EXHIBIT 99.1
TANGER PROPERTIES LIMITED PARTNERSHIP,
ISSUER
and
TANGER FACTORY OUTLET CENTERS, INC.,
GUARANTOR
to
STATE STREET BANK and TRUST COMPANY,
TRUSTEE
------------------------
SENIOR INDENTURE
------------------------
Dated as of March 1, 1996
Senior Debt Securities
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
Trust Indenture
Act Section Indenture
Section
ss.310(a)(1)........................................................607
(a)(2).............................................................607
(b)................................................................608
ss.312(a)...........................................................701
(b)................................................................702
(c)................................................................702
ss.313(a)...........................................................703
(b)(2).............................................................703
(c)................................................................703
(d)................................................................703
ss.314(a)...........................................................704
(c)(1).............................................................102
(c)(2).............................................................102
(e)................................................................102
(f)................................................................102
ss.316(a) (last sentence)...........................................101
(a)(1)(A).....................................................502, 512
(a)(1)(B)..........................................................513
(b)................................................................508
ss.317(a)(1)........................................................503
(a)(2).............................................................504
(b)...............................................................1003
ss.318(a)...........................................................108
-------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture
Act, which provides that the provisions of Sections 310 to and including
317 are a part of and govern every qualified indenture, whether or not
physically contained herein.
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TABLE OF CONTENTS
Recitals............................................................ 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions........................................... 2
Act 2
Additional Amounts 2
Adjusted Total Assets 2
Affiliate 2
Annual Service Charge 3
Authenticating Agent 3
Authorized Newspaper 3
Bearer Security 3
Board of Directors 3
Board Resolution 3
Business Day 3
Capital Stock 3
Code 4
Commission 4
Consolidated Income Available for Debt Service 4
Consolidated Net Income 4
Conversion Event 4
Corporate Trust Office 4
Corporation 4
Coupon 4
Currency 5
CUSIP number 5
Defaulted Interest 5
Dollars or $ 5
ECU 5
European Monetary System 5
European Union 5
Event of Default 5
Foreign Currency 5
Funds from Operations 5
GAAP 5
General Partner 5
Government Obligations 6
Guarantee 6
Guaranteed Securities 6
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Guarantor 6
Guarantor's Board of Directors 6
Guarantor's Board Resolution 6
Guarantor's Officers' Certificate 6
Guarantor Request and Guarantor Order 7
Holder 7
Indebtedness 7
Indenture 7
Independent Public Accountants 7
Indexed Security 7
Interest 7
Interest Payment Date 8
Issuer 8
Issuer Request and Issuer Order 8
Judgment Currency 8
Legal Holiday 8
Maturity 8
Net Cash Proceeds 8
New York Banking Day 8
Office or Agency 8
Officers' Certificate 9
Opinion of Counsel 9
Original Issue Discount Security 9
Outstanding 9
PAYING AGENT 10
Permitted Indebtedness 10
Person 11
Place of Payment 11
Predecessor Security 11
Redemption Date 11
Redemption Price 11
Registered Security 11
Regular Record Date 11
Required Currency 11
Responsible Officer 11
Secured Indebtedness 11
Security or Securities 11
Security Register and Security Xxxxxxxxx 00
Significant Subsidiary 12
Special Record Date 12
Stated Maturity 12
Subsidiary 12
Total Assets 12
Trust Indenture Act 12
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Trustee 12
Undepreciated Real Estate Assets 00
Xxxxxx Xxxxxx 00
Xxxxxx Xxxxxx Alien 13
U.S. Depository or Depository 13
Vice President 13
Voting Stock 13
Section 102. Compliance Certificates and Opinions................... 13
Section 103. Form of Documents Delivered to Trustee................. 14
Section 104. Acts of Holders........................................ 14
Section 105. Notices, etc., to Trustee and Issuer and Guarantor..... 16
Section 106. Notice to Holders of Securities; Waiver................ 17
Section 107. Language of Notices.................................... 18
Section 108. Conflict with Trust Indenture Act...................... 18
Section 109. Effect of Headings and Table of Contents............... 18
Section 110. Successors and Assigns................................. 18
Section 111. Separability Clause.................................... 18
Section 112. Benefits of Indenture.................................. 18
Section 113. Governing Law.......................................... 19
Section 114. Legal Holidays......................................... 19
Section 115. Counterparts........................................... 19
Section 116. Judgment Currency...................................... 19
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally........................................ 20
Section 202. Form of Trustee's Certificate of Authentication........ 20
Section 203. Securities in Global Form.............................. 21
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series................... 22
Section 302. Currency; Denominations................................ 26
Section 303. Execution, Authentication, Delivery and Dating......... 26
Section 304. Temporary Securities................................... 29
Section 305. Registration, Transfer and Exchange.................... 29
Section 306. Mutilated, Destroyed, Lost and Stolen Securities....... 33
Section 307. Payment of Interest and Certain Additional
Amounts; Rights to Interest and Certain
Additional Amounts Preserved........................... 34
Section 308. Persons Deemed Owners.................................. 36
5
Section 309. Cancellation........................................... 37
Section 310. Computation of Interest................................ 37
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge............................. 37
Section 402. Defeasance and Covenant Defeasance..................... 39
Section 403. Application of Trust Money............................. 44
ARTICLE FIVE
REMEDIES
Section 501. Events of Default...................................... 44
Section 502. Acceleration of Maturity; Rescission and Annulment..... 46
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee............................................. 47
Section 504. Trustee May File Proofs of Claim....................... 48
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.................................. 49
Section 506. Application of Money Collected......................... 50
Section 507. Limitations on Suits................................... 50
Section 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and Additional
Amounts................................................ 51
Section 509. Restoration of Rights and Remedies..................... 51
Section 510. Rights and Remedies Cumulative......................... 51
Section 511. Delay or Omission Not Waiver........................... 52
Section 512. Control by Holders of Securities....................... 52
Section 513. Waiver of Past Defaults................................ 52
Section 514. Waiver of Stay or Extension Laws....................... 53
Section 515. Undertaking for Costs.................................. 53
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.............................. 53
Section 602. Notice of Defaults..................................... 55
Section 603. Not Responsible for Recitals or Issuance of
Securities............................................. 55
Section 604. May Hold Securities.................................... 55
Section 605. Money Held in Trust.................................... 56
Section 606. Compensation and Reimbursement......................... 56
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Section 607. Corporate Trustee Required; Eligibility................ 57
Section 608. Resignation and Removal; Appointment of Successor...... 57
Section 609. Acceptance of Appointment by Successor................. 59
Section 610. Merger, Conversion, Consolidation or Succession to
Business............................................... 60
Section 611. Appointment of Authenticating Agent.................... 60
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
Section 701. Issuer and the Guarantor to Furnish Trustee Names
and Addresses of Holders............................... 62
Section 702. Preservation of Information; Communications to
Holders................................................ 63
Section 703. Reports by Trustee..................................... 63
Section 704. Reports by Issuer and Guarantor........................ 63
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE
Section 801. Issuer May Consolidate, etc., Only on Certain Terms.... 64
Section 802. Successor Person Substituted for Issuer................ 65
Section 803. Guarantor May Consolidate, etc., Only on Certain
Terms.................................................. 65
Section 804. Successor Person Substituted for Guarantor............. 66
Section 805. Assumption by Guarantor................................ 66
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders..... 67
Section 902. Supplemental Indentures with Consent of Holders........ 68
Section 903. Execution of Supplemental Indentures................... 69
Section 904. Effect of Supplemental Indentures...................... 70
Section 905. Reference in Securities to Supplemental Indentures..... 70
Section 906. Conformity with Trust Indenture Act.................... 70
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest
and Additional Amounts................................ 70
Section 1002. Maintenance of Office or Agency....................... 71
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Section 1003. Money for Securities Payments to Be Held in Trust..... 72
Section 1004. Additional Amounts.................................... 74
Section 1005. Maintenance of Properties............................. 74
Section 1006. Insurance............................................. 75
Section 1007. Corporate Existence .................................. 75
Section 1008. Payment of Taxes and Other Claims..................... 75
Section 1009. Provision of Financial Information.................... 76
Section 1010. Limitations on Incurrence of Indebtedness............. 76
Section 1011. Restrictions on Dividends and Other Distributions..... 77
Section 1012. Waiver of Certain Covenants........................... 78
Section 1013. Issuer Statement as to Compliance; Notice of
Certain Defaults...................................... 78
Section 1014. Guarantor Statement as to Compliance; Notice
of Certain Defaults................................... 79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article............................. 79
Section 1102. Election to Redeem; Notice to Trustee................ 79
Section 1103. Selection by Trustee of Securities to Be Redeemed.... 80
Section 1104. Notice of Redemption................................. 80
Section 1105. Deposit of Redemption Price.......................... 82
Section 1106. Securities Payable on Redemption Date................ 82
Section 1107. Securities Redeemed in Part.......................... 83
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article............................. 83
Section 1202. Satisfaction of Sinking Fund Payments with
Securities........................................... 84
Section 1203. Redemption of Securities for Sinking Fund............ 84
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article............................. 85
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ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article............................. 85
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called............ 86
Section 1502. Call, Notice and Place of Meetings................... 86
Section 1503. Persons Entitled to Vote at Meetings................. 86
Section 1504. Quorum; Action....................................... 87
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.............................. 87
Section 1506. Counting Votes and Recording Action of Meetings...... 88
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Guarantee............................................ 89
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INDENTURE, dated as of March 1, 1996 (the "Indenture"), among TANGER
PROPERTIES LIMITED PARTNERSHIP, a limited partnership duly organized and
existing under the laws of North Carolina (hereinafter called the "Issuer"),
having its principal executive office located at 0000 Xxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000, TANGER FACTORY OUTLET CENTERS, INC., a
corporation duly organized and existing under the laws of North Carolina
(hereinafter called the "Guarantor" or the "General Partner"), having its
principal executive office at 0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx
Xxxxxxxx 00000, and STATE STREET BANK AND TRUST COMPANY, a banking corporation
duly organized and existing under the laws of Massachusetts, having its
Corporate Trust Office located at 0 Xxxxxxxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
RECITALS
The execution and delivery by the Issuer of this Indenture to
provide for the issuance from time to time of the Issuer's senior unsecured
debentures, notes or other evidences of Indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of interest,
to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided, has been duly
authorized.
The Issuer has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
For value received, the execution and delivery by the Guarantor of
this Indenture to provide for the issuance of Guarantees from time to time as
herein contemplated and the endorsement of such Guarantees has been duly
authorized. All things necessary to make this Indenture a valid agreement of the
Guarantor, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of this
Indenture and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this
Indenture or unless the context otherwise requires, for all purposes of this
Indenture:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the terms "generally accepted accounting principles" or
"GAAP" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation;
(4) the words "herein", "hereof", "hereto" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are
defined in those Articles.
"ACT", when used with respect to any Holders, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Issuer in respect of certain taxes, assessments or other
governmental charges imposed on Holders specified therein and which are owing to
such Holders.
"ADJUSTED TOTAL ASSETS" shall have the meaning specified in Section
1010(a).
"AFFILIATE" of any specified Person means (i) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) any other Person that owns,
directly or indirectly, 10% or more of such specified Person's Voting Stock or
any executive officer, director, manager or trustee of any such specified Person
or
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other Person or, with respect to any natural person, any person having a
relationship with such person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control", when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have the meanings correlative to the foregoing.
"ANNUAL SERVICE CHARGE" as of any date means the amount which is
expensed or capitalized in the immediately preceding four fiscal quarter period
for interest on Indebtedness, excluding amounts relating to the amortization of
deferred financing costs.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"AUTHORIZED NEWSPAPER" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in the
place of publication.
"BEARER SECURITY" means any Security in the form established
pursuant to Section 201 which is payable to bearer.
"BOARD OF DIRECTORS" means the board of directors of the General
Partner or any committee of that board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the Secretary or an Assistant Secretary of the General Partner to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, delivered to the Trustee.
"BUSINESS DAY", with respect to any Place of Payment or other
location, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a Legal Holiday in such Place of Payment or other location.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase warrants, options, participations, rights in or other
equivalents (however designated) of such Person's capital stock or other equity
participations, including partnership interests, whether general or limited, in
such Person, including any preferred stock, and any rights (other than debt
securities convertible into capital stock), warrants or options exchangeable for
or convertible into such capital stock, whether now outstanding or hereafter
issued.
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"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE" for any period
means Consolidated Net Income of the Issuer and its Subsidiaries (i) plus
amounts which have been deducted for (a) interest on Indebtedness of the Issuer
and its Subsidiaries, (b) provision for taxes of the Issuer and its Subsidiaries
based on income, (c) amortization of debt discount, (d) depreciation and
amortization, (e) the effect of any noncash charge resulting from a change in
accounting principles in determining Consolidated Net Income for such period,
(f) amortization of deferred charges, and (g) provisions for or realized losses
on properties and (ii) less amounts which have been included for gains on
properties.
"CONSOLIDATED NET INCOME" for any period means the amount of
consolidated net income (or loss) of the Issuer and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country or the confederation which issued
such Foreign Currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community,
(ii) the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"CORPORATE TRUST OFFICE" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of original execution of this
Indenture is located at 0xx Xxxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx, except that for purposes of Section 1002, such term shall also
mean the office or agency of the Trustee in the Borough of Manhattan, The City
of New York, which office at the date hereof is located at 00 Xxxxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CORPORATION" includes corporations and limited liability companies
and, except for purposes of Article Eight, associations, companies and business
trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"CURRENCY", with respect to any payment, deposit or other transfer
in respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required to
be made by or pursuant to the terms hereof or such Security
13
and, with respect to any other payment, deposit or transfer pursuant to or
contemplated by the terms hereof or such Security, means Dollars.
"CUSIP NUMBER" means the alphanumeric designation assigned to a
Security by Standard & Poor's Corporation, CUSIP Service Bureau.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLARS" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
"ECU" means the European Currency Units as defined and revised from
time to time by the Council of the European Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"EUROPEAN UNION" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"EVENT OF DEFAULT" has the meaning specified in Section 501.
