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FOREST CITY ENTERPRISES, INC.
TO
THE BANK OF NEW YORK
Trustee
----------------
Indenture
Dated as of March __, 1998
----------------
$200,000,000
___% SENIOR NOTES DUE March __, 2008
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Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of March __, 1998
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310(a)(1) ............................... 609
(a)(2) ............................... 609
(a)(3) ............................... Not
Applicable
(a)(4) ............................... Not
Applicable
(b) ............................... 608
610
Section 311(a) ............................... 613
(b) ............................... 613
Section 312(a) ............................... 701
702(a)
(b) ............................... 702(b)
(c) ............................... 702(c)
Section 313(a) ............................... 703(a)
(b) ............................... 703(a)
703(b)
(c) ............................... 703(a)
(d) ............................... 703(b)
Section 314(a) ............................... 704
1020
(b) ............................... Not
Applicable
(c)(1) ............................... 102
(c)(2) ............................... 102
(c)(3) ............................... Not
Applicable
(d) ............................... Not
Applicable
(e) ............................... 102
Section 315(a) ............................... 601
(b) ............................... 602
000
-x-
0
Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Section Section
--------------- ---------
(c) ............................... 601
(d) ............................... 601
(e) ............................... 514
Section 316(a) ............................... 101
(a)(1)(A) ............................... 502
512
(a)(1)(B) ............................... 513
(a)(2) ............................... Not
Applicable
(b) ............................... 508
Section 317(a)(1) ............................... 503
(a)(2) ............................... 504
(b) ............................... 1003
Section 318(a) ............................... 107
--------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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INDENTURE, dated as of March __, 1998, between Forest City Enterprises,
Inc., a corporation duly organized and existing under the laws of the State of
Ohio (herein called the "Company"), having its principal office at 0000 Xxxxxxxx
Xxxxx, 00 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx, 00000-0000, and The Bank of New York,
a New York banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its __% Senior
Notes due March __, 2008, of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the Securities, when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company, and to make this Indenture a valid agreement
of the Company, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
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:
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(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) Any reference to includes or including shall be deemed to refer
to examples and shall be deemed to include the words "without limitation"
thereafter; and
(5) 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.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person. For the purposes of this definition, "control" when used with
respect to any 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.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or
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beneficial interest therein, the rules and procedures of the Depositary for such
Security, in each case to the extent applicable to such transaction and as in
effect from time to time.
"Asset Disposition" by any Person means any transfer, conveyance, sale,
lease or other disposition by such Person or any of its Subsidiaries (including
a consolidation or merger or other sale of any such Subsidiary with, into or to
another Person in a transaction in which such Subsidiary ceases to be a
Subsidiary, but excluding (a) a disposition by a Subsidiary of such Person to
such Person or a Wholly Owned Subsidiary of such Person or by such Person to a
Wholly Owned Subsidiary of such Person and (b) a disposition resulting from
foreclosure on the mortgage underlying a property or the transfer of the deed or
other instrument of title in lieu of foreclosure on a property provided that in
each case the Debt underlying such property has matured) of (i) shares of
Capital Stock (other than directors' qualifying shares) or other ownership
interests of a Subsidiary of such Person, (ii) substantially all of the assets
of such Person or any of its Subsidiaries representing a division or line of
business or (iii) other assets or rights of such Person or any of its
Subsidiaries outside of the ordinary course of business.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 hereof to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors of the Company or
any duly constituted committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York, New
York are authorized or obligated by law or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay rent
or other payment amounts under a
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lease of (or other Debt arrangements conveying the right to use) real or
personal property of such Person which is required to be classified and
accounted for as a capital lease or a liability on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles. The
stated maturity of such obligation shall be the date of the last payment of rent
or any other amount due under such lease prior to the first date upon which such
lease may be terminated by the lessee without payment of a penalty. The
principal amount of such obligation shall be the capitalized amount thereof that
would appear on the face of a balance sheet of such Person prepared in
accordance with generally accepted accounting principles.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participations or interests, including partnership interests,
whether general or limited, and membership interests, whether managing or
non-managing, of such Person.
"Cash Equivalents" means, at any time, (i) any Debt (other than any Debt
issued at a discount) fully guaranteed as to principal and interest by the
United States of America or any agency or instrumentality thereof (provided that
the full faith and credit of the United States is pledged in support thereof);
(ii) certificates of deposit of any financial institution that has combined
capital and surplus and undivided profits of not less than $50,000,000 (or the
equivalent thereof in another currency) and has a long-term debt rating of at
least "AA" by Standard & Poor's Ratings Group or at least "Aa3" by Xxxxx'x
Investors Service, Inc. or (iii) commercial paper issued by a corporation (other
than the Company or any Subsidiary thereof) organized under the laws of any
State of the United States and rated at least A-1 by Standard & Poor's Ratings
Group and at least P-1 by Xxxxx'x Investors Service, Inc.
"Change of Control" has the meaning specified in Section 1019.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust
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Indenture Act, then the body performing such duties at such time.
"Common Development" of a Person means multiple parcels of real or
personal property that are acquired, developed, constructed or improved by such
Person in conjunction with, and as part of a written plan or arrangement with, a
non-Affiliated Person (or with a group of Persons under the common control of a
non-Affiliated Person).
"Common Stock" of any Person means Capital Stock of such Person that does
not rank prior, as to the payment of dividends or as to other amounts upon any
voluntary or involuntary liquidation, dissolution or winding up of such Person,
to shares of Capital Stock of any other class of such Person.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board (or any
Co-Chairman of the Board), its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Adjusted Net Worth" of the Company means, at any date, the
Consolidated Net Worth of the Company plus (i) the consolidated accumulated
depreciation and amortization of the Company as of October 31, 1997 and plus
(ii) the consolidated depreciation and amortization expense of the Company for
the period from November 1, 1997 through the date of any determination,
determined in the case of (i) and (ii) on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated EBITDA" of any Person means for any period the Consolidated
Net Income of such Person for such period plus (i) Consolidated Interest Expense
of such Person for such period, plus (ii) interest expense in respect of
Non-Recourse Debt not paid in cash, but only to the extent deducted from
Consolidated Interest Expense for such period,
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plus (iii) Consolidated Income Tax Expense of such Person for such period, plus
(iv) the consolidated depreciation and amortization expense taken into account
in determining the Consolidated Net Income of such Person for such period.
"Consolidated EBITDA to Interest Ratio" of any Person means for any period
(the "Reference Period") with respect to any date of calculation (the
"Transaction Date") the ratio of (i) Consolidated EBITDA of such Person for such
period to (ii) Consolidated Interest Expense of such Person for such period. In
making the foregoing calculation, (A) pro forma effect shall be given to any
Debt, other than Non-Recourse Debt, Incurred during such Reference Period or
subsequent to the end of such Reference Period and on or prior to the
Transaction Date to the extent such Debt is outstanding at the Transaction Date,
in each case as if such Debt had been Incurred on the first day of such
Reference Period and after giving pro forma effect to the application of the
proceeds thereof as if such application had occurred on such first day; (B)
Consolidated Interest Expense attributable to interest on any Debt (whether
existing or being Incurred) other than Non-Recourse Debt, computed on a pro
forma basis and bearing a floating interest rate shall be computed as if the
rate in effect on the Transaction Date (taking into account any Permitted
Interest Rate Price Agreement applicable to such Debt if such Permitted Interest
Rate Price Agreement has a remaining term in excess of 12 months or at least
equal to the remaining term of such Debt) had been the applicable rate for the
entire period; (C) there shall be excluded from Consolidated Interest Expense
any Consolidated Interest Expense related to any amount of Debt, other than
Non-Recourse Debt, that was outstanding during such Reference Period or
thereafter but that is not outstanding or is to be repaid on the Transaction
Date; and (D) pro forma effect shall be given to Asset Dispositions and asset
acquisitions by such Person (including giving pro forma effect to the
application of proceeds of any Assets Dispositions) that occur during such
Reference Period or thereafter and prior to the Transaction Date as if they had
occurred and such proceeds had been applied on the first day of such Reference
Period.
"Consolidated Income Tax Expense" of any Person for any period means the
consolidated provision for income taxes of such Person and its Subsidiaries for
such period calculated on a consolidated basis in accordance with generally
accepted accounting principles.
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"Consolidated Interest Expense" of any Person means for any period the
consolidated interest expense included in a consolidated income statement of
such Person and its Subsidiaries (after deduction of (a) any consolidated
interest income and (b) any interest expense in respect of Non-Recourse Debt not
paid in cash, in each case to the extent included in such income statement) of
such Person and its Subsidiaries for such period, calculated on a consolidated
basis in accordance with generally accepted accounting principles, including
without limitation or duplication (or, to the extent not so included, with the
addition of), (i) the amortization of Debt discounts; (ii) any payments or fees
with respect to letters of credit, bankers' acceptances or similar facilities;
(iii) fees with respect to Interest Rate, Currency or Commodity Price
Agreements; (iv) Preferred Stock dividends of the Company and its Subsidiaries
(other than with respect to Redeemable Stock) declared and paid or payable; (v)
accrued Redeemable Stock dividends of the Company and its Subsidiaries, whether
or not declared or paid; (vi) interest on Debt guaranteed by such Person or any
of its Subsidiaries; (vii) the portion of any rental obligation or Capital Lease
Obligation allocable to interest expense but only to the extent such amount
exceeds $750,000 on a consolidated basis and (viii) the portion of the rental
obligation in respect of any Sale and Leaseback Transaction allocable to
interest expense (determined as if such obligation were a Capital Lease
Obligation) but only to the extent such amount exceeds $750,000 on a
consolidated basis.
"Consolidated Net Income" of any Person means for any period the
consolidated net income (or loss) of such Person and its Subsidiaries for such
period determined in accordance with generally accepted accounting principles;
provided that to the extent taken into account in determining such consolidated
net income (or loss) there shall be excluded therefrom (a) the net income (or
loss) of any Person acquired by such Person or a Subsidiary of such Person in a
pooling-of-interests transaction for any period prior to the date of such
acquisition, (b) the net income (but not the net loss) of any Subsidiary of such
Person which is subject to restrictions which prevent the payment of dividends
and the making of distributions (by loans, advances, intercompany transfers or
otherwise) to such Person to the extent of such restrictions, (c) the net income
(or loss) of any Person that is not a Subsidiary of such Person except to the
extent of the amount of dividends
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or other distributions actually paid to such Person by such other Person during
such period, (d) gains or losses on disposition of properties by such Person or
its Subsidiaries (as set forth on an income statement of such Person prepared in
accordance with generally accepted accounting principles), (e) the cumulative
effect of changes in accounting principles in the year of adoption of such
changes, (f) all extraordinary gains and extraordinary losses of such Person and
its Subsidiaries,(g) all gains or losses of such Person and its Subsidiaries
resulting from the discontinued operations, or the disposal, of a segment of a
business of such Person determined in each case in accordance with Accounting
Principles Board Opinion No. 30; provided, however, that such gains and losses
shall be excluded only to the extent such items are not included within
extraordinary gains or extraordinary losses of such Person, and provided,
further, however, that in no event shall such amounts be excluded beyond the
fiscal year in which such gains or losses are first reported, (h) the provision
for decline in real estate (as set forth on an income statement of such Person
prepared in accordance with generally accepted accounting principles) and (i)
the tax effect of any of the items described in clauses (a) through (h).
"Consolidated Net Worth" of any Person means, at any date, the
consolidated stockholders' equity of such Person, determined on a consolidated
basis in accordance with generally accepted accounting principles, less amounts
attributable to Redeemable Stock of such Person; provided that, with respect to
the Company, adjustments following the date of this Indenture to the accounting
books and records of the Company in accordance with Accounting Principles Board
Opinions Nos. 16 and 17 (or successor opinions thereto) or otherwise resulting
from the acquisition of control of the Company by another Person shall not be
given effect to.
"consolidation" means, with respect to any Person, the consolidation of
the accounts of such Person with the accounts of each Person in which such
Person, directly or indirectly, owns an interest, if and to the extent the
accounts of each such Person would be consolidated with the accounts of such
Person in accordance with generally accepted accounting principles. The term
"consolidated" has a correlative meaning.
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"Corporate Trust Office" means the principal office of the Trustee
currently at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York 10286, at
which at any particular time its corporate trust business shall be administered.
