EXHIBIT 4.1
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FOREST CITY ENTERPRISES, INC.
TO
THE BANK OF NEW YORK
Trustee
----------------
Indenture
Dated as of May 19, 2003
----------------
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. ..............................
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of May 19, 2003
Trust Indenture Indenture
Act Section Section
--------------- ---------
Section 310 (a)(1) .................................................. 609
(a) .................................................. 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
703
(c) .................................................. 601
(d) .................................................. 601
(e) .................................................. 514
Section 316 (a) .................................................. 000
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Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Section Section
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(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
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Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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Table of Contents
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ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions....................................................................................1
"Act"....................................................................................................2
"Affiliate"..............................................................................................2
"Applicable Procedures"..................................................................................2
"Asset Disposition"......................................................................................2
"Authenticating Agent"...................................................................................3
"Board of Directors".....................................................................................3
"Board Resolution".......................................................................................3
"Business Day"...........................................................................................3
"Capital Lease Obligation"...............................................................................3
"Capital Stock"..........................................................................................4
"Cash Equivalents".......................................................................................4
"Change of Control"......................................................................................4
"Commission".............................................................................................4
"Common Development".....................................................................................4
"Common Stock"...........................................................................................4
"Company"................................................................................................5
"Company Request" or "Company Order".....................................................................5
"Consolidated Adjusted Net Worth"........................................................................5
"Consolidated EBITDA"....................................................................................5
"Consolidated EBITDA to Interest Ratio"..................................................................5
"Consolidated Income Tax Expense"........................................................................6
"Consolidated Interest Expense"..........................................................................6
"Consolidated Net Income"................................................................................7
"Consolidated Net Worth".................................................................................8
"consolidation"..........................................................................................8
"Corporate Trust Office".................................................................................8
"corporation"............................................................................................8
"Covenant Defeasance"....................................................................................8
"Debt"...................................................................................................8
"Defeasance".............................................................................................9
"Depositary".............................................................................................9
"Development Debt".......................................................................................9
"DTC"...................................................................................................10
"Event of Default"......................................................................................10
"Excess Proceeds".......................................................................................10
"Exchange Act"..........................................................................................10
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"Expiration Date".......................................................................................10
"fair market value".....................................................................................10
"FCRPC Credit Agreement"................................................................................10
"FCRPC Guaranty"........................................................................................11
"Global Security".......................................................................................11
"guarantee".............................................................................................11
"Holder"................................................................................................11
"Incur".................................................................................................11
"Indenture".............................................................................................12
"Interest Payment Date".................................................................................12
"Interest Rate, Currency or Commodity Price Agreement"..................................................12
"Investment"............................................................................................12
"Lien"..................................................................................................13
"Material Subsidiary"...................................................................................13
"Maturity"..............................................................................................13
"Minimum Adjusted Net Worth"............................................................................13
"Net Available Proceeds"................................................................................13
"Non-Recourse"..........................................................................................14
"Notice of Default".....................................................................................14
"Offer".................................................................................................14
"Offer to Purchase".....................................................................................14
"Officers' Certificate".................................................................................17
"Opinion of Counsel"....................................................................................17
"Original Issue Discount Security"......................................................................17
"Outstanding"...........................................................................................17
"pari passu"............................................................................................19
"Paying Agent"..........................................................................................19
"Permitted Business"....................................................................................19
"Permitted Holder"......................................................................................19
"Permitted Interest Rate, Currency or Commodity Price Agreement"........................................20
"Person"................................................................................................20
"Place of Payment"......................................................................................20
"Predecessor Security"..................................................................................20
"Preferred Stock".......................................................................................21
"Public Equity Offering"................................................................................21
"Purchase Amount".......................................................................................21
"Purchase Date".........................................................................................21
"Purchase Money Debt"...................................................................................21
"Purchase Price"........................................................................................21
"Receivables"...........................................................................................21
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"Receivables Sale"......................................................................................22
"Recourse Debt".........................................................................................22
"Redeemable Stock"......................................................................................22
"Redemption Date".......................................................................................22
"Redemption Price"......................................................................................22
"Regular Record Date"...................................................................................22
"Related Person"........................................................................................22
"Responsible Officer"...................................................................................22
"Restricted Payment"....................................................................................23
"Sale and Leaseback Transaction"........................................................................23
"Securities"............................................................................................23
"Securities Act"........................................................................................23
"Securities Custodian"..................................................................................23
"Security Register" and "Security Registrar"............................................................23
"Special Record Date"...................................................................................23
"Stated Maturity".......................................................................................23
"Subordinated Debt".....................................................................................23
"Subsidiary"............................................................................................24
"Successor Company".....................................................................................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..................................................26