"FOREIGN CURRENCY" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"FUNDS FROM OPERATIONS" for any period means the Consolidated Net
Income of the Issuer and its Subsidiaries for such period without giving effect
to depreciation and amortization uniquely significant to real estate, gains or
losses from extraordinary items, gains or losses on sales of real estate, gains
or losses with respect to the disposition of investments in marketable
securities and any provision/benefit for income taxes for such period, plus the
allocable portion, based on the Issuer's ownership interest, of funds from
operations of unconsolidated joint ventures, all determined on a consistent
basis.
"GAAP" means such accounting principles as are generally accepted in
the United States of America as of the date or time of any computation required
hereunder.
"GENERAL PARTNER" means Tanger Factory Outlet Centers, Inc., as the
sole managing general partner of the Issuer.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such Security or any Additional
Amounts in respect thereof shall be payable, in each case where the payment or
payments thereunder are supported by the full faith and credit of such
government or governments
14
or (ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such other
government or governments, in each case where the timely payment or payments
thereunder are unconditionally guaranteed as a full faith and credit obligation
by the United States of America or such other government or governments, and
which, in the case of (i) or (ii), are not callable or redeemable at the option
of the issuer or issuers thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of or
other amount with respect to any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, PROVIDED that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of or other amount with respect
to the Government Obligation evidenced by such depository receipt.
"GUARANTEE" means the unconditional guarantee of the payment of the
principal of or any premium or interest on or any Additional Amounts with
respect to the Guaranteed Securities by the Guarantor, as more fully described
in Article Sixteen.
"GUARANTEED SECURITIES" means a series of Securities made subject to
a Guarantee (as set forth in Article Sixteen) pursuant to Section 301.
"GUARANTOR" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"GUARANTOR'S BOARD OF DIRECTORS" means the board of directors of the
Guarantor or any committee of that board duly authorized to act generally or in
any particular respect for the Guarantor hereunder.
"GUARANTOR'S BOARD RESOLUTION" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of the
Guarantor to have been duly adopted by the Guarantor's Board of Directors and to
be in full force and effect on the date of such certification, which is
delivered to the Trustee.
"GUARANTOR'S OFFICERS' CERTIFICATE" means a certificate signed by
the Chairman, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Guarantor,
that complies with the requirements of Section 314(e) of the Trust Indenture Act
and is delivered to the Trustee.
"GUARANTOR REQUEST" and "GUARANTOR ORDER" mean, respectively, a
written request or order signed in the name of the Guarantor by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Guarantor, and is delivered to
the Trustee.
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"HOLDER", in the case of any Registered Security, means the Person
in whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, means the bearer thereof and, in the case of any
Coupon, means the bearer thereof.
"INDEBTEDNESS" means any indebtedness, whether or not contingent, in
respect of (i) borrowed money evidenced by bonds, notes, debentures or similar
instruments, (ii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued or amounts representing the balance deferred
and unpaid of the purchase price of any property except any such balance that
constitutes an accrued expense or trade payable or (iv) any lease of property as
lessee which would be reflected on a consolidated balance sheet as a capitalized
lease in accordance with GAAP, in the case of items of indebtedness under (i)
through (iii) above to the extent that any such items (other than letters of
credit) would appear as a liability on a consolidated balance sheet in
accordance with GAAP, and also includes, to the extent not otherwise included,
any obligation to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person.
"INDENTURE" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"INDEPENDENT PUBLIC ACCOUNTANTS" means accountants or a firm of
accountants that, with respect to the Issuer and the Guarantor and any other
obligor under the Securities or the Coupons, are independent public accountants
within the meaning of the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, who may be the independent
public accountants regularly retained by the Issuer or the Guarantor or who may
be other independent public accountants. Such accountants or firm shall be
entitled to rely upon any Opinion of Counsel as to the interpretation of any
legal matters relating to this Indenture or certificates required to be provided
hereunder.
"INDEXED SECURITY" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"INTEREST", with respect to any Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"INTEREST PAYMENT DATE", with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
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"ISSUER" means the Person named as the "Issuer" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor Person, and any other obligor upon the Securities.
"ISSUER REQUEST" and "ISSUER ORDER" mean, respectively, a written
request or order, as the case may be, signed in the name of the Issuer by the
Chairman of the Board of Directors, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the General Partner acting in its capacity as the
general partner of the Issuer, and is delivered to the Trustee.
"JUDGMENT CURRENCY" has the meaning specified in Section 116.
"LEGAL HOLIDAY", with respect to any Place of Payment or other
location, means a Saturday, Sunday or other day on which banking institutions in
such Place of Payment or location are authorized or obligated by law, regulation
or executive order to be closed.
"MATURITY", with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or upon acceleration, notice of redemption or repurchase, notice of
option to elect repayment or otherwise, and includes the Redemption Date.
"NET CASH PROCEEDS" means the proceeds of any issuance or sale of
Capital Stock or options, warrants or rights to purchase Capital Stock, in the
form of cash or cash equivalents, including payments in respect of deferred
payment obligations when received in the form of, or stock or other assets when
disposed for, cash or cash equivalents (except to the extent that such
obligations are financed or sold with recourse to the Issuer or any Subsidiary),
net of attorney's fees, accountant's fees and brokerage, consultation,
underwriting and other fees and expenses actually incurred in connection with
such issuance or sale and net of taxes paid or payable as a result thereof.
"NEW YORK BANKING DAY" has the meaning specified in Section 116.
"OFFICE" or "AGENCY", with respect to any Securities, means an
office or agency of the Issuer maintained or designated in a Place of Payment
for such Securities pursuant to Section 1002 or any other office or agency of
the Issuer maintained or designated for such Securities pursuant to Section 1002
or, to the extent designated or required by Section 1002 in lieu of such office
or agency, the Corporate Trust Office of the Trustee.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman
of the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the General Partner in its capacity as sole managing general partner of the
Issuer, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is delivered to the Trustee.
17
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
an employee of or counsel for the Issuer or the Guarantor, as the case may be,
or other counsel who shall be reasonably acceptable to the Trustee, that, if
required by the Trust Indenture Act, complies with the requirements of Section
314(e) of the Trust Indenture Act.
"ORIGINAL ISSUE DISCOUNT SECURITY" means a Security issued pursuant
to this Indenture which provides for declaration of an amount less than the
principal face amount thereof to be due and payable upon acceleration pursuant
to Section 502.
"OUTSTANDING", when used with respect to any Securities, means, as
of the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or
the Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation;
(b) any such Security for whose payment at the Maturity thereof
money in the necessary amount has been theretofore deposited
pursuant hereto (other than pursuant to Section 402) with the
Trustee or any PAYING AGENT (other than the Issuer or the Guarantor)
in trust or set aside and segregated in trust by the Issuer or the
Guarantor (if the Issuer shall act as its own PAYING AGENT) for the
Holders of such Securities and any Coupons appertaining thereto,
PROVIDED that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Issuer or the
Guarantor has effected defeasance pursuant to the terms hereof,
except to the extent provided in Section 402; and
(d) any such Security which has been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, unless there
shall have been presented to the Trustee proof satisfactory to it
that such Security is held by a bona fide purchaser in whose hands
such Security and any related Guarantee is a valid obligation of the
Issuer and the Guarantor, respectively;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders of Securities for quorum purposes, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that pursuant to the terms of
such Original Issue Discount Security would be declared (or shall have been
declared to be) due and payable upon acceleration thereof pursuant to Section
502 at the time of such determination, and (ii) the principal amount of any
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Indexed Security that may be counted in making such determination and that shall
be deemed outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
in or pursuant to this Indenture, and (iii) the principal amount of a Security
denominated in a Foreign Currency shall be the Dollar equivalent, determined on
the date of original issuance of such Security, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent on the
date of original issuance of such Security of the amount determined as provided
in (i) above) of such Security, and (iv) Securities owned by the Issuer, the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Issuer, the Guarantor or such other obligor, shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the Trustee shall be
protected in making any such determination or relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Securities so owned which shall have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee (A) the pledgee's right so to act with respect to such Securities and
(B) that the pledgee is not the Issuer, the Guarantor or any other obligor upon
the Securities or any Coupons appertaining thereto or an Affiliate of the
Issuer, the Guarantor or such other obligor.
"PAYING AGENT" means any Person authorized by the Issuer to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Issuer.
"PERMITTED INDEBTEDNESS" means Indebtedness of the Issuer, the
General Partner or any Subsidiary owing to any Subsidiary, the General Partner
or the Issuer pursuant to an intercompany note, provided that such Indebtedness
is expressly subordinated in right of payment to the Securities; PROVIDED
FURTHER that any disposition, pledge or transfer of such Indebtedness to a
Person (other than the Issuer or another Subsidiary) shall be deemed to be an
incurrence of such Indebtedness by the Issuer, the General Partner or a
Subsidiary, as the case may be, and not Permitted Indebtedness as defined
herein.
"PERSON" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"PLACE OF PAYMENT", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to such Security are payable as provided in or pursuant to
this Indenture or such Security.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same Indebtedness as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to which
a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed to
evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
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"REDEMPTION DATE", with respect to any Security or portion thereof
to be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture or such Security.
"REDEMPTION PRICE", with respect to any Security or portion thereof
to be redeemed, means the price at which it is to be redeemed as determined by
or pursuant to this Indenture or such Security.
"REGISTERED SECURITY" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any, specified
in or pursuant to this Indenture or such Security as the "Regular Record Date".
"REQUIRED CURRENCY" has the meaning specified in Section 116.
"RESPONSIBLE OFFICER" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"SECURED INDEBTEDNESS" means any Indebtedness secured by any
mortgage, pledge, lien, charge, encumbrance or security interest of any kind
upon any property of the Issuer or any Subsidiary.
"SECURITY" or "SECURITIES" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case may
be, authenticated and delivered under this Indenture; PROVIDED, HOWEVER, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SIGNIFICANT SUBSIDIARY" means a "significant subsidiary" as defined
in Article 1, Section 1-02 of Regulation S-X under the Securities Act of 1933,
as amended.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on
any Registered Security means a date fixed by the Trustee pursuant to Section
307.
"STATED MATURITY", with respect to any Security or any installment
of principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture or such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and
payable.
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"SUBSIDIARY" means any entity of which at the time of determination
the Issuer or one or more other Subsidiaries owns or controls, directly or
indirectly, more than 50% of the shares of Voting Stock.
"TOTAL ASSETS" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Issuer and its Subsidiaries
on a consolidated basis determined in accordance with GAAP (but excluding
intangibles and accounts receivable).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; PROVIDED, HOWEVER, that if at any time there is
more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with respect
to the Securities of such series.
"UNDEPRECIATED REAL ESTATE ASSETS" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the Issuer
and its Subsidiaries on such date, before depreciation and amortization,
determined on a consolidated basis in accordance with GAAP.
"UNITED STATES", except as otherwise provided in or pursuant to this
Indenture or any Security, means the United States of America (including the
states thereof and the District of Columbia), its territories and possessions
and other areas subject to its jurisdiction.
"UNITED STATES ALIEN", except as otherwise provided in or pursuant
to this Indenture or any Security, means any Person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership one or more of the members of which is, for United States
Federal income tax purposes, a foreign corporation, a non-resident alien
individual or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. DEPOSITORY" or "DEPOSITORY" means, with respect to any
Security issuable or issued in the form of one or more global Securities, the
Person designated as U.S. Depository or Depository by the Issuer in or pursuant
to this Indenture, which Person must be, to the extent required by applicable
law or regulation, a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depository" or "Depository" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
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"VICE PRESIDENT", when used with respect to a vice president of the
General Partner acting in its capacity as the sole managing general partner of
the Issuer, or with respect to the Guarantor or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before
or after the title "Vice President".
"VOTING STOCK" means stock having general voting power under
ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees (or persons performing similar functions), provided that
stock that carries only the right to vote conditionally on the happening of an
event shall not be considered Voting Stock.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Issuer or the Guarantor to the Trustee to take any
action under any provision of this Indenture, the Issuer or the Guarantor, as
the case may be, shall furnish to the Trustee an Officers' Certificate or a
Guarantor's Officers' Certificate, as the case may be, stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents or any of them is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer or the
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the opinion with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Issuer or the
Guarantor, as the case may be, stating that the information with respect to such
factual matters is in the possession of the Issuer or the Guarantor, as the case
may be, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
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Section 104. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. If, but only if, Securities of a series are issuable as
Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided in or pursuant to this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Issuer and the Guarantor. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such instrument
or instruments or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 315 of the Trust Indenture Act) conclusive in favor of the
Trustee and the Issuer and the Guarantor and any agent of the Trustee or the
Issuer and the Guarantor, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
Without limiting the generality of this Section 104, unless
otherwise provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or
pursuant to this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining
the Persons who are beneficial owners of interest in any permanent global
Security held by a U.S. Depository entitled under the procedures of such U.S.
Depository to make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver
or other Act provided in or pursuant to this Indenture to be made, given or
taken by Holders. If such a record date is fixed, the Holders on such record
date or their duly appointed proxy or proxies, and only such Persons, shall be
entitled to make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other Act, whether or not such Holders remain Holders
after such record date. No such request, demand, authorization, direction,
notice, consent, waiver or other Act shall be valid or effective if made, given
or taken more than 90 days after such record date.
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(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(4) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Issuer,
wherever situated, if such certificate shall be deemed by the Issuer and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Issuer may assume that such ownership of any Bearer Security continues until (1)
another certificate or affidavit bearing a later date issued in respect of the
same Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Issuer and the Trustee deem
sufficient.
(5) If the Issuer or the Guarantor shall solicit from the Holders of
any Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Issuer or the Guarantor, as the case may be,
may at its option (but is not obligated to), by Board Resolution or Guarantor's
Board Resolution, as the case may be, fix in advance a record date for the
determination of Holders of Registered Securities entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act. If such
a record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders of Registered
Securities shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
(6) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future Holder
of the same Security and the
24
Holder of every Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee, any Security Registrar, any PAYING AGENT, the Guarantor
or the Issuer in reliance thereon, whether or not notation of such Act is made
upon such Security.
Section 105. Notices, etc., to Trustee and Issuer and Guarantor.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, the Guarantor or the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Issuer or the Guarantor by the Trustee or any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Issuer or the Guarantor, as the case may be,
addressed to the attention of its Treasurer at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the
Trustee by the Issuer or the Guarantor, as the case may be.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to
each Holder of a Registered Security affected by such event, at his
address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for
the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities, if any, if published in an Authorized Newspaper in The
City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper
in such city as the Issuer shall advise the Trustee that such stock
exchange so requires, on a Business Day at least twice, the first
such publication to be not earlier than the earliest date and the
second such publication not later than the latest date prescribed
for the giving of such notice.