"corporation" means (except where the context dictates otherwise) a
corporation, association, company, limited liability company, joint-stock
company, partnership or business trust.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations Incurred in connection with the acquisition
of property, assets or businesses, (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person, (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(including securities repurchase agreements but excluding trade accounts payable
or accrued liabilities arising in the ordinary course of business which are not
overdue or which are being contested in good faith), (v) every Capital Lease
Obligation of such Person, (vi) all Receivables Sales of such Person, together
with any obligation of such Person to pay any discount, interest, fees,
indemnities, penalties, recourse, expenses or other amounts in connection
therewith, (vii) all Redeemable Stock issued by such Person, (viii) every
obligation to pay rent or other payment amounts of such Person with respect to
any Sale and Leaseback Transaction to which such Person is a party, (ix) every
obligation under Interest Rate, Currency or Commodity Price Agreements of such
Person and (x) every obligation of the type referred to in clauses (i) through
(ix) of another Person and all dividends of another Person the payment of which,
in either case, such Person has guaranteed or for which such Person is
responsible or liable, directly or indirectly, as obligor, guarantor or
otherwise. The "amount" or "principal amount" of Debt at any time of
determination as used herein represented by (a) any contingent Debt, shall be
the maximum liability upon the occurrence of the contingency giving rise to the
obligation (unless the underlying contingency has not
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occurred and the occurrence of the underlying contingency is entirely within the
control of the Company), (b) any Debt issued at a price that is less than the
principal amount at maturity thereof, shall be the amount of the liability in
respect thereof determined in accordance with generally accepted accounting
principles, (c) any Receivables Sale, shall be the amount of the unrecovered
capital or principal investment of the purchaser (other than the Company or a
Wholly Owned Subsidiary of the Company) thereof as of such time of
determination, excluding amounts representative of yield or interest earned on
such investment and (d) any Redeemable Stock, shall be the maximum fixed
redemption or repurchase price in respect thereof.
"Depositary" means, with respect to any Global Security, a clearing agency
registered under the Exchange Act that is designated to act as Depositary as
contemplated by Section 311.
"Development Debt" of any Person means Debt of such Person or any
mortgages, indentures, instruments or agreements under which there may be issued
or existing or by which there may be secured or evidenced any Debt of such
Person Incurred for the purpose of financing all or any part of the cost of
acquiring, developing, constructing or improving, real or personal property that
is owned or that immediately after the Incurrence of such Debt, will be owned,
by such Person; provided that (a) the principal amount of any such Debt does not
exceed 100% of the cost of such acquisition, development, construction or
improvement plus expenses incurred in connection with the Incurrence of such
Debt, (b) such cost will be included in "Total Real Estate" on the consolidated
balance sheet of such Person, and (c) if such Debt is secured by a Lien, then
(i) such Lien attached to such real or personal property prior to, at the time
of, or within 180 days after the acquisition of or the completion of developing,
constructing or improving of such property, and (ii) such Lien does not extend
to or cover any property other than the specific item of such property (or
portion thereof), acquired, developed, constructed, or constituting the
improvements made with the proceeds of such Debt, except in the case of Common
Development, in which case such Lien may extend to any other property included
within the Common Development.
"DTC" means The Depository Trust Company, a New York corporation.
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"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934 as it may be
amended from time to time and any successor act thereto.
"Expiration Date" has the meaning specified in the definition of Offer to
Purchase.
"fair market value" means the price that would be paid in an arm's-length
transaction between an informed and willing seller under no compulsion to sell
and an informed and willing buyer under no compulsion to buy.
"FCRPC Credit Agreement" means the Credit Agreement, dated as of December
10, 1997 and as amended through March __, 1998, among Forest City Rental
Properties Corporation, an Ohio corporation, as Borrower, various lending
institutions named therein, Keybank National Association, individually and as
administrative agent, and National City Bank, individually and as syndication
agent, and any Debt the proceeds of which are used to renew, extend, refinance
or replace such Credit Agreement and any Debt Incurred in connection with any
subsequent or successive renewal, extension or refinancing of such Debt.
"FCRPC Guaranty" means the Guaranty, dated as of December 10, 1997 and as
amended through March __, 1998, by the Company of the obligations under FCRPC
Credit Agreement and any guarantee by the Company (or any successor to the
Company) of any renewal, extension, refinancing or replacement of such FCRPC
Credit Agreement.
"Global Security" means a Security that is registered in the Security
Register in the name of the Depositary or a nominee thereof and that bears the
legend specified by Section 205(a).
"guarantee" by any Person means any obligation, contingent or otherwise,
of such Person guaranteeing, or having the economic effect of guaranteeing, any
Debt of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, and including, without limitation, any obligation of such Person,
(i) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Debt or to purchase (or to advance or supply funds for the
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purchase of) any security for the payment of such Debt, (ii) to purchase
property, securities or services for the purpose of assuring the holder of such
Debt of the payment of such Debt, or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt (and "guaranteed",
"guaranteeing" and "guarantor" shall have meanings correlative to the
foregoing); provided, however, that the guaranty by any Person shall not include
endorsements by such Person for collection or deposit, in either case, in the
ordinary course of business.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Incur" means, with respect to any Debt or other obligation of any Person,
to create, issue, incur (by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Debt or other obligation
(including by acquisition of Subsidiaries) or the recording, as required
pursuant to generally accepted accounting principles or otherwise, of any such
Debt or other obligation on the balance sheet of such Person (and "Incurrence",
"Incurred", "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing); provided, however, that a change in generally accepted accounting
principles that results in an obligation of such Person that exists at such time
becoming Debt shall not be deemed an Incurrence of such Debt.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Rate, Currency or Commodity Price Agreement" of any Person means
any forward contract, futures contract, swap, option or other financial
agreement or arrangement (including, without limitation, caps, floors, collars
and similar agreements) relating to, or the value of which is dependent upon,
interest rates, currency exchange rates or commodity prices or indices
(excluding contracts
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for the purchase or sale of goods in the ordinary course of business).
"Investment" by any Person in any other Person means (i) any direct or
indirect loan, advance or other extension of credit or capital contribution to
or for the account of such other Person (by means of any transfer of cash or
other property to any Person or any payment for property or services for the
account or use of any Person, or otherwise), (ii) any direct or indirect
purchase or other acquisition, including by way of merger or consolidation, of
any Capital Stock, bond, note, debenture, or other debt or equity security or
evidence of Debt, or any other ownership interest, issued by such other Person,
whether or not such acquisition is from such or any other Person, (iii) any
direct or indirect payment by such Person on a guarantee of any obligation of or
for the account of such other Person or any direct or indirect issuance by such
Person of such a guarantee or (iv) any other investment of cash or other
property by such Person in or for the account of such other Person, but shall
not include trade accounts receivable in the ordinary course of business on
credit terms made generally available to the customers of such Person.
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, Receivables Sale, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing or any
agreement to give any security interest).
"Material Subsidiary" means any Subsidiary of the Company deemed a
"significant subsidiary" for purposes of Rule 1-02(w) of Regulation S-X under
the Securities Act of 1933, as amended.
"Maturity ", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration
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of acceleration, call for redemption, obligation to repurchase or otherwise.
"Minimum Adjusted Net Worth" of the Company means, as of any date, the sum
of (i) $675 million, (ii) the amount of Recourse Debt Incurred after the date of
original issuance of the Securities that is outstanding on any date of
determination but only to the extent the amount of such Debt then outstanding
exceeds $425 million, and (iii) 25% of the Company's consolidated net income (or
zero in the case of a consolidated net loss) determined in accordance with
generally accepted accounting principles for the period from November 1, 1997
through the date of any determination, determined on a consolidated basis in
accordance with generally accepted accounting principles.
"Net Available Proceeds" from any Asset Disposition by any Person means
cash or readily marketable Cash Equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of Debt or other obligations relating to such properties or assets or
received in any other noncash form) therefrom by such Person, net of (i) all
legal, title and recording tax expenses, commissions and other fees and expenses
Incurred and all federal, state, provincial, foreign and local taxes required to
be accrued as a liability as a consequence of such Asset Disposition, (ii) all
payments made by such Person or its Subsidiaries on any Debt which is secured by
such assets in accordance with the terms of any Lien upon or with respect to
such assets or which must by the terms of such Lien, or in order to obtain a
necessary consent to such Asset Disposition or by applicable law be repaid out
of the proceeds from such Asset Disposition, (iii) all distributions and other
payments made to minority interest holders in Subsidiaries of such Person or
joint ventures as a result of such Asset Disposition and (iv) appropriate
amounts to be provided by such Person or any Subsidiary thereof, as the case may
be, as a reserve in accordance with generally accepted accounting principles
against any liabilities associated with such assets and retained by such Person
or any Subsidiary thereof, as the case may be, after such Asset Disposition,
including, without limitation, liabilities under any indemnification obligations
and severance and other employee termination costs associated with such Asset
Disposition, in each case as determined by the Board of Directors, in its
reasonable
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good faith judgment evidenced by a resolution of the Board of Directors filed
with the Trustee; provided, however, that any reduction in such reserve within
twelve months following the consummation of such Asset Disposition will be
treated for all purposes of the Indenture and the Securities as a new Asset
Disposition at the time of such reduction with Net Available Proceeds equal to
the amount of such reduction.
"Non-Recourse" as applied to any Debt means Debt of a Person (or any
portion thereof) to the extent that, under the terms thereof, no personal
recourse may be had against such Person or any Affiliate of such Person for the
payment of all or a portion of the principal of or interest or premium on such
Debt, and enforcement of obligations on such Debt (except with respect to fraud,
willful misconduct, intentional misrepresentation, misapplication of funds,
waste and undertakings with respect to environmental matters) is limited only to
recourse against interests in specified assets and properties owned by such
Person (the "Subject Assets"), accounts and proceeds arising therefrom, and
rights under purchase agreements or other agreements relating to such Subject
Assets.
"Offer" has the meaning specified in the definition of Offer to Purchase.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Security Register on the date of the Offer offering to purchase
up to the principal amount of Securities specified in such Offer at the purchase
price specified in such Offer (as determined pursuant to this Indenture). Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days or more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within three Business Days after the Expiration Date.
The Company shall notify the Trustee at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company. The Offer shall contain information concerning
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the business of the Company and its Subsidiaries which the Company in good faith
believes will enable such Holders to make an informed decision with respect to
the Offer to Purchase (which at a minimum will include (i) the most recent
annual and quarterly financial statements and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" contained in the
documents required to be filed with the Trustee pursuant to Section 1017 (which
requirements may be satisfied by delivery of such documents together with the
Offer), (ii) a description of material developments in the Company's business
subsequent to the date of the latest of such financial statements referred to in
Clause (i) (including a description of the events requiring the Company to make
the Offer to Purchase), (iii) if applicable, appropriate pro forma financial
information concerning the Offer to Purchase and the events requiring the
Company to make the Offer to Purchase and (iv) any other information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable such Holders to tender Securities pursuant to
the Offer to Purchase. The Offer shall also state:
(1) the Section of this Indenture pursuant to which the Offer to
Purchase is being made (including that a Change of Control or Asset
Disposition, as applicable, has occurred);
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the Outstanding Securities
offered to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section hereof requiring the Offer to Purchase)
(the "Purchase Amount");
(4) the purchase price to be paid by the Company for each $1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the Holder may tender all or any portion of the Securities
registered in the name of such Holder and that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal
amount;
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(6) the place or places where Securities are to be surrendered for
tender pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due
and payable upon each Security being accepted for payment pursuant to the
Offer to Purchase and that interest thereon shall cease to accrue on and
after the Purchase Date;
(9) that each Holder electing to tender a Security pursuant to the
Offer to Purchase will be required to surrender such Security at the place
or places specified in the Offer prior to the close of business on the
Expiration Date (such Security being, if the Company or the Trustee so
requires, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing);
(10) that Holders will be entitled to withdraw all or any portion
of Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the Expiration Date, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Security the Holder tendered, the certificate number of the
Security the Holder tendered and a statement that such Holder is
withdrawing all or a portion of his tender;
(11) that (a) if Securities in an aggregate principal amount less
than or equal to the Purchase Amount are duly tendered and not withdrawn
pursuant to the Offer to Purchase, the Company shall purchase all such
Securities and (b) if Securities in an aggregate principal amount in excess
of the Purchase Amount are tendered and not withdrawn pursuant to the Offer
to Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Securities in
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denominations of $1,000 or integral multiples thereof shall be purchased);
and
(12) that in the case of any Holder whose Security is purchased
only in part, the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
Any Offer to Purchase shall be governed by and effected in accordance with the
Offer for such Offer to Purchase.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board (or any Co-Chairman of the Board), the President or a Vice President,
and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee. One of the officers
signing an Officers' Certificate given pursuant to Section 1020 shall be the
principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption 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 Securities; provided that, if such Securities are
to be redeemed, notice of such redemption
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has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities as to which defeasance has been effected pursuant
to Section 1202 hereof; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities 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 Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"pari passu", when used with respect to the ranking of any Debt of any
Person in relation to other Debt of such Person, means that each such Debt (a)
either (i) is not subordinated in right of payment to any other Debt of such
Person or (ii) is subordinate in right of payment to the same Debt of such
Person as is the other and is so subordinate to the same extent and (b) is not
subordinate in right of payment to the other or to any Debt of such Person as to
which the other is not so subordinate.
