Note of that series when it becomes due
and payable at its Maturity, upon redemption, upon declaration or
otherwise; or
(3) (i) default in the performance, or breach, of any covenant or
warranty of the Company or the Guarantor in this Indenture with respect to
any Note of that series (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), or (ii) the failure of any Subsidiary to comply with the
provisions in Section 1004, and, in each case, continuance of such default
or breach for a period of 60 days after there has been given, by registered
or certified mail to the Company, by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Notes of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(4) default under any bond, debenture, note, or other evidence of
indebtedness for money borrowed by the Company or any of its Subsidiaries
(including obligations under leases required to be capitalized on the
balance sheet of the lessee under GAAP), representing Recourse Indebtedness
or indebtedness guaranteed by such party in an aggregate principal amount
in excess of $5,000,000, or under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company or any of its
Subsidiaries (including the leases) in an aggregate principal amount in
excess of $5,000,000, whether the indebtedness now exists or shall
hereafter be created, which default shall have resulted in the indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, or the obligations being
accelerated, without the acceleration having been rescinded or annulled;
(5) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its property,
or
(C) orders the liquidation of the Company or any Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(7) except as permitted under this Indenture, the Guaranty is
held in any judicial proceeding to be unenforceable or invalid or shall
cease for any reason to be in full force and effect or the Guarantor shall
deny or disaffirm, in any pleading, its obligations under the Guaranty.
As used in this Section 501, the term "Bankruptcy Law" means Title 11 U.S.
Code or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Notes of any series at the time Outstanding
occurs and is continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Notes of that series
may declare the principal of, and the Make-Whole Amount, if any, on, all the
Notes of that series to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal and Make-Whole Amount or specified portion thereof
shall become immediately due and payable. If an Event of Default with respect to
the Notes of any series set forth in Section 501(5) or (6) of this Indenture
occurs and is continuing, then in every such case all the Notes of that series
shall become immediately due and payable, without notice to the Company, at the
principal amount thereof plus accrued interest to the date the Notes of that
series are paid plus any Make-Whole Amount, due on the Notes of that series.
At any time after such a declaration of acceleration with respect to Notes
of any series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the
Outstanding Notes of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay:
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding Notes of that
series.
(B) the principal of (and premium or Make-Whole Amount, if
any, on) any Outstanding Notes of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such Notes,
and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Notes of that series, other than
the nonpayment of the principal of (or premium or Make-Whole Amount, if any) or
interest on Notes of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Note of any series when such interest or
Additional Amount becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Note of any series at its Maturity, upon
redemption, upon declaration or otherwise.
Then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Notes of such series, the whole amount then
due and payable on such Notes for principal (and premium or Make-Whole Amount,
if any) and interest and Additional Amount with interest upon any overdue
principal (and premium or Make-Whole Amount, if any) and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue
installments of interest or Additional Amounts, if any, at the rate or rates
borne by or provided for in such Notes, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, or any other obligor upon such Notes of such series and
collect the moneys adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Notes of
such series, wherever situated.
If an Event of Default with respect to Notes of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Notes of such series by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Notes or the property of the Company
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Notes of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of overdue
principal, premium or Make-Whole Amount, if any, or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Notes of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of 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
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
And any custodian, receiver, assignee, trustee, liquidator, sequestrator
(or other similar official) in any such judicial proceeding is hereby authorized
by each Holder of Notes of such series to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Note 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 of a Note in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes. All
rights of action and claims under this Indenture or any of the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium or Make-Whole Amount, if any) or
interest and any Additional Amounts, upon presentation of the Notes, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any predecessor
Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the Notes
for principal (and premium or Make-Whole Amount, if any) and interest and any
Additional Amounts payable, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Notes for principal
(and premium or Make-Whole Amount, if any) and interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Note of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Notes of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding
Notes of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Notes of that series; it being understood and intended
that no one or more of such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
or Make-Whole Amount, if any, Interest and Additional Amount. Notwithstanding
any other provision in this Indenture, the Holder of any Note shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium or Make-Whole Amount, if any) and (subject to Sections 305 and 307)
interest on, and any Additional Amounts in respect of such Note on the
respective due dates expressed in such Note (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Note has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, the Company, the Trustee and the Holders of Notes
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Notes is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Note to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Notes, as the case may be.
SECTION 512. Control by Holders of Notes. The Holders of not less than a
majority in principal amount of the Outstanding Notes of any series shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee with respect to the Notes of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in personal
liability or be unduly prejudicial to the Holders of Notes of such series not
joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Notes of any series may on
behalf of the Holders of all the Notes of such series waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole Amount, if
any) or interest on or Additional Amounts payable in respect of any Note of such
series, or
(2) in respect of a covenant or provision hereof which under Article 10
cannot be modified or amended without the consent of the Holder of each
Outstanding Note of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture the Company, Guarantor, Trustee and Holders shall be restored
to their former positions and rights hereunder; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Note by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes, or to any suit instituted by any Holder for the enforcement
of the payment of the principal of (or premium or Make-Whole Amount, if any) or
interest on any Note on or after the respective Stated Maturities expressed in
such Note (or, in the case of redemption, on or after the Redemption Date). The
Company agrees to pay or reimburse the Trustee for paying all reasonable costs
and expenses (including reasonable counsels' fees) of the Trustee in connection
with (a) any default and any enforcement or collection proceedings resulting
therefrom and (b) the enforcement of this Section 515.
ARTICLE VI
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of any
default hereunder with respect to the Notes of any series, the Trustee shall
transmit in the manner and to the extent provided in TIA Section 313(c), notice
of such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium or Make-Whole Amount, if any) or
interest on or any Additional Amounts with respect to any Note of such series,
the Trustee shall be protected in withholding such notice if and so long as a
committee of trust officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Notes of
such series; and provided further that in the case of any default or breach of
the character specified in Section 501(3) with respect to the Notes of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Notes of such series.
SECTION 602. Acceptance of Trusts; Certain Rights and Duties of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) except during the continuance of an Event of Default, the Trustee shall
perform only such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee;
(2) in case a default or an Event of Default has occurred and is continuing
of which a Responsible Officer of the Trustee has actual knowledge or of which
written notice of such default or
Event of Default shall have been given to the Trustee by the Company, any other
obligor of the Notes or by any Holder, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent Person would exercise or use
under the circumstances in the conduct of his own affairs;
(3) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(4) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Note to the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(5) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(6) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Notes of any series pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(7) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company personally or by agent or attorney;
(8) 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 he Trustee and
conforming to the requirement of this Indenture;
(9) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(10) no provision of this Indenture shall be construed to relieve the
Trustee from liaibility for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(a) this pagraph (10) shall not be construed to limit the effect of
paragraph (1) of this Section;
(b) the Trustee shall not be liable for any errors of judgment or any acts,
omissions, mistakes of fact or law taken or omitted in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in aggregate principal amount of the Outstanding Notes of
such series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(d) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it.
(11) Whether nor not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
The permissive right of the Trustee to do the things enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be
answerable for other than its negligence or willful misconduct.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the Trustee's certificate of
authentication shall be taken as the statements of the Company and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity, legality
or sufficiency of this Indenture or of the Notes or of any contracts referred to
herein to which the Company or the Guarantor is a party, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Notes and perform its obligations hereunder. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Notes or the proceeds thereof.
SECTION 604. May Hold Notes. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with
the same rights it would have if it were not the Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust. 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 be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company and the Guarantor
agree:
(1) to pay to the Trustee from time to time reasonable compensation
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) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the 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.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or Section 501(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Holders of the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium or Make-Whole
Amount, if any) or interest on particular Notes.