In any case where notice to Holders of Registered Securities is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
25
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided. In
the case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of any notice mailed to
Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Issuer or the Guarantor, as the case may
be, so elects, any published notice may be in an official language of the
country of publication.
Section 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
duties under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, such required provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer and the
Guarantor shall bind its successors and assigns, whether so expressed or not.
All covenants and agreements in this Indenture by the Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
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In case any provision in this Indenture, any Security or Guarantee,
if any, endorsed thereon or any Coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or Guarantee, if any,
endorsed thereon or any Coupon, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any PAYING AGENT and
their successors hereunder and the Holders of Securities or Coupons, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Guarantees endorsed thereon
and any Coupons shall be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made or instruments entered
into and, in each case, performed in said state. This Indenture is subject to
the provisions of the TIA that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
Section 114. Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any
Securities, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that specifically states
that such provision shall apply in lieu hereof) payment need not be made at such
Place of Payment on such date but such payment may be made, on the next
succeeding day that is a Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or at the Stated
Maturity or Maturity, and no interest shall accrue on the amount payable on such
date or at such time for the period from and after such Interest Payment Date,
Stated Maturity, Maturity, as the case may be, to the next succeeding Business
Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the
same instrument.
Section 116. Judgment Currency.
The Issuer and the Guarantor each agrees, to the fullest extent that
it may effectively do so under applicable law, that (a) if for the purpose of
obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of, or premium or interest, if any, or Additional
Amounts on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the
27
New York Banking Day preceding that on which a final unappealable judgment is
given and (b) its obligations under this Indenture or the Securities or
Guarantees, if any, endorsed thereon, as the case may be, to make payments in
the Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with
clause (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York or a
day on which banking institutions in The City of New York are authorized or
obligated by law, regulation or executive order to be closed.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary or
permanent global Security issued pursuant to this Indenture and any related
Guarantees shall be in the form established by or pursuant to a Board Resolution
or a Guarantor's Board Resolution or in one or more indentures supplemental
hereto, shall have such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by or pursuant to this Indenture
or any indenture supplemental hereto and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined by the officers executing such Security or
Coupon or such Guarantee, as the case may be, as evidenced by their execution of
such Security or Coupon or such Guarantee, as the case may be.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without Coupons
and shall not be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Issuer executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
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Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
State Street Bank and Trust Company,
as Trustee
By
-----------------------------
Authorized Officer
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any
Securities, the Securities shall not be issuable in temporary or permanent
global form. If Securities of a series shall be issuable in global form, any
such Security may provide that it or any number of such Securities shall
represent the aggregate amount of all Outstanding Securities of such series (or
such lesser amount as is permitted by the terms thereof) from time to time
endorsed thereon and may also provide that the aggregate amount of Outstanding
Securities represented thereby may from time to time be increased or reduced to
reflect exchanges. Any endorsement of any Security in global form to reflect the
amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such
manner and by such Person or Persons as shall be specified therein or in the
Issuer Order to be delivered pursuant to Section 303 or 304 with respect
thereto. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Issuer Order. If an Issuer Order pursuant
to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Issuer with respect to a Security in global form shall be in
writing but need not be accompanied by or contained in an Officers' Certificate
and need not be accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified in or pursuant to this Indenture or any Securities, payment of
principal of, any premium and interest on, and any Additional Amounts in respect
of, any Security in temporary or permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a global Security (i) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (ii) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
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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.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of,
other Securities of the series pursuant to Section 304, 305, 306,
905 or 1107, upon repayment in part of any Registered Security of
such series pursuant to Article Thirteen, or pursuant to the terms
of such Securities);
(3) if such Securities are to be issuable as Registered Securities,
as Bearer Securities or alternatively as Bearer Securities and
Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities
and the terms, if any, upon which Bearer Securities may be exchanged
for Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and
(i) whether such Securities are to be issued in temporary or
permanent global form or both, (ii) whether beneficial owners of
interests in any such global Security may exchange such interests
for Securities of the same series and of like tenor and of any
authorized form and denomination, and the circumstances under which
any such exchanges may occur, if other than in the manner specified
in Section 305, and (iii) the name of the Depository or the U.S.
Depository, as the case may be, with respect to any global Security;
(5) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series that shall be
payable upon acceleration of maturity thereof or the method, if any,
by which such portion shall be determined;
(6) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the
series shall be payable;
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(7) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method, if any, by which such rate or
rates shall be determined, the date or dates, if any, from which
such interest shall accrue or the method, if any, by which such date
or dates shall be determined, the Interest Payment Dates, if any, on
which such interest shall be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method, if any, by which such Regular
Record Date shall be determined, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve
30-day months;
(8) the Place of Payment and the place or places, if any, other than
or in addition to the Borough of Manhattan, New York City, any
Registered Securities of the series may be surrendered for
registration of transfer or exchange and notices or demands to or
upon the Issuer or the Guarantor in respect of the Securities of the
series and any related Guarantees and this Indenture may be served,
the extent to which, or the manner in which, any interest payment or
Additional Amounts on a global Security on an Interest Payment Date,
if any, will be paid and the manner in which any principal of or
premium, if any, on any global Security will be paid;
(9) whether any of such Securities are to be redeemable at the
option of the Issuer and, if so, the date or dates on which, the
period or periods within which, the price or prices at which, the
currency or currencies, currency unit or units or composite currency
or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at
the option of the Issuer, if the Issuer is to have such option;
(10) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
date or dates on which, the period or periods within which, the
price or prices at which, the currency or currencies, currency unit
or units or composite currency or currencies in which, and other
terms and conditions upon which Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(11) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the
series shall be issuable and, if other than denominations of $5,000
and any integral multiple thereof, the denomination or denominations
in which any Bearer Securities of the series shall be issuable;
(12) if other than the Trustee, the identity of each Security
Registrar, Authenticating Agent and/or PAYING AGENT with respect to
the Securities of the series and, if there is more than one Trustee,
the identity of the Trustee;
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(13) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest
or Additional Amounts, if any, on the Securities of the series shall
be payable or in which the Securities of the series shall be
denominated;
(14) whether the amount of payments of principal of (and premium, if
any) or interest or Additional Amounts, if any, on the Securities of
the series may be determined with reference to an index, formula or
other method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and, if
so, the terms and conditions upon which and the manner in which such
amounts shall be determined;
(15) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series are to
be payable, at the election of the Issuer or a Holder thereof or
otherwise, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such
Securities are stated to be payable, the date or dates on which, the
period or periods within which, and the terms and conditions upon
which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are stated to be payable and the currency or
currencies, currency unit or units or composite currency or
currencies in which such Securities are to be so paid pursuant to
such election;
(16) any deletions from, modifications of or additions to the Events
of Default or covenants of the Issuer or the Guarantor with respect
to Securities of the series, whether or not such Events of Default
or covenants are consistent with the Events of Default or covenants
set forth herein;
(17) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons)
or both, any restrictions applicable to the offer, sale or delivery
of Bearer Securities and the terms upon which Bearer Securities of
the series may be exchanged for Registered Securities of the series
and vice versa (if permitted by applicable laws and regulations),
whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and,
if so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security,
the identity of the Depository for such series;
32
(18) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of
the related series shall be dated if other than the date of original
issuance of the first Bearer Security of the series to be issued;
(19) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name
that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security
on an Interest Payment Date will be paid if other than in the manner
provided in Section 304;
(20) if the Securities of such series are to be Guaranteed
Securities and, if so, the terms of the Guarantees endorsed thereon.
(21) if either or both of Section 402(2) relating to defeasance or
Section 402(3) relating to covenant defeasance shall not be
applicable to the Securities of such series or any provisions in
modification of, in addition to or in lieu of any of the provisions
of Article Four;
(22) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(23) whether and under what circumstances the Issuer will pay
Additional Amounts on the Securities of the series to any Holder who
is not a United States person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Issuer will have the
option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and all Coupons, if any,
appertaining to Bearer Securities of such series shall be substantially
identical except as to Currency of payments due thereunder, denomination and the
rate of interest, or method of determining the rate of interest, if any,
Maturity, and the date from which interest, if any, shall accrue and except as
may otherwise be provided by the Issuer in or pursuant to the Board Resolution
and set forth in the Officers' Certificate or in any indenture or indentures
supplemental hereto pertaining to such series of
33
Securities. The terms of the Securities of any series may provide, without
limitation, that the Securities shall be authenticated and delivered by the
Trustee on original issue from time to time upon telephonic or written order of
persons designated in the Officers' Certificate or supplemental indenture
(telephonic instructions to be promptly confirmed in writing by such person) and
that such persons are authorized to determine, consistent with such Officers'
Certificate or any applicable supplemental indenture, such terms and conditions
of the Securities of such series as are specified in such Officers' Certificate
or supplemental indenture. All Securities of any one series need not be issued
at the same time and, unless otherwise so provided by the Issuer, a series may
be reopened for issuances of additional Securities of such series or to
establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise provided
in or pursuant to this Indenture, Registered Securities denominated in Dollars
shall be issuable in registered form without Coupons in denominations of $1,000
and any integral multiple thereof, and the Bearer Securities denominated in
Dollars shall be issuable in the denomination of $5,000. Securities not
denominated in Dollars shall be issuable in such denominations as are
established with respect to such Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Issuer by the General
Partner acting in its capacity as sole managing general partner of the Issuer by
the General Partner's Chairman of the Board, one of its Vice Chairmen, its
President, one of its Vice Presidents or its Treasurer under its corporate seal
reproduced thereon and attested by its Secretary or one of its Assistant
Secretaries. Coupons shall be executed on behalf of the Issuer by the General
Partner acting in its capacity as sole managing general partner of the Issuer by
the General Partner's Chairman of the Board, one of its Vice Chairman, its
President, one of its Vice Presidents or its Treasurer. The signature of any of
these officers on the Securities or any Guarantee endorsed thereon or any
Coupons appertaining thereto may be manual or facsimile. The Guarantor agrees to
execute a Guarantee on each Guaranteed Security authenticated and delivered by
the Trustee. Guarantees shall be executed on behalf of the Guarantor by its
Chairman of the Board, one of its Vice Chairman, its President, one of its Vice
Presidents or its Treasurer under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries.
Securities and any Coupons appertaining thereto and any related
Guarantees bearing the manual or facsimile signatures of individuals who were at
any time the proper officers of the Issuer or the Guarantor, as the case may be
shall bind the Issuer or the Guarantor, as the
34
case may be, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
and Guarantees, if any, endorsed thereon or did not hold such offices at the
date of such Securities and Guarantees, if any, endorsed thereon or Coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Issuer may deliver Securities and any related Guarantees
endorsed thereon, together with any Coupons appertaining thereto, executed by
the Issuer, to the Trustee for authentication and, provided that the Board
Resolution and Officers' Certificate or supplemental indenture or indentures
with respect to such Securities referred to in Section 301 and an Issuer Order
for the authentication and delivery of such Securities have been delivered to
the Trustee, the Trustee in accordance with the Issuer Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
related Guarantees endorsed thereon and any Coupons appertaining thereto, the
Trustee shall be entitled to receive, and (subject to Sections 315(a) through
315(d) of the Trust Indenture Act) shall be fully protected in relying upon,
(1) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities and any related
Guarantees endorsed thereon and Coupons, if any, appertaining
thereto have been established in conformity with the provisions of
this Indenture;
(b) all conditions precedent to the authentication and delivery of
such Securities and any related Guarantees endorsed thereon and
Coupons, if any, appertaining thereto, have been complied with and
that such Securities and Coupons, when completed by appropriate
insertions, executed under the Issuer's corporate seal and attested
by a duly authorized officer of the Issuer, delivered by duly
authorized officers of the Issuer to the Trustee for authentication
pursuant to this Indenture, and authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, and any Guarantees
endorsed on such Securities, when executed under the Guarantor's
corporate seal and attested by a duly authorized officer of the
Guarantor and delivered with such Securities as referred to above,
will constitute legally valid and binding obligations of the Issuer
and the Guarantor, as the case may be, enforceable in accordance
with their terms, except as enforcement thereof may be subject to or
limited by bankruptcy, insolvency, reorganization, moratorium, or
other similar laws relating to or affecting creditors' rights
generally or to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law), and the
Holders of such Securities will be entitled to the benefits of this
Indenture and any Guarantees endorsed on such Securities; such
Opinion of Counsel need express no opinion as to the availability of
equitable remedies;
35
(c) all laws and requirements in respect of the execution and
delivery of such Securities and any Guarantees endorsed thereon and
Coupons, if any, appertaining thereto have been complied with; and
(d) this Indenture has been qualified under the Trust Indenture Act;
and
(2) an Officers' Certificate and a Guarantor's Officers'
Certificate, in each case stating that, to the best knowledge of the Persons
executing such certificate, no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the Securities shall
have occurred and be continuing.
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Opinion of Counsel and an
Officers' Certificate at the time of issuance of each Security, but such opinion
and certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Issuer that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Issuer that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security and any Bearer Security in global form
shall be dated as of the date specified in or pursuant to this Indenture.
No Security or any Guarantee endorsed thereon or Coupon appertaining
thereto shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose, unless there appears on such Security a certificate
of authentication substantially in the form provided for in Section 202 or 611
executed by or on behalf of the Trustee or by the Authenticating Agent by the
manual signature of one of its authorized officers. Such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any Bearer
Security unless all Coupons appertaining thereto then matured have been detached
and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Issuer may
execute and deliver to the Trustee and, upon Issuer Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially
36
of the tenor of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized in or pursuant to this Indenture, in bearer
form with one or more Coupons or without Coupons and with such appropriate
insertions, omissions, substitutions and other variations as the officers of the
Issuer executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. Such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form, which
shall be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Issuer shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities shall
be exchangeable for such definitive Securities upon surrender of such temporary
Securities at an Office or Agency for such Securities, without charge to any
Holder thereof. Upon surrender for cancellation of any one or more temporary
Securities (accompanied by any unmatured Coupons appertaining thereto), the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities (which, if such
Securities are Guaranteed Securities, shall have the related Guarantees endorsed
thereon) of authorized denominations of the same series and containing identical
terms and provisions; PROVIDED, HOWEVER, that no definitive Bearer Security,
except as provided in or pursuant to this Indenture, shall be delivered in
exchange for a temporary Registered Security; and PROVIDED, FURTHER, that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in or pursuant to this
Indenture. Unless otherwise provided in or pursuant to this Indenture with
respect to a temporary global Security, until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any,
the Issuer shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of such
series. Such Office or Agency shall be the "Security Registrar" for that series
of Securities. Unless otherwise specified in or pursuant to this Indenture or
the Securities, the Trustee shall be the initial Security Registrar for each
series of Securities. The Issuer shall have the right to remove and replace from
time to time the Security Registrar for any series of Securities; provided that
no such removal or replacement shall be effective until a successor Security
Registrar with respect to such series of Securities shall have been appointed by
the Issuer and shall have accepted such appointment by the Issuer. In the event
that the Trustee shall not be or shall cease to be Security Registrar with
respect to a series of Securities, it shall have the right to examine the
Security Register for such series at all reasonable times. There shall be only
one Security Register for each series of Securities.