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.............................................................31
SECTION 107. Conflict with Trust Indenture Act.....................................................32
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(continued)
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SECTION 108. Effect of Headings and Table of Contents..............................................32
SECTION 109. Successors and Assigns................................................................32
SECTION 110. Separability Clause...................................................................32
SECTION 111. Benefits of Indenture.................................................................32
SECTION 112. Governing Law.........................................................................32
SECTION 113. Legal Holidays........................................................................33
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..................................................41
ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series..................................................42
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SECTION 302. Denominations.........................................................................46
SECTION 303. Execution, Authentication, Delivery and Dating........................................47
SECTION 304. Temporary Securities..................................................................49
SECTION 305. Registration, Registration of Transfer and Exchange...................................49
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......................................51
SECTION 307. Payment of Interest; Interest Rights Preserved........................................52
SECTION 308. Persons Deemed Owners.................................................................53
SECTION 309. Cancellation..........................................................................54
SECTION 310. Computation of Interest...............................................................54
SECTION 311. Global Securities.....................................................................54
SECTION 312. CUSIP Numbers.........................................................................55
SECTION 313. General Terms of the Securities.......................................................56
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture...............................................56
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(continued)
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SECTION 402. Application of Trust Money............................................................58
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.....................................................................58
SECTION 502. Acceleration of Maturity; Rescission and Annulment....................................62
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.......................64
SECTION 504. Trustee May File Proofs of Claim......................................................64
SECTION 505. Trustee May Enforce Claims Without Possession of Securities...........................65
SECTION 506. Application of Money Collected........................................................65
SECTION 507. Limitation on Suits...................................................................66
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest.............67
SECTION 509. Restoration of Rights and Remedies....................................................67
SECTION 510. Rights and Remedies Cumulative........................................................67
SECTION 511. Delay or Omission Not Waiver..........................................................68
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SECTION 512. Control by Holders....................................................................68
SECTION 513. Waiver of Past Defaults...............................................................68
SECTION 514. Undertaking for Costs.................................................................69
SECTION 515. Waiver of Usury, Stay or Extension Laws...............................................69
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities...................................................69
SECTION 602. Notice of Defaults....................................................................70
SECTION 603. Certain Rights of Trustee.............................................................70
SECTION 604. Not Responsible for Recitals or Issuance of Securities................................72
SECTION 605. May Hold Securities...................................................................72
SECTION 606. Money Held in Trust...................................................................72
SECTION 607. Compensation and Reimbursement........................................................73
SECTION 608. Conflicting Interests.................................................................74
SECTION 609. Corporate Trustee Required; Eligibility...............................................74
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(continued)
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SECTION 610. Resignation and Removal; Appointment of Successor.....................................74
SECTION 611. Acceptance of Appointment by Successor................................................76
SECTION 612. Merger, Conversion, Consolidation or Succession to Business...........................78
SECTION 613. Preferential Collection of Claims Against Company.....................................78
SECTION 614. Appointment of Authenticating Agent...................................................78
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.............................81
SECTION 702. Preservation of Information; Communications to Holders................................81
SECTION 703. Reports by Trustee....................................................................82
SECTION 704. Reports by Company....................................................................82
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Merger, Consolidation and Certain Sales of Assets.....................................83
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SECTION 802. Successor Substituted.................................................................84
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders....................................85
SECTION 902. Supplemental Indentures with Consent of Holders.......................................86
SECTION 903. Execution of Supplemental Indentures..................................................88
SECTION 904. Effect of Supplemental Indentures.....................................................88
SECTION 905. Conformity with Trust Indenture Act...................................................89
SECTION 906. Reference in Securities to Supplemental Indentures....................................89
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest............................................89
SECTION 1002. Maintenance of Office or Agency.......................................................89
SECTION 1003. Money for Securities Payments to be Held in Trust.....................................90
SECTION 1004. Existence.............................................................................92
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SECTION 1005. Maintenance of Properties.............................................................92
SECTION 1006. Payment of Taxes and Other Claims.....................................................92
SECTION 1007. Maintenance of Insurance..............................................................93
SECTION 1008. Limitation on Debt....................................................................93
SECTION 1009. Limitation on Preferred Stock of Subsidiaries.........................................96
SECTION 1010. Limitation on Restricted Payments.....................................................96
SECTION 1011. Limitations Concerning Distributions By and Transfers to Subsidiaries.................99
SECTION 1012. Limitation on Sale and Leaseback Transactions........................................100
SECTION 1013. Limitation on Layered Debt of Subsidiaries...........................................101
SECTION 1014. Limitation on Liens..................................................................101
SECTION 1015. Limitation on Issuances and Sales of Capital Stock of Subsidiaries...................101
SECTION 1016. Transactions with Affiliates and Related Persons.....................................102
SECTION 1017. Provision of Financial Information...................................................102
SECTION 1018. Asset Dispositions...................................................................103
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SECTION 1019. Change of Control....................................................................105
SECTION 1020. Statement by Officers as to Default; Compliance Certificates.........................106
SECTION 1021. Waiver of Certain Covenants..........................................................107
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption..................................................................107
SECTION 1102. Applicability of Article.............................................................108
SECTION 1103. Election to Redeem; Notice to Trustee................................................108
SECTION 1104. Selection by Trustee of Securities to Be Redeemed....................................109
SECTION 1105. Notice of Redemption.................................................................109
SECTION 1106. Deposit of Redemption Price..........................................................111
SECTION 1107. Securities Payable on Redemption Date................................................111
SECTION 1108. Securities Redeemed in Part..........................................................111
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ARTICLE TWELVE
Defeasance and Covenant Defeasance
SECTION 1201. Company's Option to Effect Defeasance or Covenant Defeasance.........................112
SECTION 1202. Defeasance and Discharge.............................................................112
SECTION 1203. Covenant Defeasance..................................................................113
SECTION 1204. Conditions to Defeasance or Covenant Defeasance......................................113
SECTION 1205. Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.............................................................116
SECTION 1206. Reinstatement........................................................................116
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INDENTURE, dated as of May 19, 2003, 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 execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
senior notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided for in this
Indenture.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with 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 or of a
series thereof, 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:
(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
hereof;
(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 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 by 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
-2-
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 614 hereof to act on behalf of the Trustee to
authenticate Securities of one or more series.