Notwithstanding any provision in this Indenture, the Trustee's right to
immunities and protection from liability hereunder and its rights to payment of
its fees, expenses and indemnities shall survive its resignation or removal and
the final payment or defeasance of the Notes and the termination
of the Indenture and all indemnification and releases from liability granted
herein shall extend to its directors, officers, employees and agents.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Notes of one or
more series by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(c) The Trustee may be removed at any time with respect to the Notes of any
series by Act of the Holders of a majority in principal amount of the
Outstanding Notes of such series delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Note who has been a bona fide Holder of a Note for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or by any
Holder of a Note who has been a bona fide Holder of a Note for at least six
months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Notes, or (ii) subject to TIA Section 315(e), any Holder of
a Note who has been a bona fide Holder of a Note for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect
to all Notes and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Notes of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Notes of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Notes of one or more or
all of such series and that at any time there shall be only one Trustee with
respect to the Notes of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Notes of any series shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding Notes of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance or such appointment,
become the successor Trustee with respect to the Notes of such series and to
that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Notes of any series shall have been so
appointed by the Company or the Holders of Notes and accepted appointment in the
manner hereinafter provided, any Holder of a Note who has been a bona fide
Holder of a Note of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to Notes of
such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Notes of any series and each appointment of a
successor Trustee with respect to the Notes of any series in the manner provided
for notices to the Holders of Notes in Section 106. Each notice shall include
the name of the successor Trustee with respect to the Notes of such series and
the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Notes, every
such successor Trustee shall execute, acknowledge and deliver to the Company and
the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its lien, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Notes of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Notes of one or
more series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Notes of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Notes, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all of the rights, powers,
trusts and duties of the retiring Trustee with respect to the Notes of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Notes of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
Company, or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Notes of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes. In case any Notes
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Notes, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any of
the Notes remain Outstanding, the Trustee may appoint an Authenticating Agent or
Agents with respect to one or more series of Notes which shall be authorized to
act on behalf of the Trustee to authenticate
Notes of such series issued upon exchange, registration of transfer or partial
redemption or repayment thereof, except upon original issuance or in replacement
of mutilated, lost, stolen or destroyed Notes, and Notes so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Except on original issuance or in replacement of
mutilated, lost, stolen or destroyed Notes, wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to applicable law or
the requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Notes may at any time resign by
giving written notice of resignation to the Trustee for such series and to the
Company. The Trustee for any series of Notes may at any time terminate the
agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Notes of the series with respect to
which such Authenticating Agent will serve in the manner set forth in Section
106. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Notes of such series may have endorsed thereon, in addition to
or in lieu of the Trustee's certificate of authentication, an alternate
certificate of authentication substantially in the following form:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee,
By: _______________________________
as Authenticating Agent
By: _______________________________
as Authorized Signatory
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder of
Notes, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any Authenticating Agent
nor any Paying Agent nor any Security Registrar shall be held accountable by
reason of the disclosure of any information as to the names and addresses of the
Holders of Notes in accordance with TIA Section 312, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after June 30 of each year
commencing with the first June 30 after the first issuance of Notes pursuant to
this Indenture, the Trustee shall transmit by mail to all Holders of Notes as
provided in TIA Section 313(c) a brief report dated as of such June 30 if
required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the Exchange
Act; or if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it will file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a
security listed and registered on a national securities exchange as may be
prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Notes, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent provided
in TIA Section 313(c), such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
SECTION 704. The Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Notes, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders
of Registered Notes of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Notes,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in Writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished, provided, however, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of the Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The Company may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (1) either the Company shall be the continuing entity, or (2) the
successor entity shall be an entity organized and existing under the laws of the
United States or a State thereof and such successor entity shall expressly
assume the due and punctual payment of the principal of (and premium or
Make-Whole Amount, if any) and any interest (including all Additional Amounts,
if any, payable pursuant to Section 1012) on all of the Notes, according to
their tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company, by
supplemental indenture, complying with Article Nine hereof, satisfactory to the
Trustee, executed and delivered to the Trustee by such entity and immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary as a result thereof as
having been incurred by the Company or such Subsidiary at the time or such
transaction, no Event of Default, and no event which, after notice or the lapse
of time, or both, would become an Event of Default, shall have occurred and be
continuing.
SECTION 802. Rights and Duties of Successor Entity. In case of any
consolidation, merger, sale, lease or conveyance permitted under Section 801 and
upon any assumption by the successor entity, such successor entity shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein as the Company, and the predecessor entity, except in the event of
a lease, shall be relieved of any further obligation under this Indenture and
the Notes. Such successor entity thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee; and, upon the order of such successor entity,
instead of the Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Notes which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Notes which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Notes so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Notes theretofore
issued in accordance with the terms of this Indenture as though all of such
Notes had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
of the Company and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders. Without
the consent of any Holders of Notes, the Company and the Guarantor, when
authorized by or pursuant to a Board Resolution and the Trustee, at any time and
from time to time, may enter into one or more indentures supplemental hereto, in
form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor, respectively, herein and in the Notes contained;
or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Notes (and if such covenants are to be for
the benefit of less than all series of Notes, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Notes (and if such Events of Default are to
be for the benefit of less than all series of Notes, stating that such
Events of Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such additional
Events of Default such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the
Trustee upon such default or may limit the right of the Holders of a
majority in aggregate principal amount of that or those series of Notes to
which such additional Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
permit or facilitate the issuance of Notes in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Notes of any series in any material respect; or
(5) to change or eliminate any of the provisions or this Indenture,
provided that any such change or elimination shall become effective only
when there is no Note Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Notes; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes of one or more
series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture, provided such provisions shall not
adversely affect the interests of the Holders of Notes of any series in any
material respect; or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Notes pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of
the Holders of Notes of such series or any other series of Notes in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Notes of such series affected by such supplemental indenture, by Act
of said Holders delivered to the Company, the Guarantor and the Trustee, the
Company, and the Guarantor when authorized by or pursuant to a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Notes under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Note of such series affected thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on), or any installment of principal of or
interest on or any Additional Amounts payable in respect thereof, any Note;
or reduce the principal amount thereof or the rate or amount of interest
thereon, or any premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts pursuant to Section
1012 (except as contemplated by Section 801(1) or 1205 and permitted by
Section 901(1)), or adversely affect any right of repayment at the option
of the Holder of any Note, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof, or
(2) reduce the percentage in principal amount of the Outstanding Notes
of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section 1504
for quorum or voting, or
(3) make any change in any material provision of Article 12 that
adversely affects the interests of any Holder of the Notes, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1013, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Note affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Notes, or which modifies the rights
of the Holders of Notes of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Notes of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution and
delivery of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with TIA. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the TIA as then in
effect.
SECTION 906. Reference in Notes to Supplemental Indentures. Notes of any
series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes of any
series so modified as to conform, in the opinion of the Trustee and the Company,
to any such supplemental indenture may be prepared and executed by the Company
and the Guarantor and authenticated and delivered by the Trustee in exchange for
Outstanding Notes of such series.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium (if any), Make-Whole Amount (if
any), Interest and Additional Amounts (if any). The Company covenants and agrees
for the benefit of the Holders of each series of Notes that it will duly and
punctually pay the principal of (and premium or Make-Whole Amount, if any) and
interest on and any Additional Amounts payable in respect of the Notes of that
series in accordance with the terms of such series of Notes and this Indenture.
Payment of the principal of and interest on the Notes will be made at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York (which shall initially be an office or agency of
the Trustee), in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts.
SECTION 1002. Maintenance of Office or Agency. The Company shall maintain
in each Place of Payment for any series of Notes an office or agency where Notes
of that series may be presented or surrendered for payment, where Notes of that
series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes of that
series and this Indenture may be served.
The Company may from time to time designate one or more other offices or
agencies where the Notes of one or more series may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in accordance with the requirements set forth above for Notes of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency. The Company hereby designates as a Place of Payment
where the Notes may be presented or surrendered for payment, where the Notes may
be surrendered for registration of transfer or exchange or where notices and
demands to and upon the Company in respect of the Notes and this Indenture, the
office or agency of the Company in the Borough of Manhattan, The City of New
York, and initially appoints the Trustee at its Corporate Trust Office as Paying
Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 1003. Money for Notes Payments to Be Held in Trust. If the Company
shall at any time act as its own Paying Agent with respect to any series of the
Notes the Company will, on or before each due date of the principal of and
premium or Make-Whole Amount, if any, or interest on or Additional Amounts in
respect of, any of the Notes, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of the Company's action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Notes it will, on or before each due date of the principal of (and premium or
Make-Whole Amount, if any), or interest on or Additional Amounts in respect of,
any Notes of that series, deposit with a Paying Agent a sum sufficient to pay
the principal (and premium or Make-Whole Amount, if any) or interest or
Additional Amounts, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest or
Additional Amounts and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on the Notes in trust for
the benefit of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any such payment of
principal (or premium or Make-Whole Amount, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as otherwise provided in the Notes, any money deposited with the
Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of (and premium or Make-Whole Amount, if any) or
interest on or Additional Amounts in respect of, any Note of any series and
remaining unclaimed for two years after such principal (or premium or Make-Whole
Amount, if any) or interest or Additional Amounts has become due and payable
shall be paid to the Company upon Company Request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Note shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts in respect of, on any Note, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Limitations on Incurrence of Indebtedness. Neither the
Company nor any Subsidiary will incur any Indebtedness if, immediately after
giving effect to the incurrence of that additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Indebtedness of the Company and its Subsidiaries on a consolidated
basis determined in accordance with GAAP is greater than 60% of the sum of
(without duplication) (i) the Total Assets of the Company and its Subsidiaries
as of the end of the calendar quarter covered in the Company's Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently
filed with the Commission (or, if the filing is not permitted under the Exchange
Act, with the Trustee) prior to the incurrence of the additional Indebtedness
and (ii) the purchase price of any real estate assets or mortgages receivable
acquired and the amount of any securities offering proceeds received (to the
extent that the proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Indebtedness), by the Company or any
Subsidiary since the end of the calendar quarter, including those proceeds
obtained in connection with the incurrence of the additional Indebtedness.