Upon surrender for registration of transfer of any Registered
Security of any series at any Office or Agency for such series, the Issuer shall
execute, and the Trustee shall authenticate
37
and deliver, in the name of the designated transferee or transferees, one or
more new Registered Securities (which, if such Registered Securities are
Guaranteed Securities, shall have the related Guarantees endorsed thereon) of
the same series denominated as authorized in or pursuant to this Indenture, of a
like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities (which, if such Registered
Securities are Guaranteed Securities, shall have the related Guarantees endorsed
thereon) which the Holder making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of such
series may be exchanged for Registered Securities of such series containing
identical terms, denominated as authorized in or pursuant to this Indenture and
in the same aggregate principal amount, upon surrender of the Bearer Securities
to be exchanged at any Office or Agency for such series, with all unmatured
Coupons and all matured Coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Issuer,
the Guarantor (if such Bearer Securities are Guaranteed Securities) and the
Trustee in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Issuer,
the Guarantor (if such Bearer Securities are Guaranteed Securities) and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any PAYING AGENT harmless. If thereafter the
Holder of such Bearer Security shall surrender to any PAYING AGENT any such
missing Coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by Coupons shall be payable only upon presentation and surrender of
those Coupons at an Office or Agency for such series located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such Office or Agency for such series in exchange for a
Registered Security of such series and like tenor after the close of business at
such Office or Agency on (i) any Regular Record Date and before the opening of
business at such Office or Agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and before the opening of business at such Office or
Agency on the related date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such Coupon
is so surrendered with such Bearer Security, such Coupon shall be returned to
the Person so surrendering the Bearer Security), and interest or Defaulted
Interest, as the case may be, shall not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Security issued in exchange for such Bearer Security, but
38
shall be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to
Securities of any series, at the option of the Holder, Registered Securities of
such series may be exchanged for Bearer Securities upon such terms and
conditions as may be provided in or pursuant to this Indenture with respect to
such series.
Whenever any Securities are surrendered for exchange as contemplated
by the immediately preceding two paragraphs, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Securities (which, if the Securities
are Guaranteed Securities, shall have the related Guarantees endorsed thereon)
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is not
appointed by the Issuer within 90 days of the date the Issuer is so informed in
writing, (ii) the Issuer executes and delivers to the Trustee an Issuer Order to
the effect that such global Security shall be so exchangeable, or (iii) an Event
of Default has occurred and is continuing with respect to the Securities. If the
beneficial owners of interests in a global Security are entitled to exchange
such interests for definitive Securities as the result of an event described in
clause (i), (ii) or (iii) of the preceding sentence, then without unnecessary
delay but in any event not later than the earliest date on which such interests
may be so exchanged, the Issuer shall deliver to the Trustee definitive
Securities (which, if the Securities are Guaranteed Securities, shall have the
related Guarantees endorsed thereon) in such form and denominations as are
required by or pursuant to this Indenture, and of the same series, containing
identical terms and in aggregate principal amount equal to the principal amount
of such global Security, executed by the Issuer (and, if such Securities are
Guaranteed Securities, the Guarantor). On or after the earliest date on which
such interests may be so exchanged, such global Security shall be surrendered
from time to time by the U.S. Depository or such other Depository as shall be
specified in the Issuer Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depository or such other
Depository, as the case may be (which instructions shall be in writing but need
not be contained in or accompanied by an Officers' Certificate or be accompanied
by an Opinion of Counsel), as shall be specified in the Issuer Order with
respect thereto to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities as described above
without charge, other than exchanges pursuant to Section 304, 905 or 1107 not
involving any transfer. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered global Security, a
like aggregate principal amount of definitive Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities are not issuable both as
Bearer Securities and as Registered Securities, in which case the definitive
Securities exchanged for the global Security shall be issuable only in the form
in which the Securities are issuable, as provided in or pursuant to this
Indenture) shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof, but subject to the satisfaction of any certification or other
requirements
39
to the issuance of Bearer Securities; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities of the same series to be redeemed and ending on the
relevant Redemption Date; and PROVIDED, FURTHER, that (unless otherwise provided
in or pursuant to this Indenture) no Bearer Security delivered in exchange for a
portion of a global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such Depository or the
U.S. Depository, as the case may be, or such other Depository or U.S. Depository
referred to above in accordance with the instructions of the Issuer referred to
above. If a Registered Security is issued in exchange for any portion of a
global Security after the close of business at the Office or Agency for such
Security where such exchange occurs on or after (i) any Regular Record Date for
such Security and before the opening of business at such Office or Agency on the
next Interest Payment Date, or (ii) any Special Record Date for such Security
and before the opening of business at such Office or Agency on the related
proposed date for payment of interest or Defaulted Interest, as the case may be,
interest shall not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but shall
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of
such global Security shall be payable in accordance with the provisions of this
Indenture.
All Securities and any related Guarantees endorsed thereon issued
upon any registration of transfer or exchange of Securities shall be the valid
obligations of the Issuer and the Guarantor, respectively, evidencing the same
debt and entitling the Holders thereof to the same benefits under this Indenture
as the Securities and any related Guarantees endorsed thereon surrendered upon
such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange or redemption shall (if so required by the Issuer or
the Security Registrar for such Security) be duly endorsed, or be accompanied by
a written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge, other than
exchanges pursuant to Section 304, 905 or 1107 not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Issuer shall not be required (i) to issue, register the transfer of or exchange
any Securities during a period beginning at the opening of business 15 days
before the day of the selection for redemption of Securities of like tenor and
the same series under Section 1103 and ending at the close of business on the
day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
40
Bearer Security may be exchanged for a Registered Security of like tenor and the
same series, provided that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture or (iv) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered
for repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Issuer shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security (which, if such Security is a
Guaranteed Security, shall have the related Guarantee endorsed thereon) of the
same series containing identical terms and of like principal amount and bearing
a number not contemporaneously outstanding, with Coupons appertaining thereto
corresponding to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Issuer, the Guarantor (if the Security
is a Guaranteed Security) and to the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security or Coupon, and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Issuer,
the Guarantor (if the Security is a Guaranteed Security) or the Trustee that
such Security or Coupon has been acquired by a bona fide purchaser, the Issuer
shall execute and, upon the Issuer's request the Trustee shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or
stolen Coupon appertains with all appurtenant Coupons not destroyed, lost or
stolen, a new Security (which, if such Security is a Guaranteed Security, shall
have the related Guarantee endorsed thereon) of the same series containing
identical terms and of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons corresponding to the Coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in
case any mutilated, destroyed, lost or stolen Security or Coupon has become or
is about to become due and payable, the Issuer in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; PROVIDED, HOWEVER, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest shall be payable only upon presentation and surrender
of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be
41
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security and any related Guarantee endorsed thereon, with
any Coupons appertaining thereto issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security, or in exchange for a Security to which a
destroyed, lost or stolen Coupon appertains shall constitute a separate
obligation of the Issuer and the Guarantor,as the case may be, whether or not
the destroyed, lost or stolen Security and Coupons appertaining thereto or the
destroyed, lost or stolen Coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any related
Guarantees endorsed thereon and any Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant
to this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise provided
in or pursuant to this Indenture, in case a Bearer Security is surrendered in
exchange for a Registered Security after the close of business at an Office or
Agency for such Security on any Regular Record Date therefor and before the
opening of business at such Office or Agency on the next succeeding Interest
Payment Date therefor, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date and interest shall not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security), at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Issuer or the Guarantor (if the Registered Security is a
Guaranteed Security) may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall be
42
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuer or the Guarantor (if the Registered
Security is a Guaranteed Security) shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
such Registered Security and the date of the proposed payment, and
at the same time the Issuer or the Guarantor (if the Registered
Security is a Guaranteed Security), as the case may be, shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when so
deposited to be held in trust for the benefit of the Person entitled
to such Defaulted Interest as in this Clause provided. Thereupon,
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Issuer or
the Guarantor, as the case may be, of such Special Record Date and,
in the name and at the expense of the Issuer or the Guarantor, as
the case may be, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Holder of such
Registered Security (or a Predecessor Security thereof) at his
address as it appears in the Security Register not less than 10 days
prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Issuer or the
Guarantor, as the case may be, cause a similar notice to be
published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but
such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Person in whose name such Registered Security
(or a Predecessor Security thereof) shall be registered at the close
of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer
Security is surrendered at the Office or Agency for such Security in
exchange for a Registered Security after the close of business at
such Office or Agency on any Special Record Date and before the
opening of business at such Office or Agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the Coupon relating to such Defaulted
Interest and Defaulted Interest shall not be payable on such
proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but shall be payable
only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
(2) The Issuer or the Guarantor (if the Security is a Guaranteed
Security) may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon
such notice as may be required by such exchange,
43
if, after notice given by the Issuer or the Guarantor, as the case
may be, to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the
Securities of any particular series pursuant to the provisions of this
Indenture, at the option of the Issuer, interest on Registered Securities that
bear interest may be paid by mailing a check to the address of the Person
entitled thereto as such address shall appear in the Security Register or by
transfer to an account maintained by the payee with a bank located in the United
States.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration
of transfer, the Issuer, the Guarantor (if the Registered Security is a
Guaranteed Security), the Trustee and any agent of the Issuer or the Guarantor
(if the Registered Security is a Guaranteed Security) or the Trustee may treat
the Person in whose name such Registered Security is registered in the Security
Register as the owner of such Registered Security for the purpose of receiving
payment of principal of, any premium and (subject to Sections 305 and 307)
interest on and any Additional Amounts with respect to such Registered Security
and for all other purposes whatsoever, whether or not any payment with respect
to such Registered Security shall be overdue, and neither the Issuer, nor the
Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee
shall be affected by notice to the contrary.
The Issuer, the Guarantor (if the Bearer Security is a Guaranteed
Security), the Trustee and any agent of the Issuer, the Guarantor (if the Bearer
Security is a Guaranteed Security) or the Trustee may treat the bearer of any
Bearer Security or the bearer of any Coupon as the absolute owner of such
Security or Coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not any payment with
respect to such Security or Coupon shall be overdue, and neither the Issuer, nor
the Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the
Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on
its behalf by a Depository shall have any rights under this Indenture with
respect to such global Security, and such Depository may be treated by the
Issuer, the Guarantor (if the global Security is a Guaranteed Security), the
Trustee, and any agent of the Issuer, the Guarantor (if the global Security is a
Guaranteed Security) or the Trustee as the owner of such global Security for all
purposes whatsoever. None of the Issuer, the Guarantor (if the global Security
is a Guaranteed Security), the Trustee, any PAYING AGENT or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
44
interests of a global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and Coupons, as well as Securities and
Coupons surrendered directly to the Trustee for any such purpose, shall be
cancelled promptly by the Trustee. The Issuer or the Guarantor (if the Security
is a Guaranteed Security) may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Issuer or the Guarantor (if the Security is a Guaranteed Security) may
have acquired in any manner whatsoever, and all Securities so delivered shall be
cancelled promptly by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by or pursuant to this Indenture. All cancelled
Securities and Coupons held by the Trustee shall be destroyed by the Trustee,
unless the Issuer delivers an Issuer Order or the Guarantor delivers a Guarantor
Order, as the case may be, which directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in
any Security, interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Issuer pursuant to an Issuer Order or of
the Guarantor pursuant to a Guarantor Order (if the applicable series of
Securities is a series of Guaranteed Securities), this Indenture shall cease to
be of further effect with respect to any series of Securities specified in such
Issuer Order or Guarantor Order and any Coupons appertaining thereto, and the
Trustee, on receipt of an Issuer Order or a Guarantor Order, at the expense of
the Issuer and the Guarantor, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(a) all Securities of such series theretofore authenticated
and delivered and all Coupons appertaining thereto (other than (i)
Coupons appertaining to Bearer Securities of such series surrendered in
exchange for Registered Securities of such series and maturing after
such exchange whose surrender is not required or has been waived as
45
provided in Section 305, (ii) Securities and Coupons of such series
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Xxxxxxx 000, (xxx) Coupons appertaining to
Securities of such series called for redemption and maturing after the
relevant Redemption Date whose surrender has been waived as provided in
Section 1107, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Issuer and thereafter repaid to the Issuer or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(b) all Securities of such series and, in the case of
(i) or (ii) below, any Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Issuer, are to be
called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Issuer and
the Guarantor (if the Securities of such series are Guaranteed
Securities),
and the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities), in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose, money in the Currency in which such Securities are
payable in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, including the
principal of, any premium and interest on, and any Additional Amounts with
respect to such Securities and any Coupons appertaining thereto, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Maturity thereof, as the case may be;
(2) the Issuer or the Guarantor (if the Securities of such series
are Guaranteed Securities) has paid or caused to be paid all other
sums payable hereunder by the Issuer and the Guarantor with respect
to the Outstanding Securities of such series and any Coupons
appertaining thereto; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel and the Guarantor has delivered to the
Trustee a Guarantor's Officers' Certificate (if the Securities of
such series are Guaranteed Securities), each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have
been complied with.