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"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Business" means (i) developing, acquiring, owning and operating
shopping centers, office buildings and mixed-use projects, including
entertainment complexes and hotels, (ii) developing, acquiring, owning and
operating multi-family properties, (iii) acquiring land and owning and
developing land into master planned communities and other residential
developments for resale and (iv) the lumber wholesaling business.
"Permitted Holder" means (i) any of Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx Xxxxxxx or any
spouse of any of the foregoing, and any trusts for the benefit of any of the
foregoing, (ii) RMS, Limited Partnership and any general partner or limited
partner thereof and any Person (other than a creditor) that upon the dissolution
or winding up of RMS, Limited Partnership receives a distribution of Capital
Stock of the Company, (iii) any group (as defined in Section 13(d) of the
Exchange Act or any successor provision thereto) of two or more Persons or
entities that are specified in the immediately preceding clauses (i) and (ii),
and (iv) any successive recombination of the Persons or groups that are
specified in the immediately preceding clauses (i), (ii) and (iii).
"Permitted Interest Rate, Currency or Commodity Price Agreement" of any
Person means any Interest Rate, Currency or Commodity Price Agreement entered
into with one or more financial institutions in the ordinary course of business
that is designed (a) in the case of an interest rate or currency exchange
agreement, to protect such Person against fluctuations in interest rates or
currency exchange rates with respect to Debt Incurred and which shall have a
notional amount no greater than the payments due with respect to the Debt being
hedged thereby and, in the case of an agreement protecting such Person from
fluctuations in interest rates, the profits and losses from such agreement are
included in interest expense under generally accepted accounting principles, or,
(b) in the case of currency or commodity protection agreements, to protect such
Person against currency exchange rate or commodity price fluctuations in the
ordinary course of business relating to then
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existing financial obligations or then existing or sold production and not for
purposes of speculation.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or other entity or government or any agency
or political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Preferred Stock" means Capital Stock of such Person of any class or
classes (however designated) that ranks prior, as to the payment of dividends or
as to amounts upon any voluntary or involuntary liquidation, dissolution or
winding up of such Person, to shares of Capital Stock of any other class of such
Person.
"Public Equity Offering" means an underwritten primary public offering of
Common Stock of the Company pursuant to an effective registration statement
under the Securities Act of 1933, as amended.
"Purchase Amount" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Date" has the meaning specified in the definition of Offer to
Purchase.
"Purchase Money Debt" of any Person means Debt (other than Development
Debt) of such Person Incurred for the purpose of financing all or any part of
the purchase price or cost of construction or improvement of property or other
assets of such Person (other than property described in the definition of
Development Debt) acquired after the date of original issuance of the
Securities; provided that (i) the principal amount of any such Debt does not
exceed 100% of such purchase price or cost and (ii) if such Debt is secured by a
Lien, then (a) such Lien attached to such property or assets prior to, at the
time of, or within 180 days after the acquisition, construction or improvement
of such property or
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assets and (b) such Lien does not extend to or cover any property or assets
other than the specific item of such property or assets (or portion thereof)
acquired, constructed or improved with the proceeds of such Debt.
"Purchase Price" has the meaning specified in the definition of Offer to
Purchase.
"Receivables" means receivables, chattel paper, instruments, documents or
intangibles evidencing or relating to the right to payment of money.
"Receivables Sale" of any Person means any sale of Receivables of such
Person (pursuant to a purchase facility or otherwise), other than in connection
with a disposition of the business operations of such Person relating thereto or
a disposition of defaulted Receivables for purposes of collection and not as a
financing arrangement.
"Recourse Debt" of any Person means Debt of such Person that is not
Non-Recourse Debt.
"Redeemable Stock" of any Person means any Capital Stock of such Person
that by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or otherwise (including upon the occurrence of
an event) matures or is required to be redeemed (pursuant to any sinking fund
obligation or otherwise) or is convertible into or exchangeable for Debt or is
redeemable at the option of the holder thereof, in whole or in part, at any time
prior to the final Stated Maturity of the Securities.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March __ or September __ (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Related Person" of any Person means, without limitation, any other Person
directly or indirectly owning
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(a) 5% or more of the outstanding Common Stock of such Person (or, in the case
of a Person that is not a corporation, 5% or more of the equity interest in such
Person) or (b) 5% or more of the combined voting power of the Voting Stock of
such Person.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, the controller or any assistant controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Payment" has the meaning specified in Section 1010.
"Sale and Leaseback Transaction" of any Person means an arrangement with
any lender or investor or to which such lender or investor is a party providing
for the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 270 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Securities" means securities designated in the first paragraph of the
RECITALS OF THE COMPANY.
"Securities Custodian" means the Trustee as custodian with respect to any
Global Security.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest (as
described in Section 307) means a date fixed by the Trustee pursuant to Section
307.
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"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subordinated Debt" means Debt of the Company as to which the payment of
principal of (and premium, if any) and interest and other payment obligations in
respect of such Debt shall be subordinate to the prior payment in full of the
Securities to at least the following extent: (i) no payments of principal of (or
premium, if any) or interest on or otherwise due in respect of such Debt may be
permitted for so long as any default in the payment of principal (or premium, if
any) or interest on the Securities exists; (ii) in the event that any other
default that with the passing of time or the giving of notice, or both, would
constitute an event of default exists with respect to the Securities, upon
notice by 25% or more in principal amount of the Securities to the Trustee, the
Trustee shall have the right to give notice to the Company and the holders of
such Debt (or trustees or agents therefor) of a payment blockage, and thereafter
no payments of principal of (or premium, if any) or interest on or otherwise due
in respect of such Debt may be made for a period of 179 days from the date of
such notice; and (iii) such Debt may not (x) provide for payments of principal
of such Debt at the stated maturity thereof or by way of a sinking fund
applicable thereto or by way of any mandatory redemption, defeasance, retirement
or repurchase thereof by the Company (including any redemption, retirement or
repurchase which is contingent upon events or circumstances, but excluding any
retirement required by virtue of acceleration of such Debt upon an event of
default thereunder), in each case prior to the final Stated Maturity of the
Securities or (y) permit redemption or other retirement (including pursuant to
an offer to purchase made by the Company) of such other Debt at the option of
the holder thereof prior to the final Stated Maturity of the Securities, other
than a redemption or other retirement at the option of the holder of such Debt
(including pursuant to an offer to purchase made by the Company) which is
conditioned upon the change of control of the Company pursuant to provisions
substantially similar to those contained in Section 1019 hereof (and which shall
provide that such Debt will not be repurchased pursuant to such provisions prior
to the Company's repurchase of the Securities required to be repurchased by the
Company pursuant Section 1019 hereof).
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"Subsidiary" of any Person means (i) a corporation more than 50% of the
combined voting power of the outstanding Voting Stock of which is owned,
directly or indirectly, by such Person or by one or more other Subsidiaries of
such Person or by such Person and one or more Subsidiaries thereof, (ii) a
partnership of which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, is the general partner and has the power to direct the policies,
management and affairs of the partnership, (iii) a limited liability company of
which such Person or one or more Subsidiaries of such Person or such Person and
one or more Subsidiaries of such Person, directly or indirectly, is the managing
member and has the power to direct the policies, management and affairs of the
company, or (iv) any other Person (other than a corporation, partnership or
limited liability company) in which such Person, or one or more other
Subsidiaries of such Person or such Person and one or more other Subsidiaries
thereof, directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905; provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) 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, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933,
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as amended) as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government
Obligation held by such custodian for the account of the holder of such
depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from any amount received by the custodian in respect of
the U.S. Government Obligation or the specific payment of principal of or
interest on the U.S. Government Obligation evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
"Weighted Average Life" means, as of the date of determination, with
respect to any Debt or Preferred Stock, the quotient obtained by dividing (i)
the sum of the products of (a) the number of years from the date of
determination to the dates of each successive scheduled principal payment of
such Debt or mandatory redemption of such Preferred Stock, respectively, and (b)
the amount of such principal payments or redemption payments, by (ii) the sum of
all such principal payments or redemption payments.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
all of the outstanding Capital Stock or other ownership interests of which
(other than directors' qualifying shares) shall at the time be owned by such
Person or by one or more Wholly Owned Subsidiaries of such Person or by such
Person and one or more Wholly Owned Subsidiaries of such Person.
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 such
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certificates and opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition 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 covenant or condition
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 with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Date.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments 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 shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(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
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of a notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
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 writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities on such record date,
and no other Holders, shall be entitled to take the relevant action, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date
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previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities entitled to join in the giving or making
of (i) any Notice of Default, (ii) any declaration of acceleration referred to
in Xxxxxxx 000, (xxx) any request to institute proceedings referred to in
Section 507(2) or (iv) any direction referred to in Section 512. If any record
date is set pursuant to this paragraph, the Holders of Outstanding Securities on
such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities on such record date.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Trustee, at the Company's expense, shall
cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities of the relevant series in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
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later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 106, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto which
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
(f) Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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, Attention: Corporate
Trust Trustee Administration, 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 instrument or at any other address previously
furnished in writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders 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. 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.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be part of and govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. 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.
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SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders of Securities, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Purchase Date
or Stated Maturity of any Security shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date, Redemption Date or Purchase
Date, or at the Stated Maturity, provided that to the extent such payment is
made on such next succeeding Business Day, no interest shall accrue for the
period from and after such Interest Payment Date, Redemption Date or Purchase
Date or Stated Maturity, as the case may be.
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ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or securities
depositary or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
FOREST CITY ENTERPRISES, INC.
____% SENIOR NOTES due March __, 2008
No. __________ $________
CUSIP No. _____
Forest City Enterprises, Inc., a corporation duly organized and existing
under the laws of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________, or registered assigns,
the principal sum of ___________________ Dollars on March __, 2008, and to pay
interest thereon from March __ or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on March __ and
September __ in each year, commencing September __, 1998, at the rate of ___%
per annum, until the principal hereof is paid or made available for payment, and
at the rate of __% per annum on any overdue principal and premium and on any
overdue installment of interest until paid. The interest so payable, and
punctually paid or duly provided for, on any Interest
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Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the March __ or September __ (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 will 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 Security (or one or more Predecessor Securities) 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
Securities not less than 10 days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
Interest on this Security shall be computed on the basis of a 360-day year
of twelve 30-day months.
Payment of the principal of (and premium, if any) and interest on this
Security 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, New York, 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 payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
FOREST CITY ENTERPRISES, INC.
[Seal]
By
-------------------------------
Title:
Attest:
------------------------------
Title:
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its ___% Senior Notes due March __, 2008 (herein called
the "Securities"), limited in aggregate principal amount to $200,000,000, issued
and to be issued under an Indenture, dated as of March __, 1998 (herein called
the "Indenture"), between the Company and The Bank of New York, as Trustee
(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 Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 nor more
than 60 days' notice by mail, at any time on or after March __, 2003, as a whole
or in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed during the
12-month period beginning March __ of each of the years indicated,
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Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
2003
2004
2005
2006 and
thereafter 100%
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
The Securities will also be subject to redemption, at the option of the Company,
prior to March __, 2001, in the event that on or before March __, 2001 the
Company receives net proceeds from the sale of its Common Stock in one or more
Public Equity Offerings, in which case the Company may, at its election, use all
or a portion of any such net proceeds to redeem up to an aggregate amount equal
to 33% of the original principal amount of the Securities; provided, however,
that Securities in an aggregate principal amount equal to at least $130 million
remain Outstanding after each such redemption. Any such redemption must occur on
a Redemption Date within 75 days of any such sale and upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Securities to be redeemed at
such Holder's address appearing in the Security Register, in amounts of $1,000
or an integral multiple of $1,000, at a redemption price of ___% of the
principal amount of the Securities plus accrued and unpaid interest, if any, to
the Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture. "Public Equity Offering" is defined in the Indenture as an
underwritten primary public offering of Common Stock of the Company pursuant to
an effective registration statement under the Securities Act of 1933, as
amended.