"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", when used with respect to any Place of Payment
or for any other purpose, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment
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 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.
-3-
"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 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.
-4-
"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 January 31, 2003
and (ii) the consolidated depreciation and amortization expense of the Company
for the period from February 1, 2003 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 interest expense in determining Consolidated Interest Expense for such
period, plus (iii) Consolidated Income Tax Expense of such Person for such
period (after deducting the portion of such Consolidated Income Tax Expense, if
any, included in Consolidated Net Income of such Person for such period pursuant
to clause (h) of the definition of Consolidated Net Income), 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 (a) Consolidated EBITDA of such Person for
such period to (b) Consolidated Interest Expense of such Person for such period.
In making the foregoing calculation, (i) 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,
-5-
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; (ii)
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, Currency or Commodity Price Agreement applicable to such Debt if
such Permitted Interest Rate, Currency or Commodity 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; (iii) there shall
be excluded from Consolidated Interest Expense an amount equal to the portion of
Consolidated Interest Expense, if any, 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 (iv) 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.
"Consolidated Interest Expense" of any Person means for any
period the consolidated interest expense as set forth on a consolidated income
statement of such Person and its Subsidiaries for such period (after deducting
(i) any consolidated interest income and (ii) 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), (A) the amortization of Debt
discounts; (B) any payments or fees with respect to letters of credit, bankers'
acceptances or similar facilities; (C) fees with respect to Interest Rate,
Currency or Commodity Price Agreements; (D) Preferred Stock dividends of the
-6-
Company and its Subsidiaries (other than with respect to Redeemable Stock)
declared, whether paid or payable, in such period, (E) accrued Redeemable Stock
dividends of the Company and its Subsidiaries, whether or not declared or paid;
(F) interest on Debt guaranteed by such Person or any of its Subsidiaries; (G)
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 (H) the portion of any 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 (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, (b) the equity in earnings of
unconsolidated entities of such Person except to the extent of the aggregate
amount of dividends or other distributions actually paid to such Person by such
other Person during such period; provided, however, that such aggregate amount
may not exceed the equity in earnings of unconsolidated entities of such Person;
(c) gains or losses on disposition of properties by such Person and its
Subsidiaries as set forth on an income statement of such Person prepared in
accordance with generally accepted accounting principles; (d) the cumulative
effect of changes in accounting principles in the year of adoption of such
changes; (e) all extraordinary items of such Person and its Subsidiaries as set
forth on an income statement of such Person prepared in accordance with
generally accepted accounting principles; (f) all gains and losses from the
early retirement or extinguishment of Debt; (g) all gains or losses of such
Person and its Subsidiaries resulting from the disposal of a segment of a
business of such Person determined in each case in accordance with Accounting
Principles Board Opinion No. 30 as set forth on an income statement of such
Person prepared in accordance with generally accepted accounting principles;
provided, however, that such gains and losses shall be excluded only to the
extent such items are not included within extraordinary gains or
-7-
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
disposal occurred, (h) the tax effect of any of the items described in clauses
(a) through (g) above and clause (i) below; and (i) 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.
"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.
"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.
"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.
"Covenant Defeasance" has the meaning specified in Section
1203.
"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
-8-
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 (including, if applicable, the full
payment obligation of that Person at expiry of the lease arrangement assuming no
refinancing or third party sale), (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 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.
"Defeasance" has the meaning specified in Section 1202.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global Securities, 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
-9-
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.
"Event of Default" has the meaning specified in Section 501.
"Excess Proceeds" has the meaning specified in Section 1018.
"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 March 5, 2002, as amended as of May 9, 2003, among Forest City Rental
Properties Corporation, an Ohio corporation, as Borrower, various lending
institutions named therein, Keybank
-10-
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 of Payment of Debt, dated
as of March 5, 2002, as amended as of May 9, 2003 and as further supplemented by
a letter agreement dated as of May 16, 2003, by the Company of the obligations
under the 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 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
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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" 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.