In addition to the foregoing limitation on the incurrence of Indebtedness,
neither the Company nor any Subsidiary will incur any Indebtedness secured by
any Encumbrance upon any of the property of the Company or any Subsidiary if,
immediately after giving effect to the incurrence of the additional Indebtedness
and the application of the proceeds thereof, the aggregate principal amount of
all outstanding Indebtedness of the Company and its Subsidiaries on a
consolidated basis which is secured by any Encumbrance on property of the
Company or any Subsidiary is greater than 40% of the sum of (without
duplication) (i) the Total Assets of the Company and its Subsidiaries as of the
end of the calendar quarter covered in the Company's Annual Report on Form 10-K
or Quarterly Report on Form 10-Q, as the case may be, most recently filed with
the Commission (or, if the filing is not permitted under the Exchange Act, with
the Trustee) prior to the incurrence of the additional Indebtedness and (ii) the
purchase price of any real estate assets or mortgages receivable acquired and
the amount of any securities offering proceeds received (to the extent that the
proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Indebtedness), by the Company or any Subsidiary since the end of
the calendar quarter, including those proceeds obtained in connection with the
incurrence of the additional Indebtedness.
The Company and its Subsidiaries may not at any time own Total Unencumbered
Assets equal to less than 150% of the aggregate outstanding principal amount of
the Unsecured Indebtedness of the Company and its Subsidiaries on a consolidated
basis.
In addition to the foregoing limitations on the incurrence of Indebtedness,
neither the Company nor any Subsidiary will incur any Indebtedness if the ratio
of Consolidated Income Available for Debt Service to the Annual Service Charge
for the four consecutive fiscal quarters most recently ended prior to the date
on which the additional Indebtedness is to be incurred shall have been less than
1.5:1 on a pro forma basis after giving effect thereto and to the application of
the proceeds therefrom, and calculated on the assumption that (i) the
Indebtedness and any other Indebtedness incurred by the Company and its
Subsidiaries since the first day of the four-quarter period and the application
of the proceeds therefrom, including to finance other Indebtedness, had occurred
at the beginning of the period, (ii) the repayment or retirement of any other
Indebtedness by the Company and its Subsidiaries since the first day of the
four-quarter period had been repaid or retired at the beginning of that period
(except that, in making the computation, the amount of Indebtedness under any
revolving credit facility shall be computed based upon the average daily
balance of the Indebtedness during that period), (iii) in the case of Acquired
Indebtedness or Indebtedness incurred in connection with any acquisition since
the first day of the four-quarter period, the related acquisition had occurred
as of the first day of the period with the appropriate adjustments with respect
to the acquisition being included in the pro forma calculation, and (iv) in the
case of any acquisition or disposition by the Company or its Subsidiaries of any
asset or group of assets since the first day of the four-quarter period, whether
by merger, stock purchase or sale, or asset purchase or sale, the acquisition or
disposition and any related repayment of Indebtedness had occurred as of the
first day of the period with the appropriate adjustments with respect to the
acquisition or disposition being included in the pro forma calculation.
SECTION 1005. [Omitted].
SECTION 1006. Existence. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; provided, however, that the Company
shall not be required to preserve any right or franchise if the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 1007. Maintenance of Properties. The Company will cause all of its
material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary from selling or otherwise disposing for
value its properties in the ordinary course of its business.
SECTION 1008. Insurance. The Company will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with financially sound
and reputable insurers.
SECTION 1009. Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1010. Provision of Financial Information. Whether or not the
Company is subject to Section 13 or 15(d) of the Exchange Act, the Company will,
to the extent permitted under the Exchange Act, file with the Commission the
annual reports, quarterly reports and other documents
which the Company would have been required to file with the Commission pursuant
to such Section 13 or 15(d) (the "Financial Statements") if the Company were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company and the Guarantor will, for so long as any of the Initial Notes are
outstanding, furnish to Holders of the Initial Notes and to security analysts
and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) of the Securities Act.
The Company will also in any event (x) within 15 days of each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders copies of the
annual reports and quarterly reports which the Company would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
if the Company were subject to such Sections, and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which the
Company would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act if the Company were subject to such Sections and
(y) if filing such documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder.
SECTION 1011. Statement as to Compliance. The Company and the Guarantor
will deliver to the Trustee, within 120 days after the end of each fiscal year,
a brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture and,
in the event of any noncompliance, specifying such noncompliance and the nature
and status thereof. For purposes of this Section 1011, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1012. Additional Amounts. If any Notes of a series provide for the
payment of Additional Amounts, the Company will pay to the Holder of any Note of
such series such Additional Amounts as may be specified in this Indenture.
Whenever in this Indenture there is mentioned, in any context except in the case
of Section 502(1), the payment of interest on, or in respect of, any Note of any
series, any such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established pursuant to
this Indenture to the extent that, in such context, Additional Amounts are, were
or would be payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
If the Notes of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Notes (or if the Notes of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying
Agent or Paying Agents whether such payment of principal of and any premium or
interest on the Notes of that series shall be made to Holders of Notes of that
series who are not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in the Notes of
the series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Notes of that series and the Company will
pay to the Trustee or such Paying Agent the Additional Amounts required by the
terms of such Notes. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Notes of a series until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with
respect to the Notes of a series without withholding or deductions until
otherwise advised. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any them or in reliance on any
Officers' Certificate furnished pursuant to this Section or in reliance on the
Company's not furnishing such an Officers' Certificate.
SECTION 1013. Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1010, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Notes of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE XI
REDEMPTION OF NOTES
SECTION 1101. Applicability of Article. The Notes may be redeemed at any
time at the option of the Company, in whole or in part, at a redemption price
equal to the sum of (i) the principal amount of the Notes being redeemed plus
accrued interest thereon to the Redemption Date and (ii) the Make-Whole Amount,
if any, with respect to such Notes (the "Redemption Price"). The Notes shall be
redeemable in accordance with their terms and in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Notes shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Notes of any series, the Company shall, at least 45 days prior
to the giving of the notice of redemption required by Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Notes of such series to be
redeemed. In the case of any redemption of Notes prior to the expiration of any
restriction on such redemption provided in the terms of such Notes or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Notes to Be Redeemed. If less than
all of the Notes of any series are to be redeemed, the particular Notes to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Notes of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Notes of that series or any integral
multiple thereof) of the principal amount of Notes of such series of a
denomination larger than the minimum authorized denomination for Notes of that
series.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Notes selected for redemption and, in
the case of any Notes selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Notes shall relate, in the case of
any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date to each Holder of Notes to be redeemed, but failure
to give such notice in the manner herein provided to the Holder of any Note
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Note or portion thereof.
Any notice that is mailed to the Holders of Registered Notes in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Notes of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Note or Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the notice which
relates to such Note shall state that on and after the Redemption Date,
upon surrender of such Note, the holder
will receive, without a charge, a new Note or Notes of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Note, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Notes maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is that case,
(8) the CUSIP number of such Note, and
(9) that such securities will cease to accrue interest after the
Redemption Date.
Notice of redemption of Notes to be redeemed shall be given by the Company
or, at the Company's request, may be given by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one Business Day prior
to any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money sufficient to
pay on the Redemption Date the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all of
the Notes or portions thereof which are to be redeemed on that date.
SECTION 1106. Notes Payable on Redemption Date. Notice of redemption having
been given as aforesaid, the Notes so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price, and from and after such
date (unless the Company shall default in the payment of the Redemption Price)
such Notes shall, if the same were interest-bearing, cease to bear interest.
Upon surrender of any such Note for redemption in accordance with said notice,
such Note shall be paid by the Company at the Redemption Price; provided,
however, that installments of interest on Registered Notes whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Notes, or one or more Predecessor Notes, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
Subject to Section 1113, if any Note called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium or
Make-Whole Amount, if any) shall, until paid, bear interest from the Redemption
Date at the rate borne by the Note.