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The Indenture provides that, subject to certain conditions, if (i) certain
Excess Proceeds are available to the Company as a result of an Asset
Disposition, or (ii) a Change of Control occurs, the Company shall be required
to make an Offer to Purchase for all or a specified portion of the Securities.
In the event of redemption or purchase pursuant to an Offer to Purchase of
this Security in part only, a new Security or Securities for the unredeemed or
unpurchased portion hereof will be issued in the name of the Holder hereof upon
the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (i) the
entire indebtedness of this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth therein.
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 Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, 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 Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security 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
Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have
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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 the Trustee written notice of a
continuing Event of Default with respect to the Securities, the Holders of not
less than 25% in principal amount of the Securities 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 Securities 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 Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company maintained for such purpose in the Borough of Manhattan,
The City of New York, New York, 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 Securities, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of
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Securities 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 Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased in its entirety by the
Company pursuant to the Indenture, check the box:
[ ]
If you want to elect to have only a part of this Security purchased by the
Company pursuant to the Indenture, state the amount: $
Dated: Your Signature:
-------------------------------------
(Sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
---------------------------------------------------------
(Signature must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Security
Registrar, which requirements include membership or
participation in a "signature guarantee program" as may be
determined by the Security Registrar, all in accordance with
the Securities Exchange Act of 1934, as amended.)
SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
Dated: as Trustee
By
-------------------------
Authorized Signatory
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SECTION 205. Form of Legend for Global Securities.
(a) Every Global Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may be
registered, in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture.
(b) If the Security is a Global Security and The Depository Trust
Company is to be the Depositary therefor, then insert the following legend in
substantially the following form: UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, 00 XXXXX XXXXXX, XXX
XXXX, XXX XXXX 00000, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY 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.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $200,000,000.
The Securities shall be known and designated as the "___% Senior Notes due
March __, 2008" of the Company. Their Stated Maturity shall be March __, 2008
and they shall bear interest at the rate of ____% per annum, from March __
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or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semi-annually on March __ and
September __, commencing September __, 1998, until the principal thereof is paid
or made available for payment and at the rate of ___% per annum on any overdue
principal, premium, if any, or installment of interest until paid.
The Securities shall be senior unsecured obligations of the Company and
shall rank pari passu in right of payment with all existing or future senior
unsecured indebtedness of the Company.
The operations of the Company are conducted principally through its
Subsidiaries. The right of the Company to participate as an equity holder in any
distribution of assets of any of its Subsidiaries upon dissolution, liquidation,
or winding up (and thus the ability of the Holders of the Securities to benefit,
as creditors of the Company, from such distribution) is subject to the prior
claims of creditors of any such Subsidiary, including, in the case of Forest
City Rental Properties Corporation, the claims for the payment of the Debt under
the FCRPC Credit Agreement. Although the Securities rank pari passu in right of
payment with the FCRPC Guaranty, as described above, the Securities do not rank
pari passu in right of payment with the Debt under the FCRPC Credit Agreement.
While it is the intent of the parties to this Indenture that this paragraph
shall not create any contractual rights of subordination, the Securities, as
described above, will be structurally (but not contractually) subordinated to
the Debt under the FCRPC Credit Agreement.
The principal of (and premium, if any) and interest on the Securities shall
be payable at the office or agency of the Company in the Borough of Manhattan,
The City of New York, New York, maintained for such purpose and at any other
office or agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
The Securities shall be subject to repurchase by the Company pursuant to an
Offer to Purchase as provided in Sections 1018 and 1019.
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The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to defeasance at the option of the Company
as provided in Article Twelve.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board (or any Co-Chairman), its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
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executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 1002 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
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Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 1002 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) 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 Securities, 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 Securities, other than
exchanges pursuant to Section 304, 906 or 1108 or in accordance with any Offer
to Purchase pursuant to Section 1018 or 1019 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange any Security during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of business
on the day of such mailing,
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or (ii) to register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which 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 Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which 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 Holder 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 Securities (or their respective
Predecessor Securities) 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
Security and the date of the proposed payment, 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
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
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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 at his address as it appears in
the Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) 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 in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities 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, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
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SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security 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 Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for purchase under any Offer to Purchase pursuant to
Section 1018 or 1019 shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly canceled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order, provided,
however, that the Trustee may, but shall not be required to, destroy such
canceled Securities.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. Global Securities.
(a) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes
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of this Indenture. The Company initially appoints The Depository Trust Company
("DTC") to act as Depositary with respect to the Global Security(ies). The
Company initially appoints the Trustee to act as Securities Custodian with
respect to the Global Security(ies).
(b) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the name
of any Person other than the Depositary for such Global Security or a nominee
thereof unless (i) such Depositary (A) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security or (B)
has ceased to be a clearing agency registered as such under the Exchange Act,
and in each such case, a successor Depositary is not appointed by the Company
within 90 days or (ii) an Event of Default shall have occurred or an event that
with notice or lapse of time (or both) would constitute an Event of Default
shall have occurred or be continuing with respect to such Global Security or
(iii) the Company by Company Order so requests.
(c) Upon the occurrence of any of the events specified in Section
311(b), the Company shall execute, and the Trustee shall authenticate and
deliver, Securities in definitive form registered in such names and in such
amounts as the Depositary or its authorized representative may specify.
(d) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article Three, Section 906, Section 1108 or
Section 1018 or Section 1019 or otherwise, shall be authenticated and delivered
in the form of, and shall be, a Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such Global
Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under
this Indenture and the Securities.
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SECTION 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use) and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) Securities
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 such Securities not theretofore delivered to the Trustee
for cancellation
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(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 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, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the
purpose an amount sufficient (without reinvestment) to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities 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 have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture pursuant to
this Article Four, the obligations of the Company to the Trustee under Section
607, the obligations of the Company to any Authenticating Agent under Section
614 and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this
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Section, the obligations of the Trustee under Section 402, the last paragraph of
Section 1003 and the provisions of Section 303, 305, 306 and 311 shall survive.
SECTION 402. Application of Trust Money.
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 Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity; or
(2) default in the payment of any interest upon any Security when
it becomes due and payable, and continuance of such default for a period of
30 days; or
(3) default in the performance, or breach, of Section 801, 1018 or
1019; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture (other than a
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covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with), and continuance of such
default or breach for a period of 30 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 Securities a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) a default or defaults under any bond(s), debenture(s), note(s)
or other evidence(s) of Debt (other than Non-Recourse Debt) by the Company
or any Subsidiary of the Company or under any mortgage(s), indenture(s) or
instrument(s) under which there may be issued or by which there may be
secured or evidenced any Debt (other than Non-Recourse Debt) of the Company
or any such Subsidiary with a principal amount then outstanding,
individually or in the aggregate, in excess of $10 million, whether such
Debt now exists or shall hereafter be created, which default or defaults
shall constitute a failure to pay any portion of the principal of such Debt
when due and payable after the expiration of any applicable grace period
with respect thereto and shall have resulted in such Debt becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable or constitutes the failure to pay any portion of the
principal of such Debt when due and payable; or
(6) a default or defaults under any bond(s), debenture(s), note(s)
or other evidence(s) of Non-Recourse Debt by the Company or any Subsidiary
of the Company or under any mortgage(s), indenture(s) or instrument(s)
under which there may be issued or by which there may be secured or
evidenced any Non-Recourse Debt of the Company or any
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such Subsidiary with a principal amount then outstanding, individually or
in the aggregate, in excess of 20% of the aggregate principal or similar
amount of all the outstanding Non-Recourse Debt of the Company and its
Subsidiaries, whether such Non-Recourse Debt now exists or shall hereafter
be created, which default or defaults shall constitute a failure to pay any
portion of the principal of such Non-Recourse Debt when due and payable
after the expiration of any applicable grace period with respect thereto or
shall have resulted in such Non-Recourse Debt becoming or being declared
due and payable prior to the date on which it would otherwise have become
due and payable; or
(7) a final judgment or final judgments (not subject to appeal) for
the payment of money are entered against the Company or any Subsidiary of
the Company in an aggregate amount in excess of $10 million by a court or
courts of competent jurisdiction, which judgment or judgments remain
undischarged or unbonded for a period (during which execution shall not be
effectively stayed) of 45 days after the right to appeal all such judgments
has expired; or
(8) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or any Material
Subsidiary of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or any such
Material Subsidiary a bankrupt or insolvent, or approving as properly filed
a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any such Material Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or any, such
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Material Subsidiary or of any substantial part of the property of the
Company or any such Material Subsidiary, or ordering the winding up or
liquidation of the affairs of the Company or any such Material Subsidiary,
and the continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60 consecutive
days; or
(9) the commencement by the Company or any Material Subsidiary of
the Company of a voluntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or of
any other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by the Company or any such Material Subsidiary to the entry of
a decree or order for relief in respect of the Company or such Material
Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar
law or to the commencement of any bankruptcy or insolvency case or
proceeding against the Company or any Material Subsidiary of the Company,
or the filing by the Company or any such Material Subsidiary of a petition
or answer or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by the Company or any such Material
Subsidiary to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Material Subsidiary
of the Company or of any substantial part of the property of the Company or
any such Material Subsidiary, or the making by the Company or any Material
Subsidiary of the Company of an assignment for the benefit of creditors, or
the admission by the Company or any such Material Subsidiary in writing of
its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company or any such Material Subsidiary in
furtherance of any such action.
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SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
501 (8) or (9) occurs) and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal and
any accrued interest shall become immediately due and payable. If an Event of
Default specified in Section 501 (8) or (9) occurs, the principal of and any
accrued interest on the Securities then Outstanding shall ipso facto become
immediately due and payable without any declaration or other Act on the part of
the Trustee or any Holder. In the case of any Event of Default occurring by
reason of any willful action (or inaction) taken (or not taken) by or on behalf
of the Company with the intention of avoiding payment of the premium that the
Company would have had to pay if the Company then had elected to redeem the
Securities pursuant to the provisions described in Section 1101(a), an
equivalent premium will also become and be immediately due and payable upon the
acceleration of the Securities.
At any time after such a declaration of acceleration 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 Securities, 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 interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration (including
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any Securities required to have been purchased on the Purchase Date
pursuant to an Offer to Purchase made by the Company) and interest
thereon at the rate of % per annum,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate of % per annum, 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, other than the non-payment of the
principal of Securities 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 interest on any Security
when such interest 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,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and interest on any
overdue principal (and premium, if any) and on any overdue
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interest, at ___% per annum, 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 an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders 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 any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
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SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 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,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security 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
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(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities 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 reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities;
it being understood and intended that no one or more 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date or in the case
of
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an Offer to Purchase made by the Company and required to be accepted as to
such Security, on the Purchase 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 has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security 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, as the case may
be.
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SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities 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, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security (including any Security which is required to have
been purchased pursuant to an Offer to Purchase made by the Company), or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including reasonable attorney's fees and expenses against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided, that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Trustee or the Company.
SECTION 515. 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.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, 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. Whether or not therein
expressly so provided,
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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.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder as and
to the extent provided by the Trust Indenture Act; provided, however, that in
the case of any default of the character specified in Section 501(4), no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) 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;
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(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) 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 pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) 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, other evidence of indebtedness 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;
(g) 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;
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(h) 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
(i) the Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(8) or Section 501(9), 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.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become
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the owner or pledgee of Securities and, subject to Sections 608 and 613, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 606. 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 in writing with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing 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 the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee or any predecessor Trustee and
their agents for, and to hold them harmless against, any and all loss,
liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee or any predecessor Trustee) incurred
without negligence or bad faith on its part, arising
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out of or in connection with the acceptance or administration of this
trust, 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.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000, with a Corporate Trust
Office in the Borough of Manhattan, The City of New York, New York. If such
Person publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person 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 610. 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 under Section 611.
(b) The Trustee may resign at any time 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
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such notice of resignation, the resigning Trustee may petition, at the expense
of the Company, any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and 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 removal, the Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the appointment
of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security 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 and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in
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the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner hereinafter provided, any Holder who has been a bona fide Holder of a
Security 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.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to 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. 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.