The term "Indenture" shall also include the terms of particular series of
Securities established as contemplated by Section 301.
"Interest Payment Date", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"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 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.
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"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.
"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 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) $900 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 $675 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
February 1, 2003 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
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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 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.
"Notice of Default" means a written notice of the kind
specified in Section 501(4).
"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
-14-
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 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
-15-
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;
(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,
a 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
-16-
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 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.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to any Securities,
means, as of the date of determination, all Securities theretofore authenticated
and delivered under this Indenture, except:
-17-
(1) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) 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 has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(3) Securities as to which Defeasance has been effected
pursuant to Section 1202 hereof; and
(4) 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, made or taken any
request, demand, authorization, direction, notice, consent or waiver hereunder,
as of any date, (A) the principal amount of an Original Issue Discount Security
which shall be deemed to be Outstanding shall be the amount of the principal
thereof which would be due and payable as of such date upon acceleration of the
Maturity thereof to such date pursuant to Section 502, (B) if, as of such date,
the principal amount payable at the Stated Maturity of a Security is not
determinable, the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as contemplated by
Section 301, (C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as
-18-
of such date in the manner provided as contemplated by Section 301, of the
principal amount of such Security (or, in the case of a Security described in
clause (A) or (B) above, of the amount determined as provided in such clause),
and (D) 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.
"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, (iv) the lumber wholesaling business, (v) developing,
acquiring, owning and operating any real estate not otherwise provided for in
clauses (i) through (iii) above; and (vi) any business reasonably related,
ancillary or complementary to the businesses described in clauses (i), (ii),
(iii) and (v) above, or any reasonable extensions of the businesses described in
clauses (i), (ii), (iii) and (v) above.
"Permitted Holder" means (i) any of Xxxxxx X. Xxxxxx, Xxxxxx
X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X.
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Xxxxxx 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 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.
"Place of Payment", when used with respect to the Securities
of any series, means the place or places where the principal of and any premium
on the Securities of that series are payable as specified as contemplated by
Section 301.
"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
-20-
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.
"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, i.e., property the cost of which is or will be
included in "Total Real Estate" on a consolidated balance sheet of such Person)
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, (ii) such purchase price or cost is not at incurrence, and will
not be, included in "Total Real Estate" on a consolidated balance sheet of such
Person and (iii) 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 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.
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"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 on or prior to the date that is 91 days after the final Stated
Maturity of the Securities of any series.
"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 on the Securities of any series, means the date specified
for that purpose as contemplated by Section 301.
"Related Person" of any Person means, without limitation, any
other Person directly or indirectly owning (i) 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 (ii) 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,
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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" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Securities Act" refers to the Securities Act of 1933 as it
may be amended from time to time and any successor act thereto.
"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.
"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
-23-
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 to Section
1019 hereof).
"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
-24-
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.
"Successor Company" has the meaning specified in Section 801.
"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 or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"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) 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
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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 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.
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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.
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
-27-
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 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
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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 of any series
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 of the relevant series 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 of such
series 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 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 of the relevant series 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 of any series 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, in each case with respect to Securities of such
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series. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of such series 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 of such series 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 of the relevant
series 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 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 of the relevant series 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.
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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.
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
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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.
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.
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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 at
any Place of Payment, 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 at such Place of Payment on such date, but may be made
on the next succeeding Business Day at any Place of Payment 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 at such Place of Payment, 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 of each series shall be in substantially the
form set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case 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 Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, 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.
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 ____ and to pay
interest thereon from ____ or from the most recent Interest Payment Date to
which interest has been paid or duly provided
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for, semi-annually on ____ and ____ in each year, commencing ____, at the rate
of ____% per annum, until the principal hereof is paid or made available for
payment, provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of __% per annum (to
the extent that the payment of such interest shall be legally enforceable), from
the dates such amounts are due until they are paid or made available for
payment, and such interest shall be payable on demand. The interest so payable,
and punctually paid or duly provided for, on any Interest 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 ____ or ____
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for 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 of this series
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 of this series 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.
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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.
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 (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of May 19, 2003 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture 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. This
security is one of the series designated on the face hereof [limited in
aggregate principal amount to $_______].
The Securities of this series are subject to redemption upon
not less than 30 nor more than 60 days' notice by mail, at any time on or after
____, 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 ____ of each of the years
indicated,
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Redemption
Year Price
---- ----------
___ ___%
___ ___%
___ ___%
___ and 100%
thereafter
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 installments 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 of this series will also be subject to
redemption, at the option of the Company, prior to ___, in the event that on or
before ___, 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 ___% of the original principal amount of the
Securities of this series; provided, however, that Securities of this series in
an aggregate principal amount equal to at least ___% of the original principal
amount of the Securities of this series 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
installments 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.