SECTION 1107. Notes Redeemed in Part. Any Registered Note which is to be
redeemed only in part (pursuant to the provisions of this Article) shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his or her attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge a new Note or Notes of the same
series, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
ARTICLE XII
GUARANTY
SECTION 1201. Guaranty. The Guarantor, as primary obligor and not merely as
surety, hereby irrevocably and unconditionally guarantees to each Holder and to
the Trustee and its successors and assigns (a) the full and punctual payment
when due, whether at Stated Maturity, by acceleration or otherwise, of all
obligations of the Company now or hereafter existing under this Indenture
whether for principal of or interest on the Notes, (and premium and Make-Whole
Amount if any) and all other monetary obligations of the Company under this
Indenture and the Notes in respect of the Notes and (b) the full and punctual
performance within the applicable grace periods of all other obligations of the
Company under this Indenture and the Notes (all such obligations guaranteed
hereby by the Guarantor being the "Guaranteed Obligations"). The guaranty of the
Guarantor under this Article 12 is herein referred to as this "Guaranty".
The Guarantor agrees to pay any and all fees and expenses (including
reasonable attorney's fees and expenses) incurred by the Trustee or the Holders
in enforcing any rights under this Article 12 with respect to the Guarantor.
Without limiting the generality of the foregoing, this Guaranty guarantees,
to the extent provided herein, the payment of all amounts which constitute part
of the Guaranteed Obligations and would be owed by the Company under this
Indenture or the Notes but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
SECTION 1202. Guaranty Absolute. This Guaranty is irrevocable, absolute and
unconditional. The Guarantor guarantees that the Guaranteed Obligations will be
performed strictly in accordance with the terms of this Indenture, regardless of
any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Trustee or the Holders with
respect thereto. The obligations of the Guarantor under this Guaranty are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against the Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against the Company or any other
guarantor or whether the Company or any other guarantor is joined in any such
action or actions. The liability of the Guarantor under this Guaranty shall be
absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of this Indenture or the
Notes with respect to the Company or any agreement or instrument relating
thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of any of the Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from this Indenture;
(c) the failure to give notice to the Guarantor of the occurrence of a
default under the provisions of this Indenture or the Notes;
(d) any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(e) any failure, omission, delay by or inability on the part of the
Trustee or the Holders to assert or exercise any right, power or remedy
conferred on the Trustee or the Holders in this Indenture or the Notes;
(f) any change in the corporate or other structure, or termination,
dissolution, consolidation or merger of the Company or the Guarantor with
or into any other entity, the voluntary or involuntary liquidation,
dissolution, sale or other disposition of all or substantially all the
assets of the Company or the Guarantor, the marshaling of the assets and
liabilities of the Company or the Guarantor, the receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors, or readjustments of, or other
similar proceedings affecting the Company or the Guarantor, or any of the
assets of any of them;
(g) the assignment of any right, title or interest of the Trustee or
any Holder in this Indenture or the Notes to any other Person; or
(h) any other event or circumstance (including any statute of
limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Company or the Guarantor,
other than performance in full of the Guaranteed Obligations for the
payment of money; it being the intent of the Guarantor that its obligations
hereunder shall not be discharged except by payment of all amounts owing
pursuant to this Indenture or the Notes.
This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment or performance with respect to any of the
Guaranteed Obligations is rescinded or must otherwise be returned by the
Trustee, any Holder or any other Person upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, all as though such payment or
performance had not been made or occurred. The obligations of the Guarantor
under this Guaranty shall not be subject to reduction, termination or other
impairment by any set-off, recoupment, counterclaim or defense or for any other
reason.
SECTION 1203. Waivers. The Guarantor hereby irrevocably waives, to the
extent permitted by applicable law:
(a) promptness, diligence, notice of acceptance and any other notice
with respect to any of the Guaranteed Obligations and this Guaranty;
(b) any requirement that the Trustee, any Holder or any other Person
protect, secure, perfect or insure any Encumbrance or any property subject
thereto or exhaust any right or take any action against the Company or any
other Person, or obtain any relief pursuant to this Indenture or pursue any
other available remedy;
(c) all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Indenture or the Notes;
(d) any defense arising by reason of any claim or defense based upon
an election of remedies by the Trustee or any Holder which in any manner
impairs, reduces, releases or otherwise adversely affects its subrogation,
contribution or reimbursement rights or other rights to proceed against the
Company or any other Person; and
(e) any duty on the part of the Trustee or any Holder to disclose to
the Guarantor any matter, fact or thing relating to the business, operation
or condition of the Company and its assets now known or hereafter known by
the Trustee or such Holder.
SECTION 1204. Waiver of Subrogation and Contribution. Until this Indenture
has been discharged, the Guarantor hereby irrevocably waives any claim or other
right which it may now or hereafter acquire against the Company or any guarantor
that arise from the existence, payment, performance or enforcement of the
Guarantor's obligations under this Guaranty, including any right of subrogation,
reimbursement, exoneration, contribution, indemnification, any right to
participate in any claim or remedy of the Trustee or any Holder against the
Company or any guarantor which the Trustee or any Holder now has or hereafter
acquires, whether or not such claim, remedy or right arises in equity, or under
contract, statute or common law, including the right to take or receive from the
Company, directly or indirectly, in cash or other property or by setoff or in
any other manner, payment or security on account of such claim or other rights.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence and the Guaranteed Obligations shall not have been paid in full, such
amount shall be deemed to have been paid to the Guarantor for the benefit of,
and held in trust for the benefit of, the Trustee, and the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited
and applied to the Guaranteed Obligations, whether matured or unmatured, in
accordance with the terms of this Indenture. The Guarantor acknowledges that it
will receive direct and indirect benefits from the financing arrangements
contemplated by this Indenture and that the waivers set forth in this Section
1204 are knowingly made in contemplation of such benefits.
The Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. The Guarantor
further agrees that, as between itself, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 5 hereof for the purposes of
this Guaranty, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (y) in the event of any declaration of acceleration of such obligations as
provided in Article 5 hereof, such obligations (whether or not due and payable)
shall forthwith become due and payable by the Guarantor for the purpose of this
Guaranty.
SECTION 1205. Certain Agreements. The Guarantor covenants and agrees that,
as a condition to the acceptability of this Guaranty to the Trustee and the
Holders, the Guarantor will:
(a) comply in all material respects with all applicable laws, rules,
regulations and orders, such compliance to include paying when due all
taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith; and
(b) preserve and maintain its existence, rights (contractual and
statutory) and franchises; provided, however, that the Guarantor shall not
be required to preserve any right or franchise if the general partner of
the Guarantor shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Guarantor and the loss
thereof is not disadvantageous in any material respect to the Guarantor or
the Holders.
(c) not consolidate with or merge with or into (whether or not such
Guarantor is the surviving Person) another Person whether or not affiliated
with such Guarantor unless:
(i) the Person formed by or surviving any such consolidation or
merger (if other than a Guarantor or the Company) unconditionally
assumes all the obligations of the Guarantor, pursuant to a
supplemental indenture in form and substance satisfactory to the
Trustee, under the Notes, the Indenture and the Guaranty on the terms
set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no
default or Event of Default exists.
Any such consolidation, merger, sale, lease or conveyance is subject to
the condition that the Trustee receive an Officers' Certificate of the Guarantor
and an Opinion of Counsel to the effect that the merger, sale, lease or
conveyance, and the assumption by any successor entity, complies with the
provisions of this Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guaranty endorsed upon the Notes and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Guarantor,
such successor Person shall succeed to and be substituted for the Guarantor with
the same effect as if it had been named herein as a Guarantor. The Guaranty
shall in all respects have the same legal rank and benefit under this Indenture
theretofore and thereafter issued in accordance with the terms of this Indenture
as though such Guaranty had been issued at the date of the execution hereof.
Except as set forth in Articles 8 and 10 hereof, and notwithstanding
clauses (a) and (b) above, nothing contained in this Indenture or in any of the
Notes shall prevent any consolidation or merger of the Guarantor with or into
the Company or shall prevent any sale or conveyance of the property of the
Guarantor as an entirety or substantially as an entirety to the Company.
SECTION 1206. No Waiver; Cumulative Remedies. No failure on the part of the
Trustee or any Holder to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law. The Trustee and the Holders
shall have all of the rights and remedies granted in this Indenture and
available at law or in equity, and these same rights and remedies may be pursued
separately, successively or concurrently against the Company or the Guarantor.
SECTION 1207. Continuing Guaranty. The Guaranty is a continuing guaranty
and, except as otherwise provided herein, shall (a) remain in full force and
effect until the satisfaction of the Guaranteed Obligations, (b) be binding upon
the Guarantor and (c) enure to the benefit of and be enforceable by the Trustee,
the Holders and their successors, transferees and assigns.
SECTION 1208. Severability. Any provisions of this Article 12 which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization, without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
SECTION 1209. Limitation on Guarantor Liability. The Guarantor, and by its
acceptance hereof, each Holder, hereby confirms that it is the intention of all
such parties that the guaranty by such Guarantor pursuant to its Guaranty not
constitute a fraudulent transfer or conveyance for purposes of the Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law. To effectuate the foregoing intention, the
Holders and the Guarantor hereby irrevocably agree that the obligations of such
Guarantor under this Article 12 shall be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such
Guarantor that are relevant under such laws and after giving effect to any
collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under this Article 12, if
any, result in the obligations of the Guarantor under the Guaranty not
constituting a fraudulent transfer or conveyance.