46
In the event there are Securities of two or more series hereunder,
the Trustee shall be required to execute an instrument acknowledging
satisfaction and discharge of this Indenture only if requested to do so with
respect to Securities of such series as to which it is Trustee and if the other
conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to any series of Securities, the obligations of the Issuer and the
Guarantor to the Trustee under Section 605 and, if money shall have been
deposited with the Trustee pursuant to subclause (b) of clause (1) of this
Section, the obligations of the Issuer and the Trustee with respect to the
Securities of such series under Sections 305, 306, 403, 1002 and 1003, with
respect to the payment of Additional Amounts, if any, with respect to such
Securities as contemplated by Section 1004 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 401(1)(b)),
and with respect to any rights to exchange or convert such Securities into other
securities shall survive.
Section 402. Defeasance and Covenant Defeasance.
(1) Unless pursuant to Section 301 either or both of (i) defeasance
of the Securities of or within a series under clause (2) of this Section 402
shall not be applicable with respect to the Securities of such series or (ii)
covenant defeasance of the Securities of or within a series under clause (3) of
this Section 402 shall not be applicable with respect to the Securities of such
series, then such provisions, together with the other provisions of this Section
402 (with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
Coupons appertaining thereto, and the Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any Coupons
appertaining thereto, elect to have Section 402(2) or Section 402(3) be applied
to such Outstanding Securities and any Coupons appertaining thereto upon
compliance with the conditions set forth below in this Section 402.
(2) Upon the Issuer's exercise of the above option applicable to
this Section 402(2) with respect to any Securities of or within a series, each
of the Issuer and the Guarantor (if such Securities are Guaranteed Securities)
shall be deemed to have been discharged from its obligations with respect to
such Outstanding Securities and any Coupons appertaining thereto, and under the
Guarantee in respect thereof (if applicable), respectively, on the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer and the Guarantor (if such Securities are Guaranteed Securities) shall be
deemed to have paid and discharged the entire Indebtedness represented by such
Outstanding Securities and any Coupons appertaining thereto, and under the
Guarantee in respect thereof (if such Securities are Guaranteed Securities),
which shall thereafter be deemed to be "Outstanding" only for the purposes of
clause (5) of this Section 402 and the other Sections of this Indenture referred
to in clauses (i) and (ii) below, and to have satisfied all of its other
obligations under such Securities and any Coupons appertaining thereto, and
under the Guarantee in respect thereof (if such Securities are Guaranteed
Securities), and this Indenture insofar as such Securities and any Coupons
appertaining thereto, and the Guarantee in respect thereof (if such Securities
are Guaranteed Securities), are concerned (and the Trustee, at the expense of
the Issuer
47
and the Guarantor (if such Securities are Guaranteed Securities), shall execute
proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of
Holders of such Outstanding Securities and any Coupons appertaining thereto to
receive, solely from the trust fund described in clause (4) of this Section 402
and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, if any, on, and Additional
Amounts, if any, with respect to, such Securities and any Coupons appertaining
thereto when such payments are due, (ii) the obligations of the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) and the Trustee with
respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1004 (but only to the extent that the Additional Amounts
payable with respect to such Securities exceed the amount deposited in respect
of such Additional Amounts pursuant to Section 401(4)(a) below), (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv)
this Section 402. The Issuer may exercise its option under this Section 402(2)
notwithstanding the prior exercise of its option under clause (3) of this
Section 402 with respect to such Securities and any Coupons appertaining
thereto.
(3) Upon the Issuer's exercise of the above option applicable to
this Section 402(3) with respect to any Securities of or within a series, each
of the Issuer and the Guarantor (if the Securities are Guaranteed Securities)
shall be released from its obligations under Sections 1005, 1006, 1007, 1008,
1009, 1010 and 1011 and, to the extent specified pursuant to Section 301, any
other covenant applicable to such Securities, with respect to such Outstanding
Securities and any Coupons appertaining thereto, and the Guarantee in respect
thereof (if the Securities are Guaranteed Securities), on and after the date the
conditions set forth in clause (4) of this Section 402 are satisfied
(hereinafter, "covenant defeasance"), and such Securities and any Coupons
appertaining thereto shall thereafter be deemed to be not "Outstanding" for the
purposes of any direction, waiver, consent or declaration or Act of Holders (and
the consequences of any thereof) in connection with any such covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any Coupons appertaining thereto, the Issuer and the Guarantor
(if applicable) may omit to comply with, and shall have no liability in respect
of, any term, condition or limitation set forth in any such Section or such
other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a default or an Event of Default under Section 501(4) or 501(9) or otherwise, as
the case may be, but, except as specified above, the remainder of this Indenture
and such Securities and Coupons appertaining thereto and the Guarantee in
respect thereof (if the Securities are Guaranteed Securities) shall be
unaffected thereby.
(4) The following shall be the conditions to application of clause
(2) or (3) of this Section 402 to any Outstanding Securities of or within a
series and any Coupons appertaining thereto and the Guarantee (if the Securities
are Guaranteed Securities) in respect thereof:
48
(a) The Issuer or the Guarantor (if the Securities are Guaranteed
Securities) shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Section 402 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any Coupons appertaining thereto, (1)
an amount in Dollars or in such Foreign Currency in which such
Securities and any Coupons appertaining thereto are then specified
as payable at Stated Maturity, or (2) Government Obligations
applicable to such Securities and Coupons appertaining thereto
(determined on the basis of the Currency in which such Securities
and Coupons appertaining thereto are then specified as payable at
Stated Maturity) which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment
of principal of (and premium, if any) and interest, if any, on such
Securities and any Coupons appertaining thereto, money in an amount,
or (3) a combination thereof, in any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (y) the principal of (and premium, if any) and
interest, if any, on such Outstanding Securities and any Coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (z) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities and any Coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any Coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this
Indenture, the Guarantee (if applicable) or any other material
agreement or instrument to which the Issuer or the Guarantor (if the
Securities are Guaranteed Securities) is a party or by which it is
bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such
Securities and any Coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit and, with respect to
defeasance only, at any time during the period ending on the 91st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under clause (2) of this Section 402,
the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Issuer or the Guarantor (if the
Securities are Guaranteed Securities) has received from the Internal
Revenue
49
Service a letter ruling, or there has been published by the Internal
Revenue Service a Revenue Ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had
not occurred.
(e) In the case of an election under clause (3) of this Section 402,
the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Outstanding
Securities and any Coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax
on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not
occurred.
(f) The Issuer or the Guarantor (if the Securities are Guaranteed
Securities) shall have delivered to the Trustee an Officers'
Certificate or a Guarantor's Certificate (if applicable) and an
Opinion of Counsel, each stating that all conditions precedent to
the defeasance or covenant defeasance under clause (2) or (3) of
this Section 402 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section 402(4),
such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Issuer or the Guarantor (if
the Securities are Guaranteed Securities) in connection therewith
pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003,
all money and Government Obligations (or other property as may be provided
pursuant to Section 301) (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
402(5) and Section 403, the "Trustee") pursuant to clause (4) of Section 402 in
respect of any Outstanding Securities of any series and any Coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any PAYING AGENT
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
50
Unless otherwise specified in or pursuant to this Indenture or any
Security, if, after a deposit referred to in Section 402(4)(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(4)(a) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(4)(a) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on, and
Additional Amounts, if any, with respect to, such Security as the same becomes
due out of the proceeds yielded by converting (from time to time as specified
below in the case of any such election) the amount or other property deposited
in respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on (x) in the
case of payments made pursuant to clause (a) above, the applicable market
exchange rate for such Currency in effect on the second Business Day prior to
each payment date, or (y) with respect to a Conversion Event, the applicable
market exchange rate for such Foreign Currency in effect (as nearly as feasible)
at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge, imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon receipt of an
Issuer Request, or the Guarantor, as the case may be, upon receipt of a
Guarantor Request, any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in clause (4) of this Section 402
which, in the opinion of a nationally recognized firm of Independent Public
Accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any PAYING AGENT (including the Issuer acting as its
own PAYING AGENT) as the Trustee may determine, to the Persons entitled thereto,
of the principal, premium, interest and Additional Amounts for whose payment
such money has or Government Obligations have been deposited with or received by
the Trustee; but such money and Government Obligations need not be segregated
from other funds except to the extent required by law.
51
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body), unless such event is specifically deleted or modified in or pursuant to
the supplemental indenture, Board Resolution or Officers' Certificate
establishing the terms of such Series pursuant to this Indenture:
(1) default in the payment of any installment of interest on or any
Additional Amounts payable in respect of any Security of such series when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of such series when it becomes due and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment when and as
due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities) in this Indenture, the Guarantee (if applicable) or the
Securities (other than a covenant or warranty a default in the performance or
the breach of which is elsewhere in this Section specifically dealt with or
which has been expressly included in this Indenture solely for the benefit of a
series of Securities other than such series), and continuance of such default or
breach for a period of 60 days after there has been given by registered or
certified mail, to the Issuer and the Guarantor (if the Securities of such
series are Guaranteed Securities) by the Trustee or to the Issuer, the Guarantor
(if the Securities of such series are Guaranteed Securities) and the Trustee by
the Holders of at least 25% in the principal amount of the outstanding
Securities of such series, a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) default under any evidence of recourse Indebtedness of the
Issuer or the Guarantor, or under any mortgage, indenture or other instrument of
the Issuer or the Guarantor (including a default with respect to Securities of
any series other than that series) under which there may be issued or by which
there may be secured any recourse Indebtedness of the Issuer or the Guarantor
(or by any Subsidiary, the repayment of which the Issuer has guaranteed or for
which the Issuer is directly responsible or liable as obligor or guarantor),
whether such Indebtedness now exists or shall hereafter be created, which
default shall constitute a failure to pay an aggregate principal amount
exceeding $5,000,000 of such Indebtedness when due and payable
52
after the expiration of any applicable grace period with respect thereto and
shall have resulted in such Indebtedness in an aggregate principal amount
exceeding $5,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without such
Indebtedness having been discharged, or such acceleration having been rescinded
or annulled, within a period of 10 days after there shall have been given, by
registered or certified mail, to the Issuer or the Guarantor, as the case may
be, by the Trustee or to the Issuer or the Guarantor, as the case may be, and
the Trustee by the Holders of at least 10% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
and requiring the Issuer or the Guarantor, as the case may be, to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder; or
(6) the Issuer or the Guarantor shall fail within 60 days to pay,
bond or otherwise discharge any uninsured judgment or court order for the
payment of money in excess of $5,000,000, which is not stayed on appeal or is
not otherwise being appropriately contested in good faith; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Issuer, the
Guarantor or any Significant Subsidiary of the Issuer or the
Guarantor in an involuntary proceeding under any applicable
bankruptcy, insolvency, reorganization or other similar law and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(b) a decree or order adjudging the Issuer, the Guarantor or any
Significant Subsidiary to be insolvent, or approving a petition
seeking reorganization, arrangement, adjustment or composition of
the Issuer, the Guarantor or any Significant Subsidiary and such
decree or order shall remain unstayed and in effect for a period of
60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of
the Issuer, the Guarantor or any Significant Subsidiary or of any
substantial part of the property of the Issuer, the Guarantor or any
Significant Subsidiary, as the case may be, or ordering the winding
up or liquidation of the affairs of the Issuer, the Guarantor or any
Significant Subsidiary; or
(8) the commencement by the Issuer, the Guarantor or any Significant
Subsidiary of a voluntary proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law or of a voluntary proceeding
seeking to be adjudicated insolvent or the consent by the Issuer, the Guarantor
or any Significant Subsidiary to the entry of a decree or order for relief in an
involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any insolvency
proceedings against it, or the filing by the Issuer, the Guarantor or any
Significant Subsidiary of a petition or answer or
53
consent seeking reorganization or relief under any applicable law, or the
consent by the Issuer, the Guarantor or any Significant Subsidiary to the filing
of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee or similar official of the Issuer, the
Guarantor or any Significant Subsidiary or any substantial part of the property
of the Issuer, the Guarantor or any Significant Subsidiary or the making by the
Issuer, the Guarantor or any Significant Subsidiary of an assignment for the
benefit of creditors, or the taking of corporate action by the Issuer, the
Guarantor or any Significant Subsidiary in furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at
the time Outstanding (other than an Event of Default specified in clause (7) or
(8) of Section 501) occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series may declare the principal amount of all the Securities of such series, or
such lesser amount as may be provided for in the Securities of such series, to
be due and payable immediately, by a notice in writing to the Issuer and the
Guarantor (if the Securities are Guaranteed Securities) (and to the Trustee if
given by the Holders), and upon any such declaration such principal or such
lesser amount shall become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall IPSO FACTO become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after Securities of any series have been accelerated and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Issuer, the Guarantor (if the Securities are
Guaranteed Securities) and the Trustee, may rescind and annul such acceleration
and its consequences if
(1) the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) has paid or deposited with the Trustee a sum of money sufficient to
pay
(a) all overdue installments of any interest on and Additional
Amounts with respect to all Securities of such series and any Coupon
appertaining thereto,
(b) the principal of and any premium on any Securities of such
series which have become due otherwise than by such acceleration and
interest thereon and any Additional Amounts with respect thereto at
the rate or rates borne by or provided for in such Securities,
54
(c) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue installments of any
interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
(d) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the
Trustee under Section 606; and
(2) all Events of Default with respect to Securities of such series,
other than the non-payment of the principal of, any premium and interest on, and
any Additional Amounts with respect to Securities of such series which shall
have become due solely by such acceleration, shall have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Issuer and the Guarantor each covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have become
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or any
premium on any Security at its Maturity,
If the Issuer or the Guarantor (if the Securities are Guaranteed Securities), as
the case may be shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts at
the rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount of money as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all other
amounts due to the Trustee under Section 606.
If the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) fails to pay the money it is required to pay the Trustee pursuant to
the preceding paragraph forthwith upon the demand of the Trustee, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the money so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Issuer or the Guarantor (if the Securities are Guaranteed Securities) or
any other obligor upon such Securities and any Coupons appertaining thereto
and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Issuer or the Guarantor (if the
55
Securities are Guaranteed Securities) or any other obligor upon such
Securities and any Coupons appertaining thereto, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any Coupons appertaining thereto by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or such Securities or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Issuer, the Guarantor (if the
Securities are Guaranteed Securities) or any other obligor upon the Securities
or the property of the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) or such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Issuer or the Guarantor (if the
Securities are Guaranteed Securities) for the payment of any overdue principal,
premium, interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
the principal and any premium, interest and Additional Amounts owing
and unpaid in respect of the Securities and any Coupons appertaining
thereto and to take such other actions and file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agents or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(2) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments
directly to the Holders of Securities or any Coupons, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and any other amounts due the
Trustee under Section 606.