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
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Control occurs, the Company shall be required to make an Offer to Purchase for
all or a specified portion of the Securities of this series.
In the event of redemption or purchase pursuant to an Offer to
Purchase of this Security in part only, a new Security or Securities of this
series and of like tenor 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 with respect to Securities of this
series shall occur and be continuing, the principal of all the Securities of
this series 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 of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in aggregate principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all the Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this 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 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 of this series, the Holders of not
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less than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this 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
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series 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 of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor 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
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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.
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.)
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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
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.
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ARTICLE THREE
The Securities
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, or pursuant to
authority granted by one or more Board Resolutions, and, subject to Section 303,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series, including CUSIP
Numbers (which shall distinguish the Securities of the series from
Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1108,
1018 or 1019 and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities
of the series is payable;
(5) the rate or rates at which any Securities of the series
shall bear interest, if
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any, the date or dates from which any such interest shall accrue, or
the method or methods, if any, by which such date or dates shall be
determined, the Interest Payment Dates, if any, on which any such
interest shall be payable and the Regular Record Date, if any, for any
such interest payable on any Interest Payment Date;
(6) if other than as set forth in Article 313, the place or
places where the principal of, and any premium and interest on, any
Securities of the series shall be payable;
(7) the time on or after which the Securities of the series
may be redeemed at the election of the Company pursuant to clause (a)
of Article 1101, the time prior to which the Securities of the series
may be redeemed at the election of the Company pursuant to clause (b)
of Article 1101, in each case, the Redemption Prices therefor, the
maximum percentage of the original principal amount of the Securities
of the series that may be redeemed in connection with any one
redemption pursuant to clause (b) of Article 1101 and the percentage of
the original aggregate principal amount of Securities of the series
that must remain outstanding after giving effect to a redemption
pursuant to clause (b) of Article 1101; or, that the provisions of
Article 1101 do not apply to the series; or, if other than as set forth
in Article 1101, the period or periods within which, the price or
prices at which and the terms and conditions upon which any Securities
of the series may be redeemed, in whole or in part, at the option of
the Company and, if other than by a Board Resolution, the manner in
which any election by the Company to redeem the Securities shall be
evidenced;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the
series shall be issuable;
(9) if the amount of principal of or any premium or interest
on any Securities of the series may be determined with reference to an
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index or pursuant to a formula, the manner in which such amounts shall
be determined;
(10) if other than the currency of the United States of
America, the currency, currencies or currency units in which the
principal of, or any premium or interest on, any Securities of the
series shall be payable and the manner of determining the equivalent
thereof in the currency of the United States of America for any
purpose, including for purposes of the definition of "Outstanding" in
Section 101;
(11) if the principal of, or any premium or interest on, any
Securities of the series is to be payable, at the election of the
Company or the Holder thereof, in one or more currencies or currency
units other than that or those in which such Securities are stated to
be payable, the currency, currencies or currency units in which the
principal of, or any premium or interest on, such Securities as to
which such election is made shall be payable, the periods within which
and the terms and conditions upon which such election is to be made and
the amount so payable (or the manner in which such amount shall be
determined);
(12) if other than the entire principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502, or the method by which such portion is
to be determined;
(13) if the principal amount payable at the Stated Maturity of
any Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding as
of any date prior to the Stated Maturity (or, in any such case, the
manner in
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which such amount deemed to be the principal amount shall be
determined);
(14) if other than as set forth in Section 313, that the
Securities of the series, in whole or any specified part, shall be
defeasible pursuant to Section 1202 or Section 1203 or both such
Sections and, if other than by a Board Resolution, the manner in which
any election by the Company to defease such Securities shall be
evidenced;
(15) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global
Securities and, in such case, the respective Depositaries for such
Global Securities (if other than as set forth in Section 311), the form
of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 205 and
any circumstances in addition to or in lieu of those set forth in
Clause (b) of Section 311 in which any such Global Security may be
exchanged in whole or in part for Securities registered, and any
transfer of such Global Security in whole or in part may be registered,
in the name or names of Persons other than the Depositary for such
Global Security or a nominee thereof;
(16) any addition to, deletion from or other change in the
Events of Default which applies to any Securities of the series and any
change in the right of the Trustee or the requisite Holders of such
Securities to declare the principal amount thereof due and payable
pursuant to Section 502;
(17) any addition to, deletion from or other change in the
covenants set forth in Article Ten which applies to Securities of the
series; and
(18) any other terms of the series and any addition to,
deletion from or other change in the Indenture in respect of each
series (which terms shall not be inconsistent with the provisions of
this Indenture, except as permitted by Section 901(5)).
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All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
303) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time, and unless
otherwise so provided by the Company, a series may be reopened for issuance of
addition Securities of such series.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series.
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.
SECTION 302. Denominations.