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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 612. 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 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 Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
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the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
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 authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said 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. If 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 any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to 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 may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any
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successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By ,
--------------------------
As Authenticating Agent
By
--------------------------
Authorized Officer
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. 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 more than 15 days after each Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of such Regular Record Date, 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect
to their rights under this Indenture or under the Securities and the
corresponding rights and duties of the Trustee, shall be provided by the Trust
Indenture Act.
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(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to the names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each March 1 following the date of this Indenture, deliver to
Holders a brief report, dated as of such March 1, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when the Securities are listed on any stock
exchange and of any delisting thereof.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder
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(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Merger, Consolidations and Certain Sales of Assets.
The Company shall not, in a single transaction or a series of related
transactions, (a) consolidate with or merge into or reorganize with or into any
other Person or permit any other Person to consolidate with or merge into or
reorganize with or into the Company, or (b) directly or indirectly, transfer,
convey, sell, lease or otherwise dispose of all or substantially all of its
assets to any other Person, unless in each case:
(i) in a transaction (or series) in which the Company does not
survive or in which the Company sells, leases or otherwise disposes of all
or substantially all of its assets, the successor entity to the Company is
organized under the laws of the United States of America, any State thereof
or the District of Columbia (a "Successor Company") and shall expressly
assume, by a supplemental indenture executed and delivered to the Trustee
in form satisfactory to the Trustee, all of the Company's obligations under
this Indenture;
(ii) immediately before and after giving effect to such transaction
(or series) and treating any Debt which becomes an obligation of the
Company or a Subsidiary (or Successor Company) as a result of such
transaction (or series) as having been Incurred by the Company or such
Subsidiary (or Successor Company) at the time of the transaction (or
series), no Event of Default or event that with the passing of time or the
giving of notice, or both, would constitute an Event of Default shall have
occurred and be continuing;
(iii) immediately after giving effect to such transaction (or
series), the Consolidated Net Worth of the Company (or Successor Company)
is equal to or greater than 90% of the Company's Consolidated Net Worth
immediately prior to the transaction (or series);
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(iv) immediately after giving effect to such transaction (or series)
and treating any Debt which becomes an obligation of the Company or a
Subsidiary as a result of such transaction (or series) as having been
Incurred by the Company or such Subsidiary at the time of the transaction
(or series), the Company (including any Successor Company), after giving
pro forma effect thereto as if such transaction (or series) had occurred at
the beginning of the most recently ended four full fiscal quarter period
for which financial statements are available immediately preceding the date
of such transaction (or series), could Incur at least $1.00 of additional
Debt pursuant to the Consolidated EBITDA to Interest Ratio test and the
test of the excess of the Company's Consolidated Adjusted Net Worth over
the Company's Minimum Adjusted Net Worth, each set forth in the first
paragraph of Section 1008;
(v) if, as a result of any such transaction, property and assets of
the Company or any Subsidiary would become subject to a Lien which would
not be permitted by Section 1014, the Company or, if applicable, the
Successor Company, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or
prior to) the Debt secured by such Lien; or
(vi) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer, sale, lease or acquisition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture, complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with, and, with respect to such Officer's Certificate, setting
forth the calculations demonstrating compliance with Clauses (iii) and (iv)
above.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other Person or any transfer, conveyance, sale, lease or other disposition
of all or substantially all of the properties and assets of the Company as an
entirety in accordance with Section 801, the
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Successor Company shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such Successor Company had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by 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 a Successor Company to the Company
and the assumption by any such Successor Company of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to secure the Securities pursuant to the requirements of Section
1014 or otherwise; or
(4) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under
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this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such action pursuant to this Clause (5) shall not
adversely affect the interests of the Holders 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 aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by 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 under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable thereon, or
change the place of payment where, or the coin or currency in which, any
Security 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, in the case of redemption, on or after the
Redemption Date or, in the case of an Offer to Purchase which has been
made, on or after the Purchase Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder
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and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of Section 1018 or 1019 or the
related definitions in a manner adverse to the Holders, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1021, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
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.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities 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 Securities 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 authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and premium, if
any) and interest on the Securities in accordance with the terms of the
Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices
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and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, The City
of New York, for such purposes. The Company 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.
SECTION 1003. Money for Security Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on
or before 10:00 a.m., New York time, on the due date of the principal of (and
premium, if any) or interest on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest 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 its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of (and premium, if any) or interest on any
Securities, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest,
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:
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(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities 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 Securities) in the making of any payment of
principal (and premium, 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
money.
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, if any)
or interest on any Security and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
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 a newspaper published in the English language, customarily
published on each Business Day and of
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general circulation in The City of New York, 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. Existence.
Subject to Article Eight and Section 1018, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors in good faith 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 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of its
business or the business of any Subsidiary of the Company 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 from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is desirable in the conduct of its business or the business of
any Subsidiary and not disadvantageous in any material respect to the Holders.
SECTION 1006. 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 the Company or any of its Subsidiaries or upon
the income, profits or property of the Company or any of its Subsidiaries, 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 of its
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Subsidiaries; 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 and for which adequate reserves are being
maintained to the extent required by generally accepted accounting principles.
SECTION 1007. Maintenance of Insurance.
The Company shall, and shall cause its Subsidiaries to, keep at all times
all of their properties which are of an insurable nature insured against loss or
damage with insurers believed by the Company to be responsible to the extent
that property of similar character is usually so insured by corporations
similarly situated and owning like properties in accordance with good business
practice.
SECTION 1008. Limitation on Debt.
The Company shall not Incur any Debt, and shall not permit any Subsidiary
of the Company to Incur any Debt unless, immediately after giving effect to the
Incurrence of such Debt and the receipt and application of the proceeds thereof,
(i) the Consolidated EBITDA to Interest Ratio of the Company for the last four
full fiscal quarters for which quarterly or annual financial statements are
available would be greater than 1.3 to 1 and (ii) the Consolidated Adjusted Net
Worth of the Company would be greater than the Minimum Adjusted Net Worth of the
Company.
Notwithstanding the foregoing limitation, the Company or any Subsidiary of
the Company may Incur the following Debt:
(i) Debt Incurred by the Company under its Guarantee of the FCRPC
Credit Agreement or by any Subsidiary of the Company under the FCRPC Credit
Agreement in an aggregate principal amount at any one time not to exceed
$225 million, and any renewal, extension, refinancing or refunding thereof
(including, without limitation, the replacement of the banks under the
FCRPC Credit Agreement with a new group of banks) in an amount which,
together with any amount remaining outstanding or available under the FCRPC
Credit Agreement, does not exceed $225 million; provided that such
refinancing or refunding Debt does not have a
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Weighted Average Life that is less than the Weighted Average Life of the
Debt being refinanced or refunded;
(ii) Performance guarantees and performance bonds, surety bonds and
appeal bonds in each case incurred in the ordinary course of business and
consistent with past practices;
(iii) Debt evidenced by the Securities;
(iv) Debt (other than Debt described in another clause of this
paragraph) outstanding on the date of original issuance of the Securities
after giving effect to the application of the proceeds of the Securities;
(v) Debt owed by the Company to any Wholly Owned Subsidiary of the
Company for which fair value has been received or Debt owed by a Subsidiary
of the Company to the Company or a Wholly Owned Subsidiary of the Company;
provided, however, that (a) any such Debt owing by the Company to a Wholly
Owned Subsidiary shall be Subordinated Debt evidenced by an intercompany
promissory note and (b) upon either (1) the transfer or other disposition
by such Wholly Owned Subsidiary or the Company of any Debt so permitted to
a Person other than the Company or another Wholly Owned Subsidiary of the
Company or (2) the issuance (other than directors' qualifying shares),
sale, lease, transfer or other disposition of shares of Capital Stock
(including by consolidation or merger) of such Wholly Owned Subsidiary to a
Person other than the Company or another such Wholly Owned Subsidiary, the
provisions of this clause (v) shall no longer be applicable to such Debt
and such Debt shall be deemed to have been Incurred at the time of such
transfer or other disposition;
(vi) Debt Incurred by a Person prior to the time (A) such Person
became a Subsidiary of the Company, (B) such Person merged into or
consolidated with a Subsidiary of the Company or (C) another Subsidiary of
the Company merged into or consolidated with such Person (in a transaction
in which such Person became a Subsidiary of the Company) which Debt was not
Incurred in anticipation of such transaction and was outstanding prior to
such transaction, provided that after giving pro forma effect to such
transaction and
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treating any Debt as having been Incurred at the time of such transaction,
the Company could Incur at least $1.00 of additional Debt pursuant to the
preceding paragraph;
(vii) Development Debt Incurred by the Company or any Subsidiary of
the Company; provided that the Incurrence of all such Development Debt
would have been permitted under the limitations set forth in the first
paragraph of this covenant on the date that the first $1.00 of such Debt
was Incurred (the "Development Start Date") determined as if all such
Development Debt had been incurred on the Development Start Date; provided,
further that, if all such Development Debt could be Incurred by the Company
or any Subsidiary of the Company on the Development Start Date in
accordance with the immediately preceding proviso, then individual
borrowings or draw downs in an aggregate amount of such Development Debt
shall not be subject to the requirements of the first paragraph of this
covenant;
(viii) Debt Incurred by the Company or any of its Subsidiaries
consisting of Permitted Interest Rate, Currency or Commodity Price
Agreements;
(ix) Debt which is exchanged for or the proceeds of which are used to
refinance or refund, or any extension or renewal of, outstanding Debt
Incurred pursuant to the preceding paragraph or clauses (iii), (iv), (vi)
or (vii) of this paragraph (each of the foregoing, a "refinancing") in an
aggregate principal amount not to exceed the principal amount of the Debt
so refinanced plus the amount of any premium required to be paid in
connection with such refinancing pursuant to the terms of the Debt so
refinanced or the amount of any premium reasonably determined by the
Company or the relevant Subsidiary as necessary to accomplish such
refinancing by means of a tender offer or privately negotiated repurchase,
plus the expenses of the Company or the Subsidiary, as the case may be,
incurred in connection with such refinancing; provided, however, that (A)
in the case of any refinancing of Debt which is subordinated in right of
payment to the Securities, the refinancing Debt is Incurred by the Company
and constitutes Subordinated Debt; (B) the refinancing Debt by its terms,
or by the terms of any agreement or instrument pursuant to which such Debt
is issued,
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(1) does not have a Weighted Average Life less than the Weighted Average
Life of the Debt being refinanced and does not have a maturity earlier than
the final stated maturity of the Debt being refinanced and (2) does not
permit redemption or other retirement (including pursuant to an offer to
purchase) of such Debt at the option of the holder thereof prior to the
final stated maturity of the Debt being refinanced, other than a redemption
or other retirement at the option of the holder of such Debt (including
pursuant to an offer to purchase) which is conditioned upon provisions
substantially similar to those described under Section 1018 and Section
1019; and (C) in the case of any refinancing of Debt Incurred by the
Company, the refinancing Debt may be Incurred only by the Company, and in
the case of any refinancing of Debt Incurred by a Subsidiary, the
refinancing Debt may be Incurred only by such Subsidiary; provided,
further, that Debt Incurred pursuant to this clause (ix) may not be
Incurred more than 45 days prior to the application of the proceeds to
repay the Debt to be refinanced; and
(x) Debt Incurred by the Company or any Subsidiary of the Company not
otherwise permitted to be Incurred pursuant to clauses (i) through (ix)
above, which, together with any other outstanding Debt Incurred pursuant to
this clause (x), has an aggregate principal amount not in excess of $50
million at any time outstanding.
SECTION 1009. Limitation on Preferred Stock of Subsidiaries.
The Company shall not cause, and shall not permit, any Subsidiary of the
Company to issue any Preferred Stock except:
(i) Preferred Stock held by a Wholly-Owned Subsidiary or held by the
Company;
(ii) Preferred Stock of an entity when it is acquired which is
outstanding at the time of such acquisition and not incurred in
anticipation of such acquisition; provided, that the Company could Incur
Debt in an amount equal to the liquidation value
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of such Preferred Stock pursuant to the first paragraph of Section 1008;
and
(iii) Preferred Stock issued by a Subsidiary of the Company (other
than Forest City Rental Properties Corporation), provided that (a) the
liquidation value of such Preferred Stock is treated as Debt Incurred at
the time such Preferred Stock is issued for all purposes under the
Indenture, (b) all dividends on such Preferred Stock, whether or not
declared or paid, are treated as Consolidated Interest Expense and (c) at
the time of the issuance of such Preferred Stock and after giving effect to
the issuance of such Preferred Stock as Debt Incurred at the time of the
issuance thereof, the Company could Incur at least $1.00 of additional Debt
pursuant to the first paragraph of Section 1008.