56
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or any Coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or Coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or any related Guarantees or Coupons may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or Coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery or judgment, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, shall be for the ratable benefit of each and
every Holder of a Security or Coupon in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest
and Additional Amounts in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and
payable on such Securities and Coupons for principal and any
premium, interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of
such series;
57
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security to affect, disturb or prejudice the rights of
any other such Holders or Holders of Securities of any other series, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect to
such Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon (or,
in the case of redemption, on the Redemption Date or, in the case of repayment
at the option of such Holder if provided in or pursuant to this Indenture, on
the date such repayment is due) and to institute suit for the enforcement of any
such payment, and such right shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case the Issuer, the Guarantor (if the Security is a Guaranteed Security),
the Trustee and each such Holder shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and each such
Holder shall continue as though no such proceeding had been instituted.
58
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or Coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to each and every Holder of a Security or a Coupon is
intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not, to the extent permitted by law, prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or Coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or a Coupon may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such
action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences, except
a default
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(1) in the payment of the principal of, any premium or interest on,
or any Additional Amounts with respect to, any Security of such
series or any Coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Issuer and the Guarantor each covenants that (to the extent that
it may lawfully do so) it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Issuer and
the Guarantor each expressly waives (to the extent that it may lawfully do so)
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of any
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions
of this Section 515 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest, if any, on or Additional Amounts,
if any, with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment).
ARTICLE SIX
THE TRUSTEE
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Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture
Act:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or an Issuer Order or of
the Guarantor mentioned herein shall be sufficiently evidenced by a
Guarantor Request or Guarantor Order (in each case, other than
delivery of any Security or any Guarantee endorsed thereon, together
with any Coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of
the Board of Directors may be sufficiently evidenced by a Board
Resolution or by the Guarantor's Board of Directors may be
sufficiently evidenced by a Guarantor's Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence shall be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate or, if such matter pertains to the Guarantor, a
Guarantor's Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at
the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts 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
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examine, during business hours and upon reasonable notice, the
books, records and premises of the Issuer and the Guarantor,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the Trustee shall not be deemed to have knowledge of any event,
act or omission upon the occurrence of which it may be required to
take action hereunder unless one of its Responsible Officers has
actual knowledge thereof.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 703(3), notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any),
or interest, if any, on, or Additional Amounts or any sinking fund or purchase
fund installment with respect to, any Security of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the best interest of the Holders of Securities and Coupons
of such series; and PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(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. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Issuer or the Guarantor (if the Securities are Guaranteed
Securities), as the case may be, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or any related Guarantees endorsed thereon or any Coupons, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on
Form T-1 supplied to the Issuer are true and accurate, subject to the
qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Issuer of the
Securities or the proceeds thereof.
Section 604. May Hold Securities.
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The Trustee, any Authenticating Agent, any PAYING AGENT, any
Security Registrar or any other Person that may be an agent of the Trustee or
the Guarantor or the Issuer, in its individual or any other capacity, may become
the owner or pledgee of Securities or Coupons and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Issuer, or the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, PAYING AGENT, Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by
the Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law and shall be held uninvested. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Issuer or the Guarantor.
Section 606. Compensation and Reimbursement.
The Issuer and the Guarantor each agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee hereunder (which
compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to the Trustee's negligence or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending
themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties hereunder,
except to the extent that any such loss, liability or expense was
due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Issuer and
the Guarantor under this Section, the Trustee shall have a lien prior to the
Securities of any series upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of, and
premium or interest on or any Additional Amounts with respect to Securities or
any Coupons appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable
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bankruptcy or insolvency law. "Trustee" for purposes of this Section 606 shall
include any predecessor Trustee but the negligence or bad faith of any Trustee
shall not affect the rights of any other Trustee under this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a
Corporation, organized and doing business under the laws of the United States of
America, any state thereof or the District of Columbia, eligible under Section
310(a)(1) of the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $50,000,000 subject to supervision or examination by Federal or
state authority. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Issuer
and the Guarantor (if the Securities are Guaranteed Securities). If the
instrument of acceptance by a successor Trustee required by Section 609 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(3) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and the
Issuer and the Guarantor (if the Securities are Guaranteed Securities).
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect
to Securities of any series after written request therefor by the
Issuer, the Guarantor (if the Securities are Guaranteed Securities)
or any Holder of a Security of such series who has been a bona fide
Holder of a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Issuer,
the Guarantor (if the Securities are Guaranteed Securities) or any
such Holder, or
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(c) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer, by or pursuant to a Board Resolution, or
the Guarantor (if the Securities are Guaranteed Securities), by or pursuant to a
Guarantor's Board Resolution, may remove the Trustee with respect to all
Securities or the Securities of such series, or (ii) subject to Section 315(e)
of the Trust Indenture Act, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Issuer, by or pursuant to a
Board Resolution, and the Guarantor (if the Securities are Guaranteed
Securities), by or pursuant to a Guarantor's Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Securities of that
or those series (it being understood that any such successor Trustee may be
appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 609. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 609, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Issuer and the Guarantor (if the Securities
are Guaranteed Securities). If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Issuer and the
Guarantor (if the Securities are Guaranteed Securities) or the Holders of
Securities and accepted appointment in the manner required by Section 609, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(6) The Issuer shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Registered Securities, if any, of such series as their names and
addresses appear in the Security Register and, if Securities of such series are
issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United States.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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Section 609. Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Issuer, the Guarantor and the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties hereunder of the retiring Trustee; but, on the
request of the Issuer, the Guarantor or such successor Trustee, such retiring
Trustee, upon payment of its charges, shall execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and, subject to Section 1003, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(2) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Issuer, the
Guarantor (if any of such series of Securities is a series of Guaranteed
Securities), the retiring Trustee and such successor Trustee shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
Trustee shall be responsible for any notice given to, or received by, or any act
or failure to act on the part of any other Trustee hereunder, and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein, such retiring Trustee shall have no further responsibility for the
exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Issuer, the Guarantor,
if applicable, or such successor Trustee, such retiring Trustee, upon payment of
its charges with respect to the Securities of that or those series to which the
appointment of such successor relates and subject to Section 1003 shall duly
assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such
retiring Trustee hereunder
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with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, subject to its claim, if any, provided for in
Section 606.
(3) Upon request of any Person appointed hereunder as a successor
Trustee, the Issuer and the Guarantor shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (1) or (2) of this
Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated
but not delivered by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable
to the Issuer with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that or
those series issued upon original issue, exchange, registration of transfer,
partial redemption or partial repayment or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and the
Guarantor and, except as provided in or pursuant to this Indenture, shall at all
times be a corporation that would be permitted by the Trust Indenture Act to act
as trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
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Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall be the successor of such Authenticating Agent hereunder, PROVIDED such
Corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee, the Guarantor and the Issuer. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent, the Guarantor and the Issuer. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and the Guarantor
and shall (i) mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the series
with respect to which such Authenticating Agent shall serve, as their names and
addresses appear in the Security Register, and (ii) if Securities of the series
are issued as Bearer Securities, publish notice of such appointment at least
once in an Authorized Newspaper in the place where such successor Authenticating
Agent has its principal office if such office is located outside the United
States. Any successor Authenticating Agent, upon acceptance of its appointment
hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Issuer and the Guarantor each agrees to pay each Authenticating
Agent from time to time reasonable compensation for its services under this
Section. If the Trustee makes such payments, it shall be entitled to be
reimbursed for such payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to
each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series may
have endorsed thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
State Street Bank and Trust Company,
As Trustee
By
-----------------------------
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As Authenticating Agent
By
-----------------------------
Authorized Officer
If all of the Securities of any series may not be originally issued
at one time, and if the Trustee does not have an office capable of
authenticating Securities upon original issuance located in a Place of Payment
where the Issuer wishes to have Securities of such series authenticated upon
original issuance, the Trustee, if so requested in writing (which writing need
not be accompanied by or contained in an Officers' Certificate by the Issuer),
shall appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Issuer with respect to such
series of Securities.
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
Section 701. Issuer and the Guarantor to Furnish Trustee Names and
Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Issuer and the Guarantor (with respect to Securities of each series that are
Guaranteed Securities) shall furnish or cause to be furnished to the Trustee
(1) semi-annually with respect to Securities of each series not
later than March 1 and September 1 of the year or upon such other
dates as are set forth in or pursuant to the Board Resolution or
indenture supplemental hereto authorizing such series, a list, in
each case in such form as the Trustee may reasonably require, of the
names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer or the Guarantor
(with respect to Securities of each series that are Guaranteed
Securities) of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished,
PROVIDED, HOWEVER, that so long as the Trustee is the Security Registrar no such
list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it
pursuant to Section 312 of the Trust Indenture Act.
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Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Issuer, the Guarantor and the Trustee that neither the
Issuer, the Guarantor, the Trustee, any PAYING AGENT or any Security Registrar
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 312(c) of the Trust Indenture Act, regardless of the source from which
such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(1) Within 60 days after March 1 of each year commencing with the
first March 1 following the first issuance of Securities pursuant to Section
301, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report
dated as of such March 1 with respect to any of the events specified in said
Section 313(a) which may have occurred since the later of the immediately
preceding March 1 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
Section 704. Reports by Issuer and Guarantor.
The Issuer and the Guarantor, pursuant to Section 314(a) of the
Trust Indenture Act, shall:
(1) file with the Trustee, within 15 days after the Issuer or the
Guarantor, as the case may be, is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer or the
Guarantor, as the case may be, may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Issuer or the Guarantor, as the case may be, is not required to file
information, documents or reports pursuant to either of said Sections, then it
shall file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Issuer or the Guarantor, as the case may be, with the conditions and covenants
of this Indenture as may be required from time to time by such rules and
regulations; and
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(3) transmit within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports required
to be filed by the Issuer or the Guarantor pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from time to
time by the Commission.
ARTICLE EIGHT
MERGER, CONSOLIDATION OR SALE
Section 801. Issuer May Consolidate, etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Issuer with or into any other
Person or Persons (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which either the Issuer will be the continuing
entity or the Issuer or its successor or successors shall be a party or parties,
or shall prevent any conveyance, transfer or lease all or substantially all of
the properties and assets of the Issuer, to any other Person (whether or not
affiliated with the Issuer); PROVIDED, HOWEVER, that:
(1) in case the Issuer shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its properties
and assets to any Person, the entity formed by such consolidation or into which
the Issuer is merged or the Person which acquires by conveyance or transfer, or
which leases, all or substantially all of the properties and assets of the
Issuer shall be a Corporation or partnership organized and existing under the
laws of the United States of America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture (or indentures, if at such
time there is more than one Trustee) supplemental hereto, executed by the
successor Person and the Guarantor and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of,
any premium and interest on and any Additional Amounts with respect to all the
Securities and the performance of every obligation in this Indenture and the
Outstanding Securities on the part of the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would become an
Event of Default, shall have occurred and be continuing; and
(3) either the Issuer or the successor Person shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
No such consolidation, merger, conveyance, transfer or lease shall be permitted
by this Section unless prior thereto the Guarantor shall have delivered to the
Trustee a Guarantor's Officers'
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Certificate and an Opinion of Counsel, each stating that the Guarantor's
obligations hereunder shall remain in full force and effect thereafter.
Section 802. Successor Person Substituted for Issuer.
Upon any consolidation by the Issuer with or merger of the Issuer
into any other Person or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Issuer to any Person in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Issuer is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as if
such successor Person had been named as the Issuer herein; and thereafter,
except in the case of a lease, the predecessor Person shall be released from all
obligations and covenants under this Indenture, the Securities and the Coupons.
Section 803. Guarantor May Consolidate, etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities
shall prevent any consolidation or merger of the Guarantor with or into any
other Person or Persons (whether or not affiliated with the Guarantor), or
successive consolidations or mergers in which either the Guarantor will be the
continuing entity or the Guarantor or its successor or successors shall be a
party or parties, or shall prevent any conveyance, transfer or lease all or
substantially all of the properties and assets of the Guarantor, to any other
Person (whether or not affiliated with the Guarantor); PROVIDED, HOWEVER, that:
(1) in case the Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such consolidation or
into which the Guarantor is merged or the Person which acquires by conveyance or
transfer, or which leases, all or substantially all of the properties and assets
of the Guarantor shall be a Corporation organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia and
shall expressly assume, by an indenture (or indentures, if at such time there is
more than one Trustee) supplemental hereto, executed and delivered by the Issuer
and the successor Person to the Trustee, in form satisfactory to the Trustee,
the obligations of the Guarantor under the Guarantees and the performance of
every other covenant of this Indenture on the part of the Guarantor to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(3) each of the Guarantor and the successor Person has delivered to
the Trustee a Guarantor's Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with.
Section 804. Successor Person Substituted for Guarantor.
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Upon any consolidation or merger or any conveyance, transfer or
lease all or substantially all of the properties and assets of the Guarantor to
any Person in accordance with Section 803, the successor Person formed by such
consolidation or into which the Guarantor is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Guarantor under this Indenture with the
same effect as if such successor Person had been named as the Guarantor herein,
and thereafter, except in the case of a lease to another Person, the predecessor
Person shall be released from all obligations and covenants under this
Indenture.
Section 805. Assumption by Guarantor.