The Securities of each series shall be issuable only in
registered form without coupons and only in such denominations as shall be
specified as contemplated by Section 301. In the absence of any such specified
denomination with
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respect to the Securities of any series, the Securities of such series shall be
issuable 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 of any series
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. If the form or terms of the Securities of the series have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating,
(1) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(2) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
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(3) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon original issuance of the
first Security of such series to be issued.
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, 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. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be deemed never to
have been authenticated and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
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SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any
series, 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 of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
like tenor and aggregate principal amount. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
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 of the Company in a Place of Payment 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 of any series and of transfers of Securities
of any series. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security of
a series at the office or agency of the Company in a
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Place of Payment for that series, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series of any authorized
denominations and of like tenor and 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.
If the Securities of any series (or of any series and
specified tenor) are to be redeemed in part, the Company shall not be required
(A) to issue, register the transfer of or exchange any Securities of that series
(or of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of any such Securities selected for redemption under
Section 1104 and ending at the close of business on the day of such mailing, or
(B) to register the
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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 the same series 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 the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any 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 of such
series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301
with respect to any series of Securities, interest on any Security of any series
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 of any series 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 of such series
(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 of such series 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 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
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the Special Record Date therefor to be given to each Holder of
Securities of such series in the manner set forth in Section 106, 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 of such series (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 on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such 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.
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) any 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.
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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 may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
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.
The following provisions shall apply only to 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 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
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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.
SECTION 312. CUSIP Numbers.
The Company, in issuing the Securities of any series, 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 of such series
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 of such
series, 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.
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SECTION 313. General Terms of the Securities.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, 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 for that relevant
series.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the Securities shall be subject to repurchase by
the Company pursuant to an Offer to Purchase as provided in Sections 1018 and
1019.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the Securities shall be redeemable as provided in
Article Eleven.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the Securities shall be defeasible pursuant to
Sections 1202 and 1203.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of
further effect with respect to any series of Securities specified in such
Company Request (except as to any surviving rights of registration of transfer
or exchange of Securities herein expressly provided for), and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all 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)
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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
(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, money in 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
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satisfaction and discharge of this Indenture have been complied with.
In the event there are Securities of two or more series
hereunder, the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture with respect to any series only (i)
if request to do so, (ii) with respect to Securities of such series as to which
it is Trustee and (iii) if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this
Indenture with respect to any series of securities 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 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 such satisfaction and discharge.
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 with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(2) default in the payment of any interest upon any Security
of that series 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 covenant or
agreement a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), 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 of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(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 (including a default with respect to Securities of any
series other than that series) 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
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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 at maturity or by
acceleration; 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 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
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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
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
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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; or
(10) any other Event of Default provided with respect to
Securities of that series.
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) with respect to Securities of any
series at the time Outstanding and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) 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 amount or specified
amount and any accrued interest shall become immediately due and payable. If an
Event of Default specified in Section 501(8) or (9) with respect to the
Securities of any series at the time Outstanding occurs, the principal amount of
(or, if any Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be specified by
the terms thereof) and any accrued interest on all the Securities of that series
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.
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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 of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration (including any Securities
required to have been purchased on the Purchase Date pursuant
to an Offer to Purchase made by the Company) and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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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 interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of 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
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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.
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
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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.
THIRD: To the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to it, acting in a commercially
reasonable manner, against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
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 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
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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
Securities 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.
SECTION 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee; or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series, provided that
(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 of any series may, on behalf of the Holders
of all the Securities of such series, 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 of such series (including any Security of such
series 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
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modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. 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
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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, 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.
If a default occurs hereunder with respect to Securities of
any series, the Trustee shall give the Holders of Securities of such series
notice of such default 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) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be fully
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 (whether in original or
facsimile form) 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 shall be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable
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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;
(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 of Securities of any series pursuant
to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to it, acting in
a commercially reasonable manner, 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 at the expense of the Company and shall incur no liability of
any kind by reason of such inquiry or investigation;
(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
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the part of any agent or attorney appointed with due care by it
hereunder;
(h) 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; and
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and 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 neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. Neither the Trustee nor any Authenticating
Agent makes any representations as to the validity or sufficiency of this
Indenture or of the Securities. Neither the Trustee nor any Authenticating Agent
shall 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 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
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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 shall be caused by its own 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
out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(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.
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The provisions of this Section shall survive the termination
of this Indenture and resignation or removal of the Trustee.
SECTION 608. 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. To
the extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee both under the Indenture and
under that certain Indenture, dated as of March 16, 1998, between the Company
and The Bank of New York.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee
hereunder with respect to the Securities of each series which may be Trustee
hereunder for Securities of one or more other series. Each Trustee 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 any
such Person publishes reports of condition at least annually, pursuant to law or
to the requirements of its supervising or examining authority, then for the
purposes of this Section and to the extent permitted by the Trust Indenture Act,
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 with respect to the Securities of any
series 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 in
accordance with the requirements of Section 611.
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(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of 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 with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If an instrument of acceptance by a successor Trustee required by
Section 611 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 with respect to the Securities of such
series.