SECTION 1010. Limitation on Restricted Payments.
The Company (i) shall not, and shall not permit any Subsidiary of the
Company to, directly or indirectly, declare or pay any dividend or make any
distribution (including any payment in connection with any merger or
consolidation derived from assets of the Company or any Subsidiary) in respect
of its Capital Stock or to the holders thereof, excluding (a) any dividends or
distributions by the Company payable solely in shares of its Capital Stock
(other than Redeemable Stock) or in options, warrants or other rights to acquire
its Capital Stock (other than Redeemable Stock),(b) in the case of a Subsidiary
of the Company, dividends or distributions payable to the Company or a Wholly
Owned Subsidiary of the Company, pro rata dividends or distributions payable
solely in shares of its Capital Stock (other than Redeemable Stock) or in
options, warrants or other rights to acquire its Capital Stock (other than
Redeemable Stock), and (c) in the case of a Subsidiary of the Company, dividends
or distributions payable pursuant to the terms of its organizational documents,
(ii) may not, and may not permit any Subsidiary to, purchase, redeem, or
otherwise acquire or retire for value (a) any Capital Stock of the Company or
(b) any options, warrants or other rights to acquire shares of Capital Stock of
the Company or any securities convertible or exchangeable into shares of Capital
Stock of the Company and (iii) may not, and may not
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permit any Subsidiary of the Company to, redeem, repurchase, defease or
otherwise acquire or retire for value prior to any scheduled maturity, repayment
or sinking fund payment Debt of the Company which is subordinate in right of
payment to the Securities (each of clauses (i) through (iii) being a "Restricted
Payment") if: (1) an Event of Default, or an event that with the passing of time
or the giving of notice, or both, would constitute an Event of Default, shall
have occurred and is continuing or would result from such Restricted Payment, or
(2) after giving pro forma effect to such Restricted Payment as if such
Restricted Payment had been made at the beginning of the applicable
four-fiscal-quarter period, the Company could not Incur at least $1.00 of
additional Debt pursuant to the first paragraph of Section 1008 above, or (3)
upon giving effect to such Restricted Payment, the aggregate of all Restricted
Payments from October 31, 1997 exceeds the sum of: (a) 25% of the sum of (i)
cumulative Consolidated Net Income (or, in the case Consolidated Net Income
shall be negative, less 100% of such deficit) of the Company since October 31,
1997 through the last day of the last full fiscal quarter ending immediately
preceding the date of such Restricted Payment (taken as a single accounting
period) plus (ii) the amount of consolidated depreciation and amortization and
deferred taxes included in such Consolidated Net Income less (iii) the amount of
ordinary and necessary expenditures for the purpose of maintaining the real and
personal property of the Company and its Subsidiaries in a state of good repair
that was included in such Consolidated Net Income or that was capitalized and
included on the consolidated balance sheet of the Company and its Subsidiaries
since October 31, 1997; plus (b) 100% of the aggregate net proceeds received by
the Company after the date of original issuance of the Securities, including the
fair market value of property other than cash (determined in good faith by the
Board of Directors as evidenced by a resolution of the Board of Directors of the
Company filed with the Trustee), from contributions of capital or the issuance
and sale (other than to a Subsidiary) of Capital Stock (other than Redeemable
Stock) of the Company, options, warrants or other rights to acquire Capital
Stock (other than Redeemable Stock) of the Company and the principal amount (or,
in the case of Debt issued at a discount, the accreted value of such Debt) of
Debt of the Company that has been converted into or exchanged for Capital Stock
(other than Redeemable Stock and other than by or from a Subsidiary) of the
Company after the date of original issuance of the Securities,
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provided that any such net proceeds received by the Company from an employee
stock ownership plan financed by loans from the Company or a Subsidiary of the
Company shall be included only to the extent such loans have been repaid with
cash on or prior to the date of determination; plus (c) $10 million. Prior to
the making of any Restricted Payment, the Company shall deliver to the Trustee
an Officers' Certificate setting forth the computations by which the
determinations required by clauses (2) and (3) above were made and stating that
no Event of Default, or event that with the passing of time or the giving of
notice, or both, would constitute an Event of Default, has occurred and is
continuing or will result from such Restricted Payment.
Notwithstanding the foregoing, so long as no Event of Default, or event
that with the passing of time or the giving of notice, or both, would constitute
an Event of Default, shall have occurred and is continuing or would result
therefrom, (i) the Company and any Subsidiary of the Company may pay any
dividend on Capital Stock of any class within 60 days after the declaration
thereof if, on the date when the dividend was declared, the Company or such
Subsidiary could have paid such dividend in accordance with the foregoing
provisions; (ii) the Company may refinance any Debt otherwise permitted by
clause (ix) of the second paragraph under Section 1008 above or solely in
exchange for or out of the net proceeds of the substantially concurrent sale
(other than from or to a Subsidiary or from or to an employee stock ownership
plan financed by loans from the Company or a Subsidiary of the Company) of
shares of Capital Stock (other than Redeemable Stock) of the Company, provided
that the amount of net proceeds from such exchange or sale shall be excluded
from the calculation of the amount available for Restricted Payments pursuant to
the preceding paragraph; (iii) the Company may purchase, redeem, acquire or
retire any shares of Capital Stock of the Company solely in exchange for or out
of the net proceeds of the substantially concurrent sale (other than from or to
a Subsidiary or from or to an employee stock ownership plan financed by loans
from the Company or a Subsidiary of the Company) of shares of Capital Stock
(other than Redeemable Stock) of the Company; (iv) the Company may purchase or
redeem any Debt from Net Available Proceeds to the extent permitted under
Section 1018; and (v) the Company may make payments with respect to the
extinguishment of fractional or odd-lot shares of its Capital Stock in an
aggregate amount not in excess of $250,000.
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SECTION 1011. Limitations Concerning Distributions By and Transfers to
Subsidiaries.
The Company shall not, and shall not permit any Subsidiary of the Company
to, directly or indirectly, suffer to exist or become effective any consensual
encumbrance or restriction on the ability of any Subsidiary of the Company (i)
to pay dividends (in cash or otherwise) or make any other distributions in
respect of its Capital Stock or pay any Debt or other obligation owed to the
Company or any other Subsidiary of the Company; (ii) to make loans or advances
to the Company or any other Subsidiary; or (iii) to transfer any of its property
or assets to the Company or any other Subsidiary. Notwithstanding the foregoing,
the Company may, and may permit any Subsidiary of the Company to, suffer to
exist any such encumbrance or restriction (a) pursuant to any agreement in
effect on the date of original issuance of the Securities (including the FCRPC
Credit Agreement); (b) pursuant to any future senior credit facility between
Forest City Rental Properties Corporation and a financial institution or
institutions or a senior credit facility between Forest City Trading Group, Inc.
and a financial institution or institutions, provided that notwithstanding any
such encumbrance or restriction contained therein, Forest City Rental Properties
Corporation (in the case of a Forest City Rental Properties Corporation senior
credit facility) and Forest City Trading Group, Inc. (in the case of a Forest
City Trading Group, Inc. senior credit facility) shall be permitted to
distribute to the Company, in the form of dividends, loans or advances, or any
combination thereof, (i) amounts sufficient to pay, when due, all interest
payments in respect of Debt of the Company, including the Notes, (ii) amounts
sufficient to pay, when due, all taxes of the Company, and (iii) except in the
case of any default by Forest City Rental Properties Corporation under any such
future credit facility, not less than $3.0 million per fiscal year to pay
administrative and other expenses of the Company, provided that any such future
credit facility may contain encumbrances or restrictions that restrict the
applicable Subsidiary's ability to make such distributions to the Company in the
event that Forest City Rental Properties Corporation fails to make any payment
of principal, interest or other charge, when due and payable in accordance with
the terms of such future credit facility (after giving effect to any applicable
grace periods); (c) pursuant to an agreement relating to any Debt Incurred by a
Person prior to the date on which such Person became a
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Subsidiary of the Company and outstanding on such date and not Incurred in
anticipation of becoming a Subsidiary, which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person so acquired; (d) pursuant to an agreement entered into by a
Subsidiary of the Company in connection with the acquisition, development,
construction or improvement of real property so long as such agreement is
required by a third party prior to making capital contributions, or extending
credit, to the Subsidiary; or (e) pursuant to an agreement effecting a renewal,
refunding or extension of Debt Incurred pursuant to an agreement referred to in
clause (a), (b), (c) or (d) (including, solely for purposes of this clause (e),
renewals, refinancings and extensions of Debt Incurred pursuant to an agreement
referred to in clause (d) that are in excess of the original amount of such
Debt) above, provided, however, that the provisions contained in such renewal,
refunding or extension agreement relating to such encumbrance or restriction are
no more restrictive in any material respect than the provisions contained in the
agreement the subject thereof, in the reasonable judgment of the Chief Executive
Officer of the Company and evidenced by a certificate therefrom filed with the
Trustee.
SECTION 1012. Limitation on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Subsidiary to, enter into
any Sale and Leaseback Transaction unless all of the conditions of the Indenture
described under Section 1018 (including the provisions concerning the
application of Net Available Proceeds) are satisfied with respect to such Sale
and Leaseback Transaction, treating all of the consideration received in such
Sale and Leaseback Transaction as Net Available Proceeds for purposes of such
covenant.
SECTION 1013. Limitation on Layered Debt of Subsidiaries.
The company may not permit any Subsidiary to Incur any Debt that is by its
terms subordinate in right of payment to the FCRPC Credit Agreement.
SECTION 1014. Limitation on Liens.
The Company may not, and may not permit any Subsidiary of the Company to,
Incur or suffer to exist any
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Lien to secure Debt on or with respect to any property or assets now owned or
hereafter acquired (i) if such Lien secures Debt which is pari passu with the
Securities, unless the Securities are secured on an equal and ratable basis with
the obligations so secured until such time as such obligation is no longer
secured by a Lien or (ii) if such Lien secures Debt which is subordinated to the
Securities, unless any such Lien shall be subordinated to the Lien granted to
the Holders of the Securities to the same extent as such subordinated Debt is
subordinated in right of payment to the Securities. The foregoing restriction
will not apply to Liens on property or other assets of the Company as described
in the definition of Purchase Money Debt to secure Purchase Money Debt otherwise
permitted under the Indenture or Liens to secure Debt Incurred to extend, renew,
refinance or refund (or successive extensions, renewals, refinancings or
refundings), in whole or in part, Purchase Money Debt secured by a Lien so long
as such Lien does not extend to any other property and the principal amount (or,
in the case of Debt issued at a discount, the accreted value thereof) of Debt so
secured is not increased.
SECTION 1015. Limitation on Issuances and Sales of Capital
Stock of Subsidiaries.
Subject to Article Eight (if applicable), the Company (i) may not, and may
not permit any Subsidiary of the Company to, transfer, convey, sell, lease or
otherwise dispose of any Capital Stock of such or any other Subsidiary of the
Company to any Person (other than the Company or a Wholly Owned Subsidiary
thereof) and (ii) may not permit any Subsidiary to issue shares of its Capital
Stock (other than directors' qualifying shares and other than to the Company or
a Wholly Owned Subsidiary thereof), except in either case if (a) in the case of
any Subsidiary of the Company other than Forest City Rental Properties
Corporation, the Net Available Proceeds from such sale, assignment, transfer,
issuance or conveyance are applied in accordance with Section 1018 (including
the provisions relating to the application of the Net Available Proceeds) or (b)
the issuance of Preferred Stock which is permitted to be issued in accordance
with the provisions described under Section 1009.
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SECTION 1016. Transactions with Affiliates and Related Persons.
The Company may not, and may not permit any Subsidiary of the Company to,
enter into any transaction (or series of related transactions) with an Affiliate
or Related Person of the Company (other than the Company or a Wholly Owned
Subsidiary of the Company), including any Investment, either directly or
indirectly, unless such transaction is on terms no less favorable to the Company
or such Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate or Related
Person and is in the best interest of such Company or such Subsidiary. For any
transaction that involves in excess of $1 million but less than or equal to $5
million, the Chief Executive Officer of the Company shall determine that the
transaction satisfies the above criteria and shall evidence such a determination
by a certificate filed with the Trustee. For any transaction that involves in
excess of $5 million, a majority of the disinterested members of the Board of
Director shall determine that the transaction satisfies the above criteria and
shall evidence such a determination by a Board Resolution filed with the
Trustee. For any transaction that involves in excess of $20 million, the Company
shall also obtain an opinion from a nationally recognized expert with experience
in appraising the terms and condition of the type of transaction (or series of
related transactions) for which the opinion is required stating that such
transaction (or series of related transactions) is on terms no less favorable to
the Company or such Subsidiary than those that could be obtained in a comparable
arm's-length transaction with an entity that is not an Affiliate or Related
Person of the Company, which opinion shall be filed with the Trustee.