ARTICLE XIII
[OMITTED]
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. The provisions of this Article shall be
applicable to the Notes, and the Company may at its option by Board Resolution,
at any time, with respect to the Notes, elect to have Section 1402 or Section
1403 applied to such Outstanding Notes upon compliance with the conditions set
forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise of the
above option applicable to this Section with respect to any Notes of or within a
series, the Company shall be deemed to have been discharged from its obligations
with respect to such Outstanding Notes on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Notes, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all of its other obligations under such Notes and
this Indenture insofar as such 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 survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of such Outstanding Notes to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest, if any, on such Notes appertaining
thereto when such payments are due, (B) the Company's obligations with respect
to such Notes under Sections 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Notes as contemplated by Section
1012, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder, including Section 606 and (D) this Article. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 1403 with
respect to such Notes.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of the above
option applicable to this Section with respect to any Notes, the Company shall
be released from its obligations under Sections 1004 to 1010, inclusive, with
respect to such Outstanding Notes on and after the date the conditions set forth
in Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Notes shall thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1004 to 1010,
inclusive, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a default or an Event of Default under Section 501(6) but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Notes of or within a series:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article 14 applicable to it) as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the
Holders of such Notes, (1) an amount of money or (2) Government Obligations
applicable to such Notes which through the scheduled payment of principal
and interest in respect thereof in accordance with the terms will provide,
not later than one day before the due date of any payment of principal of
and premium or Make-Whole Amount, if any and interest on such Notes, money
in an amount, or (3) a combination thereof, any case, in an amount
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the principal
of (and premium or Make-Whole Amount, if any), and interest on such
Outstanding Notes on the Stated Maturity of such principal or installment
of principal or interest or analogous payments applicable to such
Outstanding Notes on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Notes.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Notes shall have
occurred and be continuing on the date of such deposit or, insofar as
Sections 501(5) and 501(6) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of
such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Notes will not
recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding 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 times as would have been the case if such covenant
defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the
Company with respect to the trust funds representing such deposit or by the
Trustee for such trust funds or (ii) all necessary registrations under said
Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith.
SECTION 1405. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Notes of any series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent as the Trustee may determine, to the Holders of such Notes of all sums due
and to become due thereon in respect of principal (and premium or Make-Whole
Amount, if any) and interest but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Notes.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon the Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE XV
MEETINGS OF HOLDERS OF NOTES
SECTION 1501. Purposes for which Meetings May be Called. A meeting of
Holders of Notes of any series may be called at any time and from time to time
pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Notes of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Notes of any series for any purpose
specified in Section 1501, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of Holders of Notes of any
series, setting forth the time and the place of such meeting and in general
terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company pursuant to a Board Resolution, or the
Holders of at least 10% in principal amount of the Outstanding Notes of any
series shall have requested the Trustee to call a meeting of the Holders of
Notes of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Notes of such series in the amount above specified, as
the case may be, may determine the time and the place for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Notes of any series, a Person shall be (1) a Holder
of one or more Outstanding Notes of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
outstanding Notes of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of Notes
of any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and the Guarantor and their counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Notes of a series shall constitute a quorum
for a meeting of Holders of Notes of such series; provided, however, that if any
Act is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Notes of a series,
the Persons entitled to vote such specified percentage in principal amount of
the Outstanding Notes of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Notes of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Notes of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Notes of that series; provided, however,
that, except as limited by the proviso to Section 902, any resolution with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may be made, given
or taken by the Holders of a specific percentage,
that is less than a majority in principal amount of the Outstanding Notes of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Notes of
that series.
Any resolution passed or decision taken at any meeting of Holders of Notes
of any series duly held in accordance with this Section shall be binding on all
of the Holders of Notes of such series, whether or not present or represented at
the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Notes of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other act that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal amount of all
Outstanding Notes affected thereby, or of the Holders of such series and one or
more additional series:
(i) there shall be no minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Notes of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Notes of a series in regard to proof of the holding of Notes of such
series and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of Notes
shall be proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Notes provided in Section 1502(b), in which case the
Company or the Holders of Notes of the series calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Notes of such
series represented at the meeting.
(c) At any meeting each Holder of a Note of such series or proxy shall be
entitled to one vote for each $1,000 principal amount of the Outstanding Notes
of such series held or represented by him; provided, however, that no vote shall
be cast or counted at any meeting in respect of any Note challenged as not
Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Note of such series or proxy.
(d) Any meeting of Holders of Notes of any series duly called pursuant to
Section 1502 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding Notes
of such series represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Notes of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Notes of such series or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Notes of such series
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in duplicate, of the proceedings of each meeting of
Holders of Notes of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or
more persons having knowledge of the fact, setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1502
and, if applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of meeting and one such copy
shall be delivered to the Company and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any request, demand,
authorization, direction, notice, consent, waiver or other Act provided by this
Indenture to be given or taken by a specified percentage in principal amount of
the Holders of any or all series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such specified percentage
of Holders in person or by an agent duly appointed in writing; and, except as
herein otherwise expressly provided, such Act shall become effective when such
instrument or instruments are delivered to the Trustee. Proof and execution of
any instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Article 6) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject to Article 6, the
execution of any instrument by a Holder or his or her agent or proxy may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in manner as shall be satisfactory to the Trustee.
**********
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
CARRAMERICA REALTY CORPORATION
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
CARRAMERICA REALTY, L.P., as Guarantor
By: CARRAMERICA REALTY GP
HOLDINGS, INC., as General Partner
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
BANKERS TRUST COMPANY, as Trustee
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
ANNEX A TO INDENTURE
[FORM OF INITIAL NOTE]
[INCLUDE IF A GLOBAL NOTE -- UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
00 XXXXX XXXXXX, XXX XXXX, XXX XXXX, TO THE COMPANY (AS DEFINED BELOW) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE IF A GLOBAL NOTE -- THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
SET FORTH IN THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF DTC OR A NOMINEE OF DTC. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS
NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.]
[RESTRICTED SECURITIES LEGEND]
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. NOTES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE.
BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"), (2)
AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY EXCEPT (A) TO CARRAMERICA REALTY CORPORATION (THE "COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER ("QIB") IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE NOTES A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE) OR
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED
HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SUCH NOTE
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR
THE NOTES. IF THE PROPOSED TRANSFEREE IS NOT THE COMPANY, A SUBSIDIARY THEREOF
OR A QIB TO WHICH THIS NOTE IS BEING TRANSFERRED IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE FOR THE NOTES SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UNLESS THE
TRANSFER HAS BEEN REGISTERED UNDER THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT.
Registered No.
PRINCIPAL AMOUNT
CUSIP No.:
CARRAMERICA REALTY CORPORATION
6.625% NOTE DUE 2005
CARRAMERICA REALTY CORPORATION, a corporation duly organized and existing
under the laws of the State of Maryland (herein referred to as the "Company"
which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________________ or registered assigns, upon presentation, the principal sum of
__________________ on March 1, 2005 and to pay interest on the outstanding
principal amount thereon from February 23, 1998, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on March 1 and September 1 in each year,
commencing September 1, 1998, at the rate of 6.625% per annum, until the entire
principal hereof is paid or made available for payment; provided, however, that
if the Company or the Guarantor fail to fulfill their obligations in accordance
with and under the Registration Rights Agreement, additional interest will
accrue on this Note at the rate and to the extent set forth in the Registration
Rights Agreement. The interest so payable and punctually paid or duly provided
for on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Note is registered at
the close of business on the Regular Record Date for such interest which shall
be the February 15 or August 15 (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such defaulted interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes not more than 15 days and
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at the office
or agency maintained for that purpose in the City of New York, New York, or
elsewhere as provided in the Indenture, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payments of principal and interest on the Notes (other than payments of
principal and interest due at Maturity) may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Notes of this series are one of a duly authorized issue of securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of February 23, 1998 (the "Indenture"),
among the Company, CarrAmerica Realty, L.P., as Guarantor (herein called the
"Guarantor"), and Banker Trust Company (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Note is one of
the series designated therein.