(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 with respect to all Securities, 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 with
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respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the successor Trustee with respect to
the Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting
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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.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
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successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the first or second preceding paragraph, as the case may be.
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 with
respect to one or more series of Securities which shall be authorized to act on
behalf of the Trustee to
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authenticate Securities of such series issued upon original issue and upon
exchange, registration of transfer or partial redemption thereof or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the 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
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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 give
notice of such appointment in the manner provided in Section 106 to all Holders
of Securities of the series with respect to which such Authenticating Agent will
serve. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series 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 of the series designated therein
referred to 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 later than September 15 and March 15 in
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities of each series
as of the preceding September 1 or March 1, as the case may be, 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.
(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
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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 (60) 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 (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
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ARTICLE Eight
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Merger, Consolidation 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);
(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
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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;
and
(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 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.
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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 of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such additional
Events of Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of
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one or more series of Securities, provided that any such addition,
change or elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (ii) modify
the rights of the Holder of any such Security with respect to such
provision or (B) shall become effective only when there is no such
Security Outstanding; or
(6) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611; or
(8) to secure the Securities pursuant to the requirements of
Section 1014 or otherwise; or
(9) 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
(10) 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 this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action pursuant to
this clause (10) shall not adversely affect the interests of the
Holders of Securities of any series 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
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Securities of each series affected by such supplemental indenture, 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 of Securities of such
series 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
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
thereon, or reduce the amount of the principal of an Original Issue
Discount Security or any other Security which would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502, or change any 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 of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(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
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certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1021, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(7).
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders 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 provided
with, 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 theretofor 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 of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each
series of Securities of that series that it 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 each Place of Payment for any
series of Securities, an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series 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 and demands may be made or served at the
Corporate Trust Office of the Trustee,
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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 where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series, for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent
with respect to any series of Securities, 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 of that series, 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 for
any series of Securities, it will, prior to each due date of the principal of
(or premium, if any) or interest on any Securities of that series, 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 for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any)
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or interest on Securities of such series in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and otherwise
comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (or 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 (or
premium, if any) or interest on any Security of any Series 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 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
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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 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.
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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 $350 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 $350
million; provided that such refinancing or refunding Debt does not have
a 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 (other than Debt described in another clause of this
paragraph) outstanding on the date of original
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issuance of the Securities after giving effect to the application of
the proceeds of the Securities;
(iv) 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 (iv) 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;
(v) 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 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 limitations set forth in
the first paragraph of this covenant;
(vi) 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
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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;
(vii) Debt Incurred by the Company or any of its Subsidiaries
consisting of Permitted Interest Rate, Currency or Commodity Price
Agreements;
(viii) 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), (v) or (vi) 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, (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 (viii) may not be
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Incurred more than 45 days prior to the application of the proceeds to
repay the Debt to be refinanced; and
(ix) Debt Incurred by the Company or any Subsidiary of the Company
not otherwise permitted to be Incurred pursuant to clauses (i) through
(viii) above, which, together with any other outstanding Debt Incurred
pursuant to this clause (ix), 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 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
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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 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 January 31, 2003 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 January 31, 2003 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
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included in such Consolidated Net Income or that was capitalized and included on
the consolidated balance sheet of the Company and its Subsidiaries since January
31, 2003; plus (b) 100% of the aggregate net proceeds received by the Company
after the date of original issuance of the first series of 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 first
series of Securities, 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)
$30 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 (viii) 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
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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.
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 first series
of 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,
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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 $5.0 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 any
other amount 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 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
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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 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
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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.
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
Directors 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
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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 if the Company were so required. The
Company shall also in any event within 15 days of each Required Filing Date (a)
upon the written request of any Holder transmit by mail to such Holder, as their
name(s) and address(es) appear in the Security Register, without cost to such
Holders, and (b) 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.
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
sentence of this Section 1018, but shall otherwise be subject to all
requirements of this covenant.
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(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
of each series entitled to the benefit of this Section 1018 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
Excess 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 of
all series entitled to the benefit of this Section 1018 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 of each series entitled to the benefit of this Section
1018 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 Purchase Amount, (ii) 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
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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 of each series
entitled to the benefit of this Section 1019 at a purchase price equal to 101%
of their principal amount plus accrued interest to the Purchase Date (provided,
however, that installments 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 of each series entitled to the benefit of this Section 1019 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. A "Change of Control" will be deemed to have occurred
at such time
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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.
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
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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 with
respect to any series or an event which, with notice or the lapse of time or
both, would constitute an Event of Default with respect to such series, 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.