The Guarantor, or a subsidiary thereof that is a Corporation, may
directly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of, any premium and interest on and any Additional Amounts with
respect to all the Guaranteed Securities and the performance of every covenant
of this Indenture on the part of the Issuer to be performed or observed. Upon
any such assumption, the Guarantor or such subsidiary shall succeed to, and be
substituted for and may exercise every right and power of, the Issuer under this
Indenture with the same effect as if the Guarantor or such subsidiary had been
named as the Issuer herein and the Issuer shall be released from all obligations
and covenants with respect to the Guaranteed Securities. No such assumption
shall be permitted unless the Guarantor has delivered to the Trustee (i) a
Guarantor's Officers' Certificate and an Opinion of Counsel, each stating that
such assumption and supplemental indenture comply with this Article, and that
all conditions precedent herein provided for relating to such transaction have
been complied with and that, in the event of assumption by a subsidiary, the
Guarantees and all other covenants of the Guarantor herein remain in full force
and effect and (ii) an opinion of independent counsel that the Holders of
Guaranteed Securities or related Coupons (assuming such Holders are only taxed
as residents of the United States) shall have no United States federal tax
consequences as a result of such assumption and that if any Securities are then
listed on the New York Stock Exchange that such Securities shall not be delisted
as a result of such assumption.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Issuer (when authorized by or pursuant to a Board Resolution), the Guarantor
(when authorized by a Guarantor's Board Resolution) and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Issuer or
the Guarantor, and the assumption by any such successor of the covenants of the
Issuer or the Guarantor, as the case may be, contained herein, in the Securities
and any Guarantees endorsed thereon; or
(2) to add to the covenants of the Issuer or the Guarantor for the
benefit of the Holders of all or any series of Securities (as shall be specified
in such supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Issuer or the Guarantor; or
(3) to add any additional Events of Default with respect to all or
any series of Securities (as shall be specified in such supplemental indenture);
or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of, any premium or
interest on or any Additional Amounts with respect to Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to permit
Bearer Securities to be exchanged for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Securities of any series or any Coupons appertaining
thereto in any material respect; or
(5) to secure the Securities; or
(6) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto 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 609;
or
(8) to cure any ambiguity or to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not adversely affect the interests of the
Holders of Securities of any series then Outstanding or any Coupons appertaining
thereto in any material respect; or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, PROVIDED that
any such action shall not adversely affect the interests of any Holder of a
Security of such series and any Coupons appertaining thereto or any other
Security or Coupon in any material respect; or
(10) to effect the assumption by the Guarantor or a subsidiary
thereof pursuant to Section 805; or
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(11) to amend or supplement any provision contained herein or in any
supplemental indenture, PROVIDED that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities then
Outstanding.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) and the Trustee, the
Issuer (when authorized by or pursuant to a Board Resolution), the Guarantor
(when authorized by or pursuant to a Guarantor's Board Resolution), if
applicable, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture or of the Securities of such series; PROVIDED, HOWEVER,
that no such supplemental indenture, without the consent of the Holder of each
Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium
or installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify the
calculation of such rate) of interest thereon or any Additional Amounts with
respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Issuer to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or change the redemption provisions or
adversely affect the right of repayment at the option of any Holder as
contemplated by Article Thirteen, or change the Place of Payment, Currency in
which the principal of, any premium or interest on, or any Additional Amounts
with respect to any Security is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in the case
of repayment at the option of the Holder, on or after the date for repayment or
in the case of change in control), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify or effect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor under the related Guarantees
in respect of the due and punctual payments of principal of, or any premium or
interest on or any sinking fund requirements or Additional Amounts with respect
to, Guaranteed Securities, or
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(4) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall
be entitled to receive, and (subject to Section 315 of the Trust Indenture Act)
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Issuer shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Issuer, to any such supplemental indenture may be
prepared and executed by the Issuer and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 906. Conformity with Trust Indenture Act.
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Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Issuer covenants and agrees for the benefit of the Holders of
the Securities of each series that it will duly and punctually pay the principal
of, any premium and interest on and any Additional Amounts with respect to the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer Security
on or before the Maturity thereof, and any Additional Amounts payable with
respect to such interest, shall be payable only upon presentation and surrender
of the Coupons appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Issuer or the Guarantor
(if any Guaranteed Securities are Outstanding) in respect of the Securities of
such series (and any related Guarantees endorsed thereon) relating thereto and
this Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Issuer shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment for such series
which is located outside the United States where Securities of such series and
any Coupons appertaining thereto may be presented and surrendered for payment;
PROVIDED, HOWEVER, that if the Securities of such series are listed on The Stock
Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Issuer shall maintain a PAYING AGENT
in London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of such series are listed
on such exchange. The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) will give prompt written notice to the Trustee of the location, and
any change in the location, of such Office or Agency. If at any time the Issuer
or the Guarantor shall fail to maintain any such required Office or Agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of such series and any
Coupons appertaining thereto may be presented and surrendered for payment at the
place specified for the purpose with respect to such Securities as provided in
or pursuant to this
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Indenture, and the Issuer and the Guarantor each hereby appoints the Trustee as
its agent to receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; PROVIDED, however, if
amounts owing with respect to any Bearer Securities shall be payable in Dollars,
payment of principal of, any premium or interest on and any Additional Amounts
with respect to any such Security may be made at the Corporate Trust Office of
the Trustee or any Office or Agency designated by the Issuer in the Borough of
Manhattan, The City of New York, if (but only if) payment of the full amount of
such principal, premium, interest or Additional Amounts at all offices outside
the United States maintained for such purpose by the Issuer in accordance with
this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) may also from time to time designate one or more other Offices or
Agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; PROVIDED, HOWEVER, that no such designation or rescission shall in
any manner relieve the Issuer or the Guarantor (if any Guaranteed Securities are
outstanding) of its obligation to maintain an Office or Agency in each Place of
Payment for Securities of any series for such purposes. The Issuer or the
Guarantor (if any Guaranteed Securities are Outstanding) shall give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other Office or Agency. Unless otherwise
provided in or pursuant to this Indenture, the Issuer and the Guarantor (with
respect to any Guaranteed Securities) each hereby designates as the Place of
Payment for each series of Securities the Borough of Manhattan, The City of New
York and the location of the Corporate Trust office and initially appoints the
State Street Bank and Trust Company, N.A. at 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000 as the Office or Agency of the Issuer or the Guarantor (with respect to
any Guaranteed Securities), as the case may be, for such purpose. The Issuer or
the Guarantor, as the case may be, may subsequently appoint a different Office
or Agency in the Borough of Manhattan, The City of New York for the Securities
of any series.
Unless otherwise specified with respect to any Securities pursuant
to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of this Indenture, then
the Issuer will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Issuer shall at any time act as its own PAYING AGENT with
respect to any series of Securities, it shall, on or before each due date of the
principal of, any premium or interest on or Additional Amounts with respect to
any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the currency or currencies,
currency
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unit or units or composite currency or currencies in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided, and shall
promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more PAYING AGENTS for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any PAYING AGENT a sum (in the currency
or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any
premium, interest or Additional Amounts so becoming due, such sum to be held in
trust for the benefit of the Persons entitled thereto, and (unless such PAYING
AGENT is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
The Issuer shall cause each PAYING AGENT for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such PAYING AGENT shall agree with the Trustee, subject to
the provisions of this Section, that such PAYING AGENT shall:
(1) hold all sums held by it for the payment of the principal of,
any premium or interest on or any Additional Amounts with respect to Securities
of such series in trust for the benefit of the Persons entitled thereto until
such sums shall be paid to such Persons or otherwise disposed of as provided in
or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Issuer or the
Guarantor (or any other obligor upon the Securities of such series) in the
making of any payment of principal, any premium or interest on or any Additional
Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such PAYING AGENT.
The Issuer or the Guarantor (if the related Securities are
Guaranteed Securities) may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order or Guarantor Order, as the case may be, direct any PAYING AGENT
to pay, to the Trustee all sums held in trust by the Issuer or such PAYING
AGENT, such sums to be held by the Trustee upon the same terms as those upon
which such sums were held by the Issuer or such PAYING AGENT; and, upon such
payment by any PAYING AGENT to the Trustee, such PAYING AGENT shall be released
from all further liability with respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any PAYING AGENT, or then held by the Issuer, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any Security of any series or any Coupon
appertaining thereto and remaining unclaimed for two years after
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such principal or any such premium or interest or any such Additional Amounts
shall have become due and payable shall be paid to the Issuer on Issuer Request
(or if deposited by the Guarantor, paid to the Guarantor on Guarantor Request),
or (if then held by the Issuer) shall be discharged from such trust; and the
Holder of such Security or any Coupon appertaining thereto shall thereafter, as
an unsecured general creditor, look only to the Issuer and the Guarantor (if the
Securities are Guaranteed Securities) for payment thereof, and all liability of
the Trustee or such PAYING AGENT with respect to such trust money, and all
liability of the Issuer as trustee thereof, shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such PAYING AGENT, before being required to make
any such repayment, may at the expense of the Issuer cause to be published once,
in an Authorized Newspaper in each Place of Payment for such series or to be
mailed to Holders of Registered Securities of such series, or both, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing nor
shall it be later than two years after such principal and any premium or
interest or Additional Amounts shall have become due and payable, any unclaimed
balance of such money then remaining will be repaid to the Issuer or the
Guarantor, as the case may be.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) each agree to pay to the Holder of any such Security or any Coupon
appertaining thereto Additional Amounts as provided in or pursuant to this
Indenture or such Securities. Whenever in this Indenture there is mentioned, in
any context, the payment of the principal of or any premium or interest on, or
in respect of, any Security of any series or any Coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
by the terms of such series established hereby or pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms, and express mention of the payment of
Additional Amounts (if applicable) in any provision hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise provided in or pursuant to this Indenture or the
Securities of the applicable series, if the Securities of a series provide for
the payment of Additional Amounts, at least 10 days prior to the first Interest
Payment Date with respect to such series of Securities (or if the Securities of
such series shall not bear interest prior to Maturity, the first day on which a
payment of principal is made), and at least 10 days prior to each date of
payment of principal or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the Issuer
or the Guarantor, as the case may be, shall furnish to the Trustee and the
principal PAYING AGENT or Paying Agents, if other than the Trustee, an Officers'
Certificate instructing the Trustee and such PAYING AGENT or Paying Agents
whether such payment of principal of and premium, if any, or interest on the
Securities of such series shall be made to Holders of Securities of such series
or the Coupons appertaining thereto who are United States Aliens without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of such series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on
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such payments to such Holders of Securities or Coupons, and the Issuer and the
Guarantor (if the Securities are Guaranteed Securities) each agree to pay to the
Trustee or such PAYING AGENT the Additional Amounts required by the terms of
such Securities. The Issuer and the Guarantor each covenant to indemnify the
Trustee and any PAYING AGENT for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
Section 1005. Maintenance of Properties.
Each of the Issuer and the General Partner will cause all of its
material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer and the General Partner may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that the
Issuer, the General Partner and any Subsidiary shall not be prevented from
selling or otherwise disposing for value their respective properties except as
otherwise provided in Article Eight.
Section 1006. Insurance.
The Issuer and the General Partner will, and will cause each of
their respective Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value with
insurers of recognized responsibility and having a rating of at least A:VIII in
Best's Key Rating Guide.
Section 1007. Corporate Existence.
Subject to Article Eight, each of the Issuer and the General Partner
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights and franchises; PROVIDED, HOWEVER, that
neither the Issuer nor the General Partner shall be required to preserve any
right or franchise if it determines that the preservation thereof is no longer
desirable in the conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Holders of Securities.
Section 1008. Payment of Taxes and Other Claims.
Each of the Issuer and the Guarantor will pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (1) all
taxes, assessments and governmental charges levied or imposed upon them or any
Subsidiary or upon the income, profits or property of the Issuer, the Guarantor
or any Subsidiary, and (2) all lawful claims for labor, materials and supplies
which, if unpaid, might by law become a lien upon the property of the Issuer,
the Guarantor or any Subsidiary; PROVIDED, HOWEVER, that neither the Issuer nor
the Guarantor shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or
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claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
Section 1009. Provision of Financial Information.
Whether or not the Issuer or the Guarantor is subject to Section 13
or 15(d) of the Exchange Act and for so long as any Securities are outstanding,
the Issuer and the Guarantor will, to the extent permitted under the Exchange
Act, file with the Commission the annual reports, quarterly reports and other
documents which the Issuer and the Guarantor would have been required to file
with the Commission pursuant to such Section 13 or 15(d) (the "Financial
Statements") if the Issuer or the Guarantor were so subject, such documents to
be filed with the Commission on or prior to the respective dates (the "Required
Filing Dates") by which the Issuer and the Guarantor would have been required so
to file such documents if the Issuer were so subject.
The Issuer and the Guarantor will also in any event (x) within 15
days of each Required Filing Date (i) transmit by mail to all Holders, as their
names and addressed appear in the Security Register, without cost to such
Holders copies of the annual reports and quarterly reports which the Issuer and
the Guarantor would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Issuer or the Guarantor were
subject to such Sections, and (ii) file with the Trustee, copies of the annual
reports, quarterly reports and other documents which the Issuer and the
Guarantor would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Issuer or the Guarantor were
subject to such Sections and (y) if filing such documents by the Issuer or the
Guarantor with the Commission is not permitted under the Exchange Act, promptly
upon written request and payment of the reasonable cost of duplication and
delivery, supply copies of such documents to any prospective Holder.
Section 1010. Limitations on Incurrence of Indebtedness.
(a) The Issuer will not, and will not permit any Subsidiary to,
incur any Indebtedness, other than Permitted Indebtedness, if, immediately after
giving effect to the incurrence of such additional Indebtedness, the aggregate
principal amount of all outstanding Indebtedness of the Issuer and its
Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than 60% of the sum of (i) the Total Assets as of the end of the
calendar quarter covered in the Issuer's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with the Trustee)
prior to the incurrence of such additional Indebtedness and (ii) any increase in
the Total Assets since the end of such quarter including, without limitation,
any increase in Total Assets resulting from the incurrence of such additional
Indebtedness (such increase together with the Total Assets being referred to as
the "Adjusted Total Assets").
(b) In addition to the other limitations set forth in this Section
1010, the Issuer will not, and will not permit any Subsidiary to, incur any
Indebtedness if, for the period consisting of the four consecutive fiscal
quarters most recently ended prior to the date on which such
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additional Indebtedness is to be incurred, the ratio of Consolidated Income
Available for Debt Service to the Annual Service Charge shall have been less
than 2.0 to 1, on a pro forma basis after giving effect to the incurrence of
such Indebtedness and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Indebtedness and any other
Indebtedness incurred by the Issuer or its Subsidiaries since the first day of
such four-quarter period and the application of the proceeds therefrom,
including to refinance other Indebtedness, had occurred at the beginning of such
period, (ii) the repayment or retirement of any other Indebtedness by the Issuer
or its Subsidiaries since the first day of such four-quarter period had been
incurred, repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such period), (iii) any income earned as a result of any
increase in Adjusted Total Assets since the end of such four-quarter period had
been earned, on an annualized basis, during such period, and (iv) in the case of
an acquisition or disposition by the Issuer or any Subsidiary of any asset or
group of assets since the first day of such four-quarter period, including,
without limitation, by merger, stock purchase or sale, or asset purchase or
sale, such acquisition or disposition or any related repayment of Indebtedness
had occurred as of the first day of such period with the appropriate adjustments
with respect to such acquisition or disposition being included in such pro forma
calculation.