Notes of this series may be redeemed at any time at the option of the
Company, in whole or in part, upon notice of not more than 60 nor less than 30
days prior to the Redemption Date, at a redemption price equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Note.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Notes, the Holders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as
Trustee and offered the Trustee reasonable indemnity and the Trustee shall not
have received from the Holders of a majority in principal amount of Notes of
this series at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Note for the enforcement of
any payment of principal hereof or any interest on or after the respective due
dates expressed herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Notes of each series of Notes then Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair (i) the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed, or (ii) the obligations of the Guarantor, which are
unconditional, in respect of the Guaranteed Obligations.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any Place of Payment where the principal of (and Make-Whole
Amount, if any, on) and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new Notes of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Note, or because of any indebtedness evidenced
hereby or thereby, shall be had against any promoter, as such, or against any
past, present or future stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Note by the Holder thereof and as part of the consideration
for the issue of the Notes of this series.
All capitalized terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a "CUSIP" number to
be printed on the Notes of this series as a convenience to the Holders of such
Notes. No representation is made as to the correctness or accuracy of such CUSIP
number as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, CARRAMERICA REALTY CORPORATION has caused this
instrument to be duly executed under its corporate seal.
Dated: February 23, 1998
CARRAMERICA REALTY CORPORATION
By: ____________________________
Name:
Title:
[Corporate Seal]
Attest:
___________________________
Secretary
CARRAMERICA REALTY, L.P., as Guarantor
By: CARRAMERICA REALTY GP HOLDINGS,
INC., as General Partner
By: __________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By: ___________________________________
Name:
Title:
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
|-----------------------------------------------|
| |
|-----------------------------------------------|...............................
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Note of CarrAmerica Realty Corporation and hereby does irrevocably
constitute and appoint
...................................Attorney to transfer said Note on the books
of the within-named Company with full power of substitution in the premises.
Dated: ..................... ................................................
................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
================================================================================
ANNEX B TO INDENTURE
[FORM OF INITIAL NOTE]
[INCLUDE IF A GLOBAL NOTE -- UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
00 XXXXX XXXXXX, XXX XXXX, XXX XXXX, TO THE COMPANY (AS DEFINED BELOW) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE IF A GLOBAL NOTE -- THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
SET FORTH IN THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF DTC OR A NOMINEE OF DTC. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS
NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.]
[RESTRICTED SECURITIES LEGEND]
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED
INVESTOR"), (2) AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER
THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER
THE NOTE EVIDENCED HEREBY EXCEPT (A) TO CARRAMERICA REALTY CORPORATION (THE
"COMPANY") OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER
("QIB") IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
TRUSTEE FOR THE NOTES A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE) OR
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED
HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SUCH NOTE
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR
THE NOTES. IF THE PROPOSED TRANSFEREE IS NOT THE COMPANY, A SUBSIDIARY THEREOF
OR A QIB TO WHICH THIS NOTE IS BEING TRANSFERRED IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE FOR THE NOTES SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UNLESS THE
TRANSFER HAS BEEN REGISTERED UNDER THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT.
Registered No.
PRINCIPAL AMOUNT
CUSIP No.:
CARRAMERICA REALTY CORPORATION
6.875% NOTE DUE 2008
CARRAMERICA REALTY CORPORATION, a corporation duly organized and existing
under the laws of the State of Maryland (herein referred to as the "Company"
which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________________ or registered assigns, upon presentation, the principal sum of
__________________ on March 1, 2008 and to pay interest on the outstanding
principal amount thereon from February 23, 1998, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on March 1 and September 1 in each year,
commencing September 1, 1998, at the rate of 6.875% per annum, until the entire
principal hereof is paid or made available for payment; provided, however, that
if the Company or the Guarantor fail to fulfill their obligations in accordance
with and under the Registration Rights Agreement, additional interest will
accrue on this note at the rate and to the extent set forth in the Registration
Rights Agreement. The interest so payable and punctually paid or duly provided
for on any Interest Payment Date will, as provided in the Indenture, be paid to
the Person in whose name this Note is registered at the close of business on the
Regular Record Date for such interest which shall be the February 15 or August
15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular Record
Date, and may either be paid to the Person in whose name this Note is registered
at the close of business on a Special Record Date for the payment of such
defaulted interest to be fixed by the Trustee, notice whereof shall be given to
Holders of the Notes not more than 15 days and not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. Payment of the principal of and
interest on this Note will be made at the office or agency maintained for that
purpose in the City of New York, New York, or elsewhere as provided in the
Indenture, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payments of principal and
interest on the Notes (other than payments of principal and interest due at
Maturity) may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Notes of this series are one of a duly authorized issue of securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of February 23, 1998 (the "Indenture"),
among the Company, CarrAmerica Realty, L.P., as Guarantor (herein called the
"Guarantor"), and Bankers Trust Company (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Note is one of
the series designated therein.
Notes of this series may be redeemed at any time at the option of the
Company, in whole or in part, upon notice of not more than 60 nor less than 30
days prior to the Redemption Date, at a redemption price equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Note.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with respect to the
Notes,
the Holders of not less than 25% in principal amount of the Notes of this series
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in principal amount of Notes of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Notes of each series of Notes then Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair (i) the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed, or (ii) the obligations of the Guarantor, which are
unconditional, in respect of the Guaranteed Obligations.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any Place of Payment where the principal of (and Make-Whole
Amount, if any, on) and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his or
her attorney duly authorized in writing, and thereupon one or more new Notes of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Note, or because of any indebtedness evidenced
hereby or thereby, shall be had against any promoter, as such, or against any
past, present or future stockholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Note by the Holder thereof and as part of the consideration
for the issue of the Notes of this series.
All capitalized terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a "CUSIP" number to
be printed on the Notes of this series as a convenience to the Holders of such
Notes. No representation is made as to the correctness or accuracy of such CUSIP
number as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, CARRAMERICA REALTY CORPORATION has caused this
instrument to be duly executed under its corporate seal.
Dated: February 23, 1998
CARRAMERICA REALTY CORPORATION
By: ____________________________
Name:
Title:
[Corporate Seal]
Attest:
___________________________
Secretary
CARRAMERICA REALTY, L.P., as Guarantor
By: CARRAMERICA REALTY GP HOLDINGS,
INC., as General Partner
By: __________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By: ___________________________________
Authorized Signatory
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
|-----------------------------------------------|
| |
|-----------------------------------------------|...............................
................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Note of CarrAmerica Realty Corporation and hereby does irrevocably
constitute and appoint
....................................Attorney to transfer said Note on the books
of the within-named Company with full power of substitution in the premises.
Dated: ..................... ................................................
................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
================================================================================
ANNEX C TO INDENTURE
[INCLUDE IF A GLOBAL NOTE -- UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
00 XXXXX XXXXXX, XXX XXXX, XXX XXXX, TO THE COMPANY (AS DEFINED BELOW) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE IF A GLOBAL NOTE -- THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
SET FORTH IN THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF DTC OR A NOMINEE OF DTC. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS
NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.]
[INCLUDE IF A PRIVATE EXCHANGE SECURITY -- THE NOTE EVIDENCED HEREBY HAS
NOT BEEN REGISTERED UNDER THE U.S. NOTES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"), (2) AGREES
THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY EXCEPT (A) TO CARRAMERICA REALTY CORPORATION (THE "COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER ("QIB") IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE NOTES A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM SUCH TRUSTEE) OR
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON
TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED
HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SUCH NOTE
UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE
HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE FOR
THE NOTES. IF THE PROPOSED TRANSFEREE IS NOT THE COMPANY, A SUBSIDIARY THEREOF
OR A QIB TO WHICH THIS NOTE IS BEING TRANSFERRED IN COMPLIANCE WITH RULE 144A
UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO
THE TRUSTEE FOR THE NOTES SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY OR THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT UNLESS THE
TRANSFER HAS BEEN REGISTERED UNDER THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT.]
Registered No.
PRINCIPAL AMOUNT
CUSIP No.:
CARRAMERICA REALTY CORPORATION
6.625% NOTE DUE 2005
CARRAMERICA REALTY CORPORATION, a corporation duly organized and existing
under the laws of the State of Maryland (herein referred to as the "Company"
which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________________ or registered assigns, upon presentation, the principal sum of
_______________ on March 1, 2005 and to pay interest on the outstanding
principal amount thereon from February 23, 1998, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on March 1 and September 1 in each year,
commencing September 1, 1998, at the rate of 6.625% per annum, until the entire
principal hereof is paid or made available for payment. The interest so payable
and punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person
in whose name this Note is registered at the close of business on a Special
Record Date for the payment of such defaulted interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Notes not more than 15
days and not less than 10 days prior to such Special Record Date, or may be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. Payment of the principal of and interest on this Note will be made at
the office or agency maintained for that purpose in the City of New York, New
York, or elsewhere as provided in the Indenture, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that at the option of the
Company payments of principal and interest on the Notes (other than payments of
principal and interest due at Maturity) may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Notes of this series are one of a duly authorized issue of securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of February 23, 1998 (the "Indenture"),
among the Company, CarrAmerica Realty, L.P., as Guarantor (herein called the
"Guarantor"), and Bankers Trust Company (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Note is one of
the series designated therein.