Except as otherwise specified by Section 301 for Securities of
such series, the Company may, with respect to the Securities of any series, omit
in any particular instance to comply with any term, provision or condition set
forth in any covenant provided pursuant to Section 301(18), 901(2) or 901(5) for
the benefit of the Holders of such series or in any of 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 of such
series shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such covenant or condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
Except as otherwise specified as contemplated by Section 301
for Securities of any series, the Securities of any series 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 a date specified as contemplated in Section 301, at the
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Redemption Prices specified as contemplated in Section 301 and (b) at any time
prior to a date specified as contemplated in Section 301, from the net proceeds
of a Public Equity Offering, at the Redemption Price specified as contemplated
in Section 301, 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 the specified
percentage as contemplated in Section 301 of the original principal amount of
the Securities of such series in connection with any one redemption and that,
after giving effect to any such redemption, Securities of such series in at
least an aggregate principal amount equal to the percentages of the original
principal amount of the Securities of that series specified as contemplated in
Section 301 remain Outstanding.
SECTION 1102. Applicability of Article.
Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 301 for such Securities) in
accordance with this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 1101 or otherwise shall be evidenced by a Board Resolution or in
another manner specified as contemplated by Section 301 for such Securities. In
case of any redemption at the election of the Company of all or less than all
the Securities of any series (including any such redemption affecting only a
single Security), 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 of such series to be redeemed and, if applicable, of the tenor of
the Securities to be redeemed. In the case of any redemption at the election of
the Company pursuant to clause (b) of Section 1101, 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. In addition, in the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such
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Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction.
SECTION 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all the Securities of such series and of a specified tenor are
to be redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by lot or by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of a portion of the principal amount of any Security of
such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption as aforesaid and, in case of any
Securities selected for partial redemption as aforesaid, 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.
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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 of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal
amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) if applicable, 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 in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder 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.
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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 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, unless
otherwise specified as contemplated by Section 301, installments 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 prescribed
therefor in the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his 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 the same series and of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
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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 elect, at its option at any time, to have
Section 1202 or Section 1203 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 301 or 313 as
being defeasible pursuant to such Section 1202 or 1203, in accordance with any
applicable requirements provided pursuant to Section 301 and upon compliance
with the conditions set forth below in this Article. Any such election shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities.
SECTION 1202. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its obligations
with respect to such Securities as provided in this Section on and after the
date the conditions set forth in Section 1204 are satisfied (hereinafter,
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
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 (if any) to have this
Section 1202 applied to any Securities notwithstanding the prior
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exercise of its option (if any) to have Section 1203 applied to such Securities.
SECTION 1203. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have
this Section applied to any Securities or any series of Securities, as the case
may be, (i) the Company shall be released from its obligations under Sections
1005 through 1017, inclusive, clauses (iii), (iv) and (v) of Section 801 and any
covenants provided pursuant to Section 301(18), 901(2) or 901(6) for the benefit
of the Holders of such Securities, (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(4)
(with respect to any such covenants provided pursuant to Section 301(18), 901(2)
or 901(5)), 501(6) and 501(7) shall not be deemed to be an Event of Default, in
each case with respect to such Securities as provided in this Section, on and
after the date the conditions set forth in Section 1204 are satisfied
(hereinafter, "Covenant Defeasance"). For this purpose, such Covenant Defeasance
means that, with respect to such Securities, 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 specified Section (to the extent so specified in the case of
Section 501(4)), 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 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 any Securities or any series of 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
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(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, in each case
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 installment of
interest on such Securities on the respective Stated Maturities in
accordance with the terms of this Indenture and of such Securities.
(2) In the case of an election to have Section 1202 apply to
the Securities or any series of Securities, as the case may be, 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 has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion shall confirm that, the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a
result of the deposit, Defeasance and discharge to be effected with
respect to such Securities 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 to have Section 1203 apply to
the Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be
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effected with respect to such Securities 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 neither such Securities nor
any other Securities of the same series, if then listed on any
securities exchange, will 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, with respect to such
Securities or any other series of Securities, 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 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
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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, and
solely for purposes of this Section 1205, the "Trustee") pursuant to Section
1204 in respect of the Securities of any series 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 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
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and such Securities from which the Company has been discharged or released
pursuant to Section 1202 or 1203 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 such Security following
the reinstatement of its obligations, the Company shall be subrogated to the
rights, if any, 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 /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Attest:
/s/ Xxxxxxx X. Xxxxxx
--------------------------
THE BANK OF NEW YORK,
as Trustee
By /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
Vice President
Attest:
/s/ Xxxxxxxx Salleyhm
---------------------------
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STATE OF OHIO ) ss.:
COUNTY OF CUYAHOGA )
On the 15th day of May, 2003, before me personally came Xxxxxx
X. Xxxxx, to me known, who, being by me duly sworn, did depose and say that he
is Executive Vice President, CFO and Secretary 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.
/s/ Xxxxx X. Xxxxxxxx
------------------------------
Xxxxx X. Xxxxxxxx, Notary Public
State of Ohio
STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the 19th day of May, 2003, before me personally came
Xxxxxxx Xxxxxx, to me known, who, being by me duly sworn, did depose and say
that [he -- she] is Vice President 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.
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Notary Public, State of New York
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