SECTION 1017. Provision of Financial Information.
Whether or not the Company is required to be subject to Section 13(a) or
15(d) of the Exchange Act, the Company shall 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(a) or 15(d) or
any successor provision thereto if the Company were so required, 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
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if the Company were so required. The Company shall also in any event (a) 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, 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(a) or 15(d) of the Exchange Act or
any successor provisions thereto if the Company were required to be subject to
such Sections and (b) if filing such documents by the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request supply copies of such documents to any prospective Holder.
SECTION 1018. Asset Dispositions.
(a) The Company shall not, and shall not permit any Subsidiary to, make any
Asset Disposition in one or more related transactions unless: (i) the Company or
the Subsidiary, as the case may be, receives consideration for such disposition
at least equal to the fair market value for the assets sold or disposed of as
determined by the Board of Directors of the Company in good faith and evidenced
by a resolution of the Board of Directors filed with the Trustee; and (ii) all
Net Available Proceeds, less any amounts invested within 365 days of such
disposition in assets of the Company or any Subsidiary thereof used in a
Permitted Business (including Capital Stock of an entity which is engaged in a
Permitted Business), are applied within 365 days of such disposition to the
permanent repayment or reduction of outstanding Debt that is pari passu with the
Notes, or any outstanding Debt of any Subsidiary of the Company, the terms of
which would require such application or prohibit payments as required by this
Section 1018. The amount of Net Available Proceeds from any Asset Disposition
less any amounts used in a Permitted Business or applied to reduce Debt during
the 365 day period set forth in the preceding sentence constitutes "Excess
Proceeds." Excess Proceeds will be segregated not later than 365 days after such
disposition from the other assets of the Company and its Subsidiaries and
invested in cash or Cash Equivalents until such time as such Excess Proceeds are
applied as specified in Section 1018(b). Any Asset Disposition resulting from a
condemnation of a property by a court or governmental agency having jurisdiction
over such property shall not be required to comply with clause (i) of the first
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sentence of this Section 1018, but shall otherwise be subject to all
requirements of this covenant.
(b) When the aggregate amount of Excess Proceeds exceeds $10,000,000, the
Company will, within 30 days thereof, apply such aggregate Excess Proceeds (1)
first, to make an Offer to Purchase Outstanding Securities at 100% of their
principal amount plus accrued interest to the date of purchase and, to the
extent required by the terms thereof, any other Debt of the Company that is pari
passu with the Securities at a price no greater than 100% of the principal
amount thereof plus accrued interest to the date of purchase, (2) second, to the
extent of any remaining Excess Proceeds following the completion of the Offer to
Purchase, to the repayment of other Debt of the Company that is pari passu with
the Securities, or any Debt of any Subsidiary of the Company, to the extent
permitted under the terms thereof and (3) third, to the extent of any remaining
Net Available Proceeds, to any other use as determined by the Company which is
not otherwise prohibited by the terms of this Indenture. Upon the completion of
an Offer to Purchase pursuant to this paragraph, the amount of Excess Proceeds
shall be reset to zero.
(c) The Company will mail the Offer for an Offer to Purchase required
pursuant to Section 1018(a) not more than 30 days after such Excess Proceeds
exceed $10,000,000. The aggregate principal amount of the Securities to be
offered to be purchased pursuant to the Offer to Purchase shall equal the Excess
Proceeds available therefor pursuant to Section 1018(a) (rounded down to the
next lowest integral multiple of $1,000). Each Holder shall be entitled to
tender all or any portion of the Securities owned by such Holder pursuant to the
Offer to Purchase, subject to the requirement that any portion of a Security
tendered must be tendered in an integral multiple of $1,000 principal amount.
The Company shall not be entitled to any credit against its obligations
under this Section 1018 for the principal amount of any Securities acquired by
the Company otherwise than pursuant to the Offer to Purchase pursuant to this
Section 1018.
(d) Not later than the date of the Offer with respect to an Offer to
Purchase pursuant to this Section 1018, the Company shall deliver to the Trustee
an Officers' Certificate as to (i) the Xxxxxxxx Xxxxxx,
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(xx) the allocation of the Net Available Proceeds from the Asset Disposition
pursuant to which such Offer is being made, including, if amounts are invested
in assets that will be used in a Permitted Business, the actual assets acquired
and a statement that such assets are being used in a Permitted Business and
(iii) the compliance of such allocation with the provisions of this Section
1018.
The Company and the Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment (on a pro rata basis, if
necessary) Securities or portions thereof tendered pursuant to the Offer, (ii)
deposit with the paying agent (or, if the Company is acting as its own paying
agent, segregate and hold in trust as provided in Section 1003) money sufficient
to pay the purchase price of all Securities or portions thereof so accepted and
(iii) deliver or cause to be delivered to the Trustee all Securities so accepted
together with an Officers' Certificate setting forth the Securities or portions
thereof accepted for payment by the Company. The Paying Agent (or the Company,
if so acting) shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security tendered. Any
Security not accepted for payment shall be promptly mailed or delivered by the
Company to the Holder thereof. The Company shall publicly announce the results
of the Offer on or as soon as practicable after the Purchase Date.
SECTION 1019. Change of Control.
(a) Within 30 days following the date of the consummation of a transaction
resulting in a Change of Control, the Company shall mail an Offer with respect
to an Offer to Purchase all Outstanding Securities at a purchase price equal to
101% of their principal amount plus accrued interest to the Purchase Date
(provided, however, that instalments of interest whose Stated Maturity is on or
prior to the Purchase Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307). Each Holder shall be entitled to tender all or any
portion of the Securities owned by such Holder
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pursuant to the Offer to Purchase, subject to the requirement that any portion
of a Security tendered must be tendered in an integral multiple of $1,000
principal amount. A "Change of Control" will be deemed to have occurred at such
time as either (a) any Person (other than a Permitted Holder) or any Persons
acting together that would constitute a "group" (a "Group") for purposes of
Section 13(d) of the Exchange Act, or any successor provision thereto (other
than Permitted Holders), together with any Affiliates or Related Persons
thereof, shall beneficially own (within the meaning of Rule 13d-3 under the
Exchange Act, or any successor provision thereto) at least 30% of the aggregate
voting power of all classes of Voting Stock of the Company; or (b) any Person or
Group (other than Permitted Holders), together with any Affiliates or Related
Persons thereof, shall succeed in having a sufficient number of its nominees
elected to the Board of Directors of the Company such that such nominees, when
added to any existing director remaining on the Board of Directors of the
Company after such election who was a nominee of or is an Affiliate or Related
Person of such Person or Group, will constitute a majority of the Board of
Directors of the Company.
(b) The Company and the Trustee shall perform their respective obligations
specified in the Offer for the Offer to Purchase. On or prior to the Purchase
Date, the Company shall (i) accept for payment Securities or portions thereof
tendered pursuant to the Offer, (ii) deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) money sufficient to pay the Purchase Price of all
Securities or portions thereof so tendered and (iii) deliver or cause to be
delivered to the Trustee all Securities so repurchased together with an
Officers' Certificate setting forth the Securities or portions thereof
repurchased by the Company. The Paying Agent shall promptly mail or deliver to
Holders of Securities so tendered payment in an amount equal to the Purchase
Price, and the Trustee shall promptly authenticate and mail or deliver to such
Holders a new Security or Securities equal in principal amount to any
unpurchased portion of the Security tendered as requested by the Holder. The
Company shall publicly announce the results of the Offer on or as soon as
practicable after the Purchase Date.
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SECTION 1020. Statement by Officers as to Default; Compliance Certificates.
(a) The Company will deliver to the Trustee, within 90 days after the end
of each fiscal year, and within 60 days after the end of each fiscal quarter
(other than the fourth fiscal quarter), of the Company ending after the date
hereof an Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge. For purposes of this Section
1020, such compliance or default shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
(b) The Company shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Company becomes aware or should reasonably
become aware of the occurrence of an Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an
Officers' Certificate setting forth the details of such Event of Default or
default, and the action which the Company proposes to take with respect thereto.
SECTION 1021. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 801 and Sections 1004 to 1017, inclusive, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, 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 covenant or condition shall remain in full
force and effect.
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ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, as a whole
or from time to time in part, (a) at any time on or after March __, 2003, at the
Redemption Prices specified in the form of Security hereinbefore set forth and
(b) at any time prior to March __, 2001, from the net proceeds of a Public
Equity Offering, at the Redemption Price specified in the form of Security
hereinbefore set forth, together, in each case, with accrued interest to the
Redemption Date; provided, however, that, in the case of a redemption pursuant
to clause (b) of this Section 1101, the Company may not redeem more than 33% of
the original principal amount of the Securities in connection with any one
redemption and that, after giving effect to any such redemption, at least $130
million aggregate principal amount of Securities remain Outstanding.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of all or less than all the
Securities, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed. In the case of any redemption at the election of
the Company pursuant to Section 1101 prior to March __, 2001, the Redemption
Date must be within 75 days of the earlier of (i) the last sale of Common Stock
pursuant to the Public Equity Offering and (ii) the expiration of any
over-allotment option granted in connection with the Public Equity Offering, and
the Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with clause (b) of Section 1101.
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SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by lot or by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company and each Security Registrar
in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable
108
upon each such Security to be redeemed and that interest thereon will cease
to accrue on and after said date,
(5) whether the redemption is being made pursuant to Section 1101(a)
or Section 1101(b), and a brief explanation of the basis therefor,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) in case any Security is to be redeemed part only, the notice which
relates to such Security shall state that on and after the Redemption Date,
upon surrender of such Security, the holder will receive, without charge, a
new Security or Securities of authorized denominations for the principal
amount thereof remaining unredeemed.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. All notices of redemption
shall be irrevocable.
SECTION 1106. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on 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 the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear
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interest. Upon surrender of any such Security for redemption in accordance with
said notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
instalments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate of % per annum.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Company designated for that purpose pursuant to
Section 1002 (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 attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may at its option by Board Resolution, at any time, elect to
have either Section 1202 or Section 1203 applied to the Outstanding Securities
upon compliance with the conditions set forth below in this Article Twelve.
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SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities on the date the
conditions set forth below 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 the Outstanding Securities and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities 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 Securities to
receive, solely from the trust fund described in Section 1204 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 311, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Twelve. Subject to compliance with
this Article Twelve, the Company may exercise its option under this Section 1202
notwithstanding the prior exercise of its option under Section 1203.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1201
applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1017, inclusive, and Clauses (iii), (iv)
and (v) of Section 801, (ii) the occurrence of an event specified in Sections
501(4) (with respect to Clauses (iii), (iv) or (v) of Section 801), 501(4) (with
respect to any of Sections 1005 through 1017, inclusive), 501(6) and 501(7)
shall not be deemed to be an Event of Default on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant defeasance").
For this purpose, such covenant defeasance means that 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, Clause or Article, whether directly or
indirectly by reason of any reference elsewhere herein to any such Section,
Clause or Article or by reason of any reference in any such Section, Clause or
Article to any other provision herein or
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in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 1202
or Section 1203 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Twelve applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, the
principal of (premium, if any,) and each instalment of interest on the
Securities on the Stated Maturity of such principal or instalment of
interest in accordance with the terms of this Indenture and of such
Securities.
(2) In the case of an election under Section 1202, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this
Indenture there
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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 the Outstanding Securities will not recognize
gain or loss for Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit, defeasance and
discharge had not occurred.
(3) In the case of an election under Section 1203, the Company
shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities will not
recognize gain or loss for Federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to Federal
income tax on the same amount, in the same manner and at the same
times as would have been the case if such deposit and covenant
defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officers'
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company.
(6) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default shall have occurred and
be continuing on the date of such deposit or, insofar as subsections
501(8) and (9) are concerned, at any time during the period ending on
the 123rd day after the date of such deposit (it being
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understood that this condition shall not be deemed satisfied until the
expiration of such period).