Notes of this series may be redeemed at any time at the option of the
Company, in whole or in part, upon notice of not more than 60 nor less than 30
days prior to the Redemption Date, at a redemption price equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Note.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes of this
series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and the Trustee shall not have received
from the Holders of a majority in principal amount of Notes of this series at
the time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Notes of each series of Notes then Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair (i) the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed, or (ii) the obligations of the Guarantor, which are
unconditional, in respect of the Guaranteed Obligations.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company in any Place of Payment where the principal of (and
Make-Whole Amount, if any) and interest on this Note are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of this
series, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose
name this Note is registered as the owner hereof for all purposes, whether or
not this Note be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Note, or because of any indebtedness evidenced
hereby or thereby, shall be had against any promoter, as such, or against any
past, present or future shareholder, officer or director, as such, of the
Company or of any successor, either directly or through the Company or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Note by the Holder thereof and as part of the consideration
for the issue of the Notes of this series.
All capitalized terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a "CUSIP" number to
be printed on the Notes of this series as a convenience to the Holders of such
Notes. No representation is made as to the correctness or accuracy of such CUSIP
number as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, CARRAMERICA REALTY CORPORATION has caused this
instrument to be executed under its corporate seal.
Dated:
CARRAMERICA REALTY CORPORATION
By: ____________________________
Name:
Title:
[Corporate Seal]
Attest:
___________________________
Secretary
CARRAMERICA REALTY, L.P., as Guarantor
By: CARRAMERICA REALTY GP HOLDINGS,
INC., as General Partner
By: __________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By: ___________________________________
Authorized Signatory
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
|-----------------------------------------------|
| |
|-----------------------------------------------|...............................
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Note of CarrAmerica Realty Corporation and hereby does irrevocably
constitute and appoint
................................... Attorney to transfer said Note on the books
of the within-named Company with full power of substitution in the premises.
Dated: ..................... .......................................
.......................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
================================================================================
ANNEX D TO INDENTURE
[INCLUDE IF A GLOBAL NOTE -- UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
00 XXXXX XXXXXX, XXX XXXX, XXX XXXX, TO THE COMPANY (AS DEFINED BELOW) OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[INCLUDE IF A GLOBAL NOTE -- THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING
SET FORTH IN THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF DTC OR A NOMINEE OF DTC. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN
THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS
NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.]
[INCLUDE IF A PRIVATE EXCHANGE SECURITY -- THE NOTE EVIDENCED HEREBY HAS
NOT BEEN REGISTERED UNDER THE U.S. NOTES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE
UNITED STATES EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR
(7) UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"), (2) AGREES
THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED
HEREBY EXCEPT (A) TO CARRAMERICA REALTY CORPORATION (THE "COMPANY") OR ANY
SUBSIDIARY THEREOF, (B) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER ("QIB") IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THE NOTES A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM SUCH TRUSTEE) OR (E) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) AND
(3) AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND IN CONNECTION WITH ANY TRANSFER OF
THE NOTE EVIDENCED HEREBY PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SUCH NOTE UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE
REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS
CERTIFICATE TO THE TRUSTEE FOR THE NOTES. IF THE PROPOSED TRANSFEREE IS NOT THE
COMPANY, A SUBSIDIARY THEREOF OR A QIB TO WHICH THIS NOTE IS BEING TRANSFERRED
IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, THE HOLDER MUST, PRIOR TO
SUCH TRANSFER, FURNISH TO THE TRUSTEE FOR THE NOTES SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY OR THE TRUSTEE MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT UNLESS THE TRANSFER HAS BEEN REGISTERED UNDER THE SECURITIES ACT.
THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT.]
Registered No.
PRINCIPAL AMOUNT
CUSIP No.:
CARRAMERICA REALTY CORPORATION
6.875% NOTE DUE 2008
CARRAMERICA REALTY CORPORATION, a corporation duly organized and existing
under the laws of the State of Maryland (herein referred to as the "Company"
which term shall include any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_________________ or registered assigns, upon presentation, the principal sum of
__________________ on March 1, 2008 and to pay interest on the outstanding
principal amount thereon from February 23, 1998, or from the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for, semi-annually in arrears on ____ and _____ in each year, commencing
_________, 1998, at the rate of ___% per annum, until the entire principal
hereof is paid or made available for payment. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such interest
which shall be the _____ or ______ (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Note is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes not more than 15 days and
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at the office
or agency maintained for that purpose in the City of New York, New York, or
elsewhere as provided in the Indenture, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payments of principal and interest on the Notes (other than payments of
principal and interest due at Maturity) may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Notes of this series are one of a duly authorized issue of securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of February 23, 1998 (the "Indenture"),
among the Company, CarrAmerica Realty, L.P., as Guarantor (herein called the
"Guarantor"), and Bankers Trust Company (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Guarantor, the Trustee and the Holders of the Notes and of the
terms upon which the Notes are authenticated and delivered. This Note is one of
the series designated therein.
Notes of this series may be redeemed at any time at the option of the
Company, in whole or in part, upon notice of not more than 60 nor less than 30
days prior to the Redemption Date, at a redemption price equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Company, in each case, upon compliance by the Company with certain conditions
set forth in the Indenture, which provisions apply to this Note.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Note shall not have the right to institute any proceeding with respect
to the Indenture or for the appointment of a receiver or trustee or for any
other remedy thereunder, unless such Holder shall have previously given written
notice to the Trustee of a continuing Event of Default with respect to the
Notes, the Holders of not less than 25% in principal amount of the Notes of this
series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity and the Trustee shall not have received from
the Holders of a majority in principal amount of Notes of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Note for the enforcement of any payment of
principal hereof or any interest on or after the respective due dates expressed
herein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes of each series to be affected
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in principal amount of the
Outstanding Notes of each series of Notes then Outstanding affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair (i) the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and Make-Whole Amount, if
any) and interest on this Note at the times, place and rate, and in the coin or
currency, herein prescribed, or (ii) the obligations of the Guarantor, which are
unconditional, in respect of the Guaranteed Obligations.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any Place of Payment where the principal of (and Make-Whole
Amount, if any) and interest on this Note are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Notes of this
series, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes of this series are issuable only in registered form in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Notes of this
series are exchangeable for a like aggregate principal amount of Notes of this
series of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement contained
in the Indenture or in this Note, or because of any indebtedness evidenced
hereby or thereby, shall be had against any promoter, as such, or against any
past, present or future shareholder, officer or director, as
such, of the Company or of any successor, either directly or through the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Note by the Holder thereof and as part of the consideration
for the issue of the Notes of this series.
All capitalized terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE NOTES, INCLUDING THIS NOTE, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused a "CUSIP" number to
be printed on the Notes of this series as a convenience to the Holders of such
Notes. No representation is made as to the correctness or accuracy of such CUSIP
number as printed on the Notes, and reliance may be placed only on the other
identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, CARRAMERICA REALTY CORPORATION has caused this
instrument to be executed under its corporate seal.
Dated:
CARRAMERICA REALTY CORPORATION
By: ____________________________
Name:
Title:
[Corporate Seal]
Attest:
___________________________
Secretary
CARRAMERICA REALTY, L.P., as Guarantor
By: CARRAMERICA REALTY GP HOLDINGS,
INC., as General Partner
By: __________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By: ___________________________________
Authorized Signatory
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
|-----------------------------------------------|
| |
|-----------------------------------------------|...............................
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Note of CarrAmerica Realty Corporation and hereby does irrevocably
constitute and appoint
................................... Attorney to transfer said Note on the books
of the within-named Company with full power of substitution in the premises.
Dated: ..................... ................................................
................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Note in every particular, without
alteration or enlargement or any change whatever.
================================================================================
EXHIBIT [A]
FORM OF CERTIFICATE OF TRANSFER
CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Department
Re: 6.625% Notes due 2005
6.875% Notes due 2008
Reference is hereby made to the Indenture, dated as of February 23, 1998
(the "Indenture"), between CarrAmerica Realty Corporation, as issuer (the
"Company"), CarrAmerica Realty L.P., as Guarantor, and Bankers Trust Company, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the
Note[s] or interest in such Note[s] specified in Annex A hereto, in the
principal amount of $___________ in such Note[s] or interests (the "Transfer"),
to __________ (the "Transferee"), as further specified in Annex A hereto. In
connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in a
Definitive Note Pursuant to Rule 144A. The Transfer is being effected pursuant
to and in accordance with Rule 144A under the United States Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, the Transferor hereby
further certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believed and believes is
purchasing the beneficial interest or Definitive Note for its own account, or
for one or more accounts with respect to which such Person exercises sole
investment discretion, and such Person and each such account is a "qualified
institutional buyer" within the meaning of Rule 144A in a transaction meeting
the requirements of Rule 144A and such Transfer is in compliance with any
applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Restricted Securities
Legend printed on the 144A Global Note and/or the Definitive Note and in the
Indenture and the Securities Act.