(c) In addition to the other limitations set forth in this Section
1010, the Issuer will not, and will not permit any Subsidiary to, incur any
Secured Indebtedness, whether owned at the date hereof or hereafter acquired,
if, immediately after giving effect to the incurrence of such additional Secured
Indebtedness, the aggregate principal amount of all outstanding Secured
Indebtedness of the Issuer and its Subsidiaries on a consolidated basis is
greater than 40% of the Adjusted Total Assets.
(d) For purposes of this Section 1010, Indebtedness shall be deemed
to be "incurred" by the Issuer or its Subsidiaries on a consolidated basis
whenever the Issuer and its Subsidiaries on a consolidated basis shall create,
assume, guarantee or otherwise become liable in respect thereof.
Section 1011. Restrictions on Dividends and Other Distributions.
The Issuer will not make any distribution, by reduction of capital
or otherwise (other than distributions payable in securities evidencing
interests in the Issuer's capital for the purpose of acquiring interests in real
property or otherwise) unless, immediately after giving pro forma effect to such
distribution, (a) no default hereunder or event of default under any mortgage,
indenture or instrument under which there may be issued, or by which there may
be secured or evidenced, any Indebtedness of the Issuer, the Guarantor or any
Subsidiary shall have occurred or be continuing and (b) the aggregate sum of all
distributions made after the date hereof shall not exceed the sum of (i) 95% of
the aggregate cumulative Funds From Operations of the Issuer accrued on a
cumulative basis from the date hereof until the end of the last fiscal quarter
prior to the contemplated payment, and (ii) the aggregate Net Cash Proceeds
received by the Issuer after the date hereof from the issuance and sale of
Capital Stock of the Issuer or the General Partner to the extent such proceeds
are contributed to the Issuer; provided, however, that the foregoing
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limitation shall not apply to any distribution or other action which is
necessary to maintain the General Partner's status as a REIT under the Code, if
the aggregate principal amount of all outstanding Indebtedness of the General
Partner and the Issuer on a consolidated basis at such time is less than 60% of
Adjusted Total Assets.
Notwithstanding the foregoing, the Issuer will not be prohibited
from making the payment of any distribution within 30 days of the declaration
thereof if at such date of declaration such payment would have complied with the
provisions of the immediately preceding paragraph.
Section 1012. Waiver of Certain Covenants.
The Issuer or the Guarantor, as the case may be, may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1005, 1006, 1007, 1008, 1009, 1010 and 1011 with respect to the
Securities of any series (or other provisions made applicable to such Securities
pursuant to Section 301) if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the Guarantor and the duties
of the Trustee in respect of any such term, provision or condition shall remain
in full force and effect.
Section 1013. Issuer Statement as to Compliance; Notice of Certain
Defaults.
(1) The Issuer shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement (which need not be contained in
or accompanied by an Officers' Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer of
the General Partner acting in its capacity as the sole managing general partner
of the Issuer, stating that
(a) a review of the activities of the Issuer during such year and of
its performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Issuer has complied with all the conditions and covenants
imposed on it under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and
is continuing, specifying each such event known to him and the
nature and status thereof.
(2) The Issuer shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any Event of Default or any event
which after notice or lapse of time or both would become an Event of Default
pursuant to clause (4) of Section 501.
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Section 1014. Guarantor Statement as to Compliance; Notice of
Certain Defaults.
(1) The Guarantor shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not be
contained in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Guarantor, stating that
(a) a review of the activities of the Guarantor during such year and
of performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Guarantor has complied with conditions and covenants imposed on
it under this Indenture throughout such year, or, if there has been
a default in the fulfillment of any such condition or covenant,
specifying each such default known to him or her and the nature and
status thereof, and (b) no event has occurred and is continuing
which constitutes, or which after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the
nature and status thereof.
(2) The Guarantor shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any event which after notice or
lapse of time or both would become an Event of Default pursuant to clause (4) of
Section 501.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Issuer
as permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Issuer to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Issuer of (a) less than all of the Securities of any series or
(b) all of the Securities of any series, with the same issue date, interest rate
or formula, Stated Maturity and other terms, the Issuer shall, at least 45 days
prior to the Redemption Date fixed by the Issuer (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
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If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; PROVIDED, HOWEVER, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security of
such series established herein or pursuant hereto.
The Trustee shall promptly notify the Issuer and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to
the Holders of Securities to be redeemed. Failure to give notice by mailing in
the manner herein provided to the Holder of any Registered Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
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(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed, and,
if applicable, that interest thereon shall cease to accrue on and after said
date,
(6) the place or places where such Securities, together (in the case
of Bearer Securities) with all Coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be accompanied
by all Coupons maturing subsequent to the date fixed for redemption or the
amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Issuer, the
Trustee and any PAYING AGENT is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Issuer, on which such exchanges may be made,
(10) the CUSIP number or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Issuer shall be given by the Issuer or, at the Issuer's request, by the
Trustee in the name and at the expense of the Issuer.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 1104, with the Trustee or with a PAYING AGENT (or, if the Issuer is
acting as its own PAYING AGENT, segregate and hold in trust as provided in
Section 1003) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date, unless otherwise specified pursuant to Section 301 or in the
Securities of such series) any accrued interest on and Additional Amounts with
respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
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Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Issuer shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Issuer at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; PROVIDED, HOWEVER, that, except
as otherwise provided in or pursuant to this Indenture or the Bearer Securities
of such series, installments of interest on Bearer Securities whose Stated
Maturity is on or prior to the Redemption Date shall be payable only upon
presentation and surrender of Coupons for such interest (at an Office or Agency
located outside the United States except as otherwise provided in Section 1002),
and PROVIDED, FURTHER, that, except as otherwise specified in or pursuant to
this Indenture or the Registered Securities of such series, installments of
interest on Registered Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such missing
Coupon or Coupons may be waived by the Issuer and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any PAYING AGENT harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any PAYING AGENT any such missing Coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that any interest or Additional Amounts represented by Coupons shall be
payable only upon presentation and surrender of those Coupons at an Office or
Agency for such Security located outside of the United States except as
otherwise provided in Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall
be surrendered at any Office or Agency for such Security (with, if the Issuer or
the Trustee so requires, due endorsement by, or a written instrument of transfer
in form satisfactory to the Issuer and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Registered Security or Securities of the same
series (which, if any
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such Registered Security is a Guaranteed Security, shall have the related
Guarantee endorsed thereon), containing identical terms and provisions, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Security in global form is so surrendered, the
Issuer shall execute, and the Trustee shall authenticate and deliver to the U.S.
Depository or other Depository for such Security in global form as shall be
specified in the Issuer Order with respect thereto to the Trustee, without
service charge, a new Security (which, if such Security is a Guaranteed Security
shall have the related Guarantee endorsed thereon) in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series, except as otherwise permitted
or required in or pursuant to this Indenture or any Security of such series
issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series and this Indenture.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Issuer may, in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of any series to be made pursuant to
the terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Issuer), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities of
such series which have been redeemed either at the election of the Issuer
pursuant to the terms of such series of Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, PROVIDED that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be
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less than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Issuer Request, and such cash payment shall be held by
the Trustee or a PAYING AGENT and applied to the next succeeding sinking fund
payment, PROVIDED, HOWEVER, that the Trustee or such PAYING AGENT shall at the
request of the Issuer from time to time pay over and deliver to the Issuer any
cash payment so being held by the Trustee or such PAYING AGENT upon delivery by
the Issuer to the Trustee of Securities of that series purchased by the Issuer
having an unpaid principal amount equal to the cash payment requested to be
released to the Issuer.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for
any series of Securities, the Issuer shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Issuer shall thereupon be obligated to pay the amount therein specified. Not
less than 60 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Issuer in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Issuer, at its option, shall
deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1301, in connection with any repayment of Securities, the Issuer
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the Issuer
on repayment of such Securities, and the obligation of the
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Issuer to pay the repayment price of such Securities shall be satisfied and
discharged to the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series or pursuant to
this Indenture or the Securities, any amount in respect of any Security
denominated in a Currency other than Dollars shall be treated for any such
action or distribution as that amount of Dollars that could be obtained for such
amount on such reasonable basis of exchange and as of the record date with
respect to Registered Securities of such series (if any) for such action,
determination of rights or distribution (or, if there shall be no applicable
record date, such other date reasonably proximate to the date of such action,
determination of rights or distribution) as the Issuer or the Guarantor may
specify in a written notice to the Trustee or, in the absence of such written
notice, as the Trustee may determine.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1502. Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such place outside the United States as the
Trustee shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
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(2) In case at any time the Issuer (by or pursuant to a Board
Resolution), the Guarantor (if the Securities are Guaranteed Securities), by or
pursuant to a Guarantor's Board Resolution or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of or made the first publication of the
notice of such meeting within 21 days after receipt of such request (whichever
shall be required pursuant to Section 106) or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the Issuer, the Guarantor,
if applicable, or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York, or, if Securities of such series are
to be issued as Bearer Securities, in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in clause (1) of
this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel, any representatives of the Guarantor and its
counsel and any representatives of the Issuer and its counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(1), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be
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adopted only by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Securities of that series; PROVIDED, HOWEVER, that,
except as limited by the proviso to Section 902, any resolution with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
Act which this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage, other than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented at
the meeting.
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(2) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Holders of Securities as provided in Section 1502(2), in which
case the Issuer, the Guarantor or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(3) At any meeting, each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; PROVIDED, HOWEVER, that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
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(4) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuer and the Guarantor, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE
Section 1601. Guarantee.
A Guarantee shall only be in effect with respect to Securities of a
series when such Guarantee is made applicable to such series in accordance with
Section 301 and such Guarantee is duly executed in accordance with Section 303.
The Guarantor hereby unconditionally guarantees to each Holder of a Guaranteed
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of, any premium and interest on, and any Additional Amounts
with respect to such Guaranteed Security and the due and punctual payment of the
sinking fund payments (if any) provided for pursuant to the terms of such
Guaranteed Security, when and as the same shall become due and payable, whether
at maturity, by acceleration, redemption, repayment or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure of
the Issuer punctually to pay any such principal, premium, interest, Additional
Amounts or sinking fund payment, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable,
whether at maturity, upon
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acceleration, redemption, repayment or otherwise, and as if such payment were
made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder and under
any Guarantee shall be as principal and not merely as surety, and shall be
absolute, irrevocable and unconditional, irrespective of, and shall be
unaffected by, any invalidity, irregularity or unenforceability of any
Guaranteed Security or this Indenture, any failure to enforce the provisions of
any Guaranteed Security or this Indenture, or any waiver, modification, consent
or indulgence granted with respect thereto by the Holder of such Guaranteed
Security or the Trustee, the recovery of any judgment against the Issuer or any
action to enforce the same, or any other circumstances which may otherwise
constitute a legal or equitable discharge of a surety or guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of merger, insolvency or bankruptcy of the
Issuer, any right to require a proceeding first against the Issuer, protest or
notice with respect to any such Guaranteed Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that the Guarantees
will not be discharged except by payment in full of the principal of, any
premium and interest on, and any Additional Amounts and sinking fund payments
required with respect to, the Guaranteed Securities and the complete performance
of all other obligations contained in the Guaranteed Securities.
The Guarantees shall continue to be effective or be reinstated, as
the case may be, if at any time payment on any Guaranteed Security, in whole or
in part, is rescinded or must otherwise be restored to the Issuer or the
Guarantor upon the bankruptcy, liquidation or reorganization of the Issuer or
otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Issuer in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of the Guarantees; PROVIDED,
HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of, any premium and interest on, and any Additional Amounts and
sinking fund payments required with respect to, all Guaranteed Securities shall
have been paid in full.
* * * * *
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed,
all as of the day and year first above written.
Tanger Properties Limited Partnership
By: Tanger Factory Outlet Centers, Inc.,
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as General Partner
Attest:
/s/ Xxxxxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxx
Secretary ------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
[SEAL] Tanger Factory Outlet Centers, Inc.,
as Guarantor
/s/ Xxxxxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxx
Secretary ------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and
Chief Executive
[SEAL] State Street Bank and Trust Company,
as Trustee
Attest:
/s/ Xxxxxx Xxxxxxxxx
Vice President By /s/ Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Asst. VP
96
STATE OF NC )
SS.:
COUNTY OF Guilford )
On the 11th day of March, 1996, before me personally came Xxxxxxx
X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is a Chairman of the Board and CEO of Tanger Factory Outlet Centers, Inc.,
acting in its capacity as the sole general partner of Tanger Properties
Limited Partnership, a North Carolina limited partnership, one of the persons
described in and who executed the foregoing instrument; that he knows the
seal of said Partnership; that the seal affixed to said instrument is such
Partnership's seal; that it was so affixed by authority of the Board of
Directors of said Partnership; and that he signed his name thereto by like
authority.
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF NC )
SS.:
COUNTY OF Guilford )
On the 11th day of March, 1996, before me personally came Xxxxxxx
X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is a Chairman of the Board and CEO of Tanger Factory Outlet Centers, Inc.,
a North Carolina corporation, one of the persons described in and who
executed the foregoing instrument; that he knows the seal of said
Corporation; that the seal affixed to said instrument is such Corporation's
seal; that it was so affixed by authority of the Board of Directors of said
Corporation; and that he signed his name thereto by like authority.
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Notary Public
[NOTARIAL SEAL]
00
XXXXX XX Xxx Xxxx )
SS.:
COUNTY OF New York )
On the 11th day of March, 1996, before me personally came Xxxx
Xxxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is a Ass't. VP of State Street Bank and Trust Company, a banking
association organized and existing under the laws of Massachusetts, one of
the persons described in and who executed the foregoing instrument; that he
knows the seal of said Corporation; that the seal affixed to said instrument
is such Corporation's seal; that it was so affixed by authority of the Board
of Directors of said Corporation; and that he signed his name thereto by like
authority.
/s/ Xxxxxx Xxxxxxx
----------------------------
Notary Public
[NOTARIAL SEAL]
98