(7) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1202 or the covenant defeasance under Section 1203 (as
the case may be) have been complied with.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1205. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and U.S. Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee--collectively, for purposes of this
Section 1205, the "Trustee") pursuant to Section 1204 in respect of the
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities,
of all sums due and to become due thereon in respect of principal (and premium,
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
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against the U.S. Government Obligations deposited pursuant to Section 1204 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 the
Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1204 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 an equivalent defeasance or covenant
defeasance.
SECTION 1206. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1202 or 1203 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Twelve until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1202 or 1203;
provided, however, that if the Company makes any payment of principal of (and
premium, if any) or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
--------------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
FOREST CITY ENTERPRISES, INC.
By
--------------------------
Attest:
--------------------------
THE BANK OF NEW YORK,
as Trustee
By
--------------------------
Attest:
---------------------------
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XXXXX XX XXX XXXX ) ss:
COUNTY OF NEW YORK )
On the _____ day of __________, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that he is ___________________________________________________ of
Forest City Enterprises, Inc., one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
------------------------------
STATE OF NEW YORK ) ss:
COUNTY OF NEW YORK )
On the _____ day of __________, 1998, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of The Bank of New York, one
of the corporations described in and which executed the foregoing instrument;
that [he -- she] knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that [he -- she] signed [his --
her] name thereto by like authority.
------------------------------
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Table of Contents
Page
----
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101 Definitions.................................................................. 1
Act.............................................................................. 2
Affiliate ........................................................................ 2
Applicable Procedures ............................................................ 2
Asset Disposition ................................................................ 3
Authenticating Agent ............................................................. 3
Board of Directors ............................................................... 3
Board Resolution 3
Business Day ..................................................................... 3
Capital Lease Obligation3
Capital Stock .................................................................... 4
Cash Equivalents ................................................................. 4
Change of Control ................................................................ 4
Commission ....................................................................... 4
Common Development ............................................................... 5
Common Stock ..................................................................... 5
Company .......................................................................... 5
Company Request .................................................................. 5
Company Order .................................................................... 5
Consolidated Adjusted Net Worth .................................................. 5
Consolidated EBITDA .............................................................. 5
Consolidated EBITDA to Interest Ratio ............................................ 6
Consolidated Income Tax Expense .................................................. 6
Consolidated Interest Expense .................................................... 7
Consolidated Net Income .......................................................... 7
Consolidated Net Worth ........................................................... 8
consolidation .................................................................... 8
Corporate Trust Office ........................................................... 9
corporation ...................................................................... 9
Debt ............................................................................. 9
Depositary ....................................................................... 10
Development Debt ................................................................. 10
DTC .............................................................................. 10
Event of Default ................................................................. 11
Exchange Act ..................................................................... 11
Expiration Date .................................................................. 11
fair market value ................................................................ 11
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118
FCRPC Credit Agreement ........................................................... 11
FCRPC Guaranty ................................................................... 11
Global Security .................................................................. 11
guarantee ........................................................................ 11
Holder ........................................................................... 12
Incur ............................................................................ 12
Indenture ........................................................................ 12
Interest Payment Date ............................................................ 12
Interest Rate, Currency or Commodity Price
Agreement ....................................................................... 12
Investment ....................................................................... 13
Lien ............................................................................. 13
Material Subsidiary .............................................................. 13
Maturity ......................................................................... 13
Minimum Adjusted Net Worth ....................................................... 14
Net Available Proceeds ........................................................... 14
Non-Recourse ..................................................................... 15
Offer ............................................................................ 15
Offer to Purchase ................................................................ 15
Officers' Certificate ............................................................ 18
Opinion of Counsel ............................................................... 18
Outstanding ...................................................................... 18
pari passu ....................................................................... 19
---------------------------------------------------------------------------------- --
Paying Agent ..................................................................... 20
Permitted Business ............................................................... 20
Permitted Holder 20
Permitted Interest Rate, Currency or Commodity
Price Agreement 20
Person 21
Predecessor Security ............................................................. 21
Preferred Stock .................................................................. 21
Public Equity Offering ........................................................... 21
Purchase Amount .................................................................. 21
Purchase Date .................................................................... 21
Purchase Money Debt .............................................................. 21
Purchase Price ................................................................... 22
Receivables ...................................................................... 22
Receivables Sale 22
Recourse Debt .................................................................... 22
Redeemable Stock 22
Redemption Date .................................................................. 22
Redemption Price 22
Regular Record Date .............................................................. 22
Related Person ................................................................... 23
Responsible Officer .............................................................. 23
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Restricted Payment ............................................................... 23
Sale and Leaseback Transaction ................................................... 23
Securities ....................................................................... 23
Securities Custodian ............................................................. 23
Security Register ................................................................ 23
Security Registrar ............................................................... 23
Special Record Date .............................................................. 24
Stated Maturity .................................................................. 24
Subordinated Debt ................................................................ 24
Subsidiary ....................................................................... 25
Trust Indenture Act .............................................................. 25
Trustee 25
U.S. Government Obligations ...................................................... 25
Vice President ................................................................... 26
Voting Stock ..................................................................... 26
Weighted Average Life ............................................................ 26
Wholly Owned Subsidiary .......................................................... 26
SECTION 102. Compliance Certificates and Opinions ..................................... 27
SECTION 103. Form of Documents Delivered to Trustee ................................... 27
SECTION 104. Acts of Holders; Record Date .............................................. 28
SECTION 105. Notices, Etc., to Trustee and Company ..................................... 31
SECTION 106. Notice to Holders; Waiver ................................................. 32
SECTION 107. Conflict with Trust Indenture Act ......................................... 32
SECTION 108. Effect of Headings and Table of Contents .................................. 32
SECTION 109. Successors and Assigns .................................................... 33
SECTION 110. Separability Clause ....................................................... 33
SECTION 111. Benefits of Indenture ..................................................... 33
SECTION 112. Governing Law ............................................................. 33
SECTION 113. Legal Holidays ............................................................ 33
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ARTICLE TWO
Security Forms
SECTION 201. Forms Generally ............................................................ 34
SECTION 202. Form of Face of Security ................................................... 34
SECTION 203. Form of Reverse of Security ................................................ 36
SECTION 204. Form of Trustee's Certificate of
Authentication .................................................... 41
SECTION 205. Form of Legend for Global Securities .......................................... 42
ARTICLE THREE
The Securities
SECTION 301. Title and Terms ............................................................ 42
SECTION 302. Denominations .............................................................. 44
SECTION 303. Execution, Authentication, Delivery and
Dating ............................................................ 44
SECTION 304. Temporary Securities ...................................................... 45
SECTION 305. Registration, Registration of Transfer
and Exchange ..................................................... 45
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities ....................................................... 47
SECTION 307. Payment of Interest; Interest Rights
Preserved ........................................................ 48
SECTION 308. Persons Deemed Owners ..................................................... 50
SECTION 309. Cancellation .............................................................. 50
SECTION 310. Computation of Interest ................................................... 50
SECTION 311. Global Securities. ........................................................ 00
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XXXXXXX 000. CUSIP Numbers ............................................................. 52
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture ................................... 52
SECTION 402. Application of Trust Money ............................................... 54
ARTICLE FIVE
Remedies
SECTION 501. Events of Default .......................................................... 54
SECTION 502. Acceleration of Maturity; Rescission and Annulment ......................... 58
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee ............ 59
SECTION 504. Trustee May File Proofs of Claim ........................................... 60
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities .......................................... 61
SECTION 506. Application of Money Collected ............................................. 61
SECTION 507. Limitation on Suits ........................................................ 61
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium and
Interest ......................................................... 62
SECTION 509. Restoration of Rights and Remedies ........................................ 63
SECTION 510. Rights and Remedies Cumulative ........................................ 63
SECTION 511. Delay or Omission Not Waiver............................................... 63
SECTION 512. Control by Holders ........................................................ 64
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SECTION 513. Waiver of Past Defaults ................................................... 64
SECTION 514. Undertaking for Costs ..................................................... 65
SECTION 515. Waiver of Usury, Stay or Extension Laws ................................... 65
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities ....................................... 65
SECTION 602. Notice of Defaults ........................................................ 66
SECTION 603. Certain Rights of Trustee ................................................. 66
SECTION 604. Not Responsible for Recitals or
Issuance of Securities ........................................... 68
SECTION 605. May Hold Securities ....................................................... 68
SECTION 606. Money Held in Trust ....................................................... 69
SECTION 607. Compensation and Reimbursement ............................................ 69
SECTION 608. Disqualification; Conflicting Interests ................................... 70
SECTION 609. Corporate Trustee Required; Eligibility ................................... 70
SECTION 610. Resignation and Removal; Appointment
of Successor ..................................................... 70
SECTION 611. Acceptance of Appointment by Successor .................................... 72
SECTION 612. Merger, Conversion, Consolidation or
Succession to Business ........................................... 73
SECTION 613. Preferential Collection of Claims Against Company ......................... 73
SECTION 614. Appointment of Authenticating Agent ....................................... 73
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ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and
Addresses of Holders ............................................. 75
SECTION 702. Preservation of Information;
Communications to Holders ........................................ 76
SECTION 703. Reports by Trustee ........................................................ 76
SECTION 704. Reports by Company ........................................................ 77
ARTICLE EIGHT
Consolidation, Merger,
Conveyance, Transfer or Lease
SECTION 801. Merger, Consolidations and Certain
Sales of Assets .................................................. 77
SECTION 802. Successor Substituted ..................................................... 79
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent
of Holders ....................................................... 79
SECTION 902. Supplemental Indentures with Consent of
Holders .......................................................... 80
SECTION 903. Execution of Supplemental Indentures ...................................... 82
SECTION 904. Effect of Supplemental Indentures ...................................... 82
SECTION 905. Conformity with Trust Indenture Act ...................................... 82
SECTION 906. Reference in Securities to Supplemental Indentures ........................ 82
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ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and
Interest ......................................................... 83
SECTION 1002. Maintenance of Office or Agency ........................................... 83
SECTION 1003. Money for Security Payments to be Held
in Trust ......................................................... 84
SECTION 1004. Existence ................................................................. 85
SECTION 1005. Maintenance of Properties ................................................. 86
SECTION 1006. Payment of Taxes and Other Claims ......................................... 86
SECTION 1007. Maintenance of Insurance .................................................. 86
SECTION 1008. Limitation on Debt ........................................................ 87
SECTION 1009. Limitation on Preferred Stock
of Subsidiaries .................................................. 90
SECTION 1010. Limitation on Restricted Payments ......................................... 91
SECTION 1011. Limitations Concerning Distributions
By and Transfers to Subsidiaries ................................. 93
SECTION 1012. Limitation on Sale and Leaseback
Transactions ..................................................... 95
SECTION 1013. Limitation on Layered Debt of
Subsidiaries ..................................................... 95
SECTION 1014. Limitation on Liens ....................................................... 95
SECTION 1015. Limitation on Issuances and Sales
of Capital Stock of Subsidiaries ................................. 96
SECTION 1016. Transactions with Affiliates and Related Persons .......................... 96
SECTION 1017. Provision of Financial Information......................................... 97
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SECTION 1018. Asset Dispositions. ....................................................... 98
SECTION 1019. Change of Control ......................................................... 100
SECTION 1020. Statement by Officers as to Default;
Compliance Certificates .......................................... 101
SECTION 1021. Waiver of Certain Covenants ............................................... 102
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption ....................................................... 102
SECTION 1102. Applicability of Article .................................................. 103
SECTION 1103. Election to Redeem; Notice to Trustee ..................................... 103
SECTION 1104. Selection by Trustee of Securities to Be Redeemed ......................... 103
SECTION 1105. Notice of Redemption ...................................................... 104
SECTION 1106. Deposit of Redemption Price ............................................... 105
SECTION 1107. Securities Payable on Redemption Date ..................................... 105
SECTION 1108. Securities Redeemed in Part ............................................... 106
ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance
or Covenant Defeasance ........................................... 106
SECTION 1202. Defeasance and Discharge .................................................. 106
SECTION 1203. Covenant Defeasance ...................................................... 107
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SECTION 1204. Conditions to Defeasance or Covenant Defeasance ........................... 107
SECTION 1205. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions .................................... 110
SECTION 1206. Reinstatement ............................................................. 111
TESTIMONIUM ............................................................................... 111
SIGNATURES AND SEALS ...................................................................... 111
ACKNOWLEDGEMENTS .......................................................................... 112
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