2. Check and complete if Transferee will take delivery of a beneficial
interest in a Definitive Note pursuant to any provision of the Securities Act
other than Rule 144A. The Transfer is being effected in compliance with the
transfer restrictions applicable to beneficial interests in Restricted Global
Notes and Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act and any applicable blue sky securities laws of any state of the
United States, and accordingly the Transferor hereby further certifies that
(check one):
(a) such Transfer is being effected pursuant to and in accordance with
Rule 144 under the Securities Act;
or
(b) such Transfer is being effected to the Company or a subsidiary thereof;
or
(c) such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus
delivery requirements of the Securities Act;
or
(d) such Transfer is being effected to an Institutional Accredited Investor
and pursuant to an exemption from the registration requirements of the
Securities Act other than Rule 144A or Rule 144, and the Transferor hereby
further certifies that the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or Restricted
Definitive Notes and the requirements of the exemption claimed, which
certification is supported by (1) a certificate executed by the Transferee in
the form of Exhibit D to the Indenture and (2) if such Transfer is in respect of
a principal amount of Notes at the time of transfer of less than $100,000, an
Opinion of Counsel provided by the Transferor or the Transferee (a copy of which
the Transferor has attached to this certification), to the effect that such
Transfer is in compliance with the Securities Act. Upon consummation of the
proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on
transfer enumerated in the Restricted securities Legend printed on the
Definitive Notes and in the Indenture and the Securities Act.
3. Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being
effected pursuant to and in accordance with Rule 144 under the Securities Act
and in compliance with the transfer restrictions contained in the Indenture and
any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Restricted
Securities Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the
Restricted Securities Legend printed on the Restricted Global Notes, on
Restricted Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is
being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144 and in
compliance with the transfer restrictions contained in the Indenture and any
applicable blue sky securities laws of any State of the United States and (ii)
the restrictions on transfer contained in the Indenture and the Restricted
Securities Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will not be subject to the restrictions on transfer enumerated in the
Restricted Securities Legend printed on the Restricted Global Notes or
Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
_______________________________
[Insert Name of Transferor]
By: ___________________________
Name:
Title:
Dated: _________________, ___
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the 144A Global Note (CUSIP ______), or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP ________), or
(ii) Unrestricted Global Note (CUSIP ________); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
EXHIBIT [B]
FORM OF CERTIFICATE OF EXCHANGE
CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Department
Re: 6.625% Notes due 2005
6.875% Notes due 2008
(CUSIP ______________)
Reference is hereby made to the Indenture, dated as of February 23, 1998
(the "Indenture"), among CarrAmerica Realty Corporation, as issuer (the
"Company"), CarrAmerica Realty, L.P., as Guarantor, and Bankers Trust Company,
as trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
______________, (the "Owner") owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a
Restricted Global Note for Unrestricted Definitive Notes or Beneficial Interests
in an Unrestricted Global Note
(a) Check if Exchange is from beneficial interest in a Restricted Global
Note to beneficial interest in an Unrestricted Global Note. In connection with
the Exchange of the Owner's beneficial interest in a Restricted Global Note for
a beneficial interest in an Unrestricted Global Note in an equal principal
amount, the Owner hereby certifies (i) the beneficial interest is being acquired
for the Owner's own account without transfer, (ii) such Exchange has been
effected in compliance with the transfer restrictions applicable to the Global
Notes and pursuant to and in accordance with the United States Securities Act of
1933, as amended (the "Securities Act"), (iii) the restrictions on transfer
contained in the Indenture and the Restricted Securities Legend are not required
in order to maintain compliance with the Securities Act and (iv) the beneficial
interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted Global
Note to Unrestricted Definitive Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for an Unrestricted
Definitive Note, the Owner hereby certifies (i) the Definitive Note is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to the
Restricted Global Notes and pursuant to and in accordance with the Securities
Act, (iii) the restrictions on transfer contained in the Indenture and the
Restricted Securities Legend are not required in order to maintain compliance
with the Securities Act and (iv) the Definitive Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(c) Check if Exchange is from Restricted Definitive Note to beneficial
interest in an Unrestricted Global Note. In connection with the Owner's Exchange
of a Restricted Definitive Note for a beneficial interest in an Unrestricted
Global Note, the Owner hereby certifies (i) the beneficial interest is being
acquired for the Owner's own account without transfer, (ii) such Exchange has
been effected in compliance with the transfer restrictions applicable to
Restricted Definitive Notes and pursuant to and in accordance with the
Securities Act, (iii) the restrictions on transfer contained in the Indenture
and the Restricted Securities Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) Check if Exchange is from Restricted Definitive Note to Unrestricted
Definitive Note. In connection with the Owner's Exchange of a Restricted
Definitive Note for an Unrestricted Definitive Note, the Owner hereby certifies
(i) the Unrestricted Definitive Note is being acquired for the Owner's own
account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Restricted Securities Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted
Global Notes for Restricted Definitive Notes or Beneficial Interests in
Restricted Global Notes
(a) Check if Exchange is from beneficial interest in a Restricted Global
Note to Restricted Definitive Note. In connection with the Exchange of the
Owner's beneficial interest in a Restricted Global Note for a Restricted
Definitive Note with an equal principal amount, the Owner hereby certifies that
the Restricted Definitive Note is being acquired for the Owner's own account
without transfer. Upon consummation of the proposed Exchange in accordance with
the terms of the Indenture, the Restricted Definitive Note issued will continue
to be subject to the restrictions on transfer enumerated in the Restricted
Securities Legend printed on the Restricted Definitive Note and in the Indenture
and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to beneficial
interest in a Restricted Global Note. In connection with the Exchange of the
Owner's Restricted Definitive
Note for a beneficial interest in the 144A Global Note IAI, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be subject to the restrictions on
transfer enumerated in the Restricted Securities Legend printed on the relevant
Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company.
[Insert Name of Owner]
By: _________________________
Name:
Title:
Dated: __________________, ___
EXHIBIT [D]
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Bankers Trust Company
Four Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Trust Department
Re: 6.625% Notes due 2005
6.875% Notes due 2008
Reference is hereby made to the Indenture, dated as of February 23, 1998
(the "Indenture"), between CarrAmerica Realty Corporation, as issuer (the
"Company"), CarrAmerica Realty L.P., as Guarantor, and Bankers Trust Company, as
trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) a beneficial interest in a Global Note, or
(b) a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest
therein is subject to certain restrictions and conditions set forth in the
Indenture and the undersigned agrees to be bound by, and not to resell, pledge
or otherwise transfer the Notes or any interest therein except in compliance
with, such restrictions and conditions and the United States Securities Act of
1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Notes have not been
registered under the Securities Act, and that the Notes and any interest therein
may not be offered or sold except as permitted in the following sentence. We
agree, on our own behalf and on behalf of any accounts for which we are acting
as hereinafter stated, that if we should sell the Notes or any interest therein,
we
will do so only (A) to the Company or any subsidiary thereof, (B) in accordance
with Rule 144A under the Securities Act to a "qualified institutional buyer" (as
defined therein), (C) to an institutional "accredited investor" (as defined
below) that is purchasing at least $100,000 principal amount of Notes and that,
prior to such transfer, furnishes (or has furnished on its behalf by a U.S.
broker-dealer) to you and to the Company a signed letter substantially in the
form of this letter and an Opinion of Counsel in form reasonably acceptable to
the Company to the effect that such transfer is in compliance with the
Securities Act, (D) pursuant to the provisions of Rule 144(k) under the
Securities Act or (E) pursuant to an effective registration statement under the
Securities Act, and we further agree to provide to any person purchasing the
Definitive Note or beneficial interest in a Global Note from us in a transaction
meeting the requirements of clauses (A) through (D) of this paragraph a notice
advising such purchaser that resales thereof are restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or beneficial
interest therein, we will be required to furnish to you and the Company such
certifications, legal opinions and other information as you and the Company may
reasonably require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will bear a
legend to the foregoing effect. We further understand that any subsequent
transfer by us of the Notes or beneficial interest therein acquired by us must
be effected through one of the Placement Agents.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and
any accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes or beneficial interest therein purchased by
us for our own account or for one or more accounts (each of which is an
institutional "accredited investor") as to each of which we exercise sole
investment discretion, and are so acquiring or purchasing at least $100,000
principal amount of Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
[Insert Name of Accredited Investor]
By: __________________________
Name:
Title:
Dated: _________________, ___
