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[EXECUTION COPY]
EXHIBIT 4.01
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CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP
Issuer
and
STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A.
Trustee
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INDENTURE
Dated as of September 22, 1997
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SENIOR DEBT SECURITIES
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TABLE OF CONTENTS
Page
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RECITALS OF THE ISSUER.........................................................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS......................................................................................1
Acquired Indebtedness...........................................................................1
Act ........................................................................................2
Additional Amounts..............................................................................2
Affiliate.......................................................................................2
Annual Debt Service Charge......................................................................2
Authenticating Agent............................................................................2
Authorized Newspaper............................................................................2
Bankruptcy Law..................................................................................2
Bearer Security.................................................................................2
Board of Directors..............................................................................2
Board Resolution................................................................................2
Business Day....................................................................................2
CEDEL ..........................................................................................2
Commission......................................................................................3
Common Depositary...............................................................................3
Consolidated Income Available for Debt Service..................................................3
Consolidated Interest Expense...................................................................3
Consolidated Net Income.........................................................................3
Conversion Event................................................................................3
Corporate Trust Office..........................................................................3
Corporation.....................................................................................3
Coupon ........................................................................................3
Crescent .......................................................................................3
Custodian.......................................................................................3
Debt ...........................................................................................4
Defaulted Interest..............................................................................4
Dollar..........................................................................................4
DTC ............................................................................................4
ECU ............................................................................................4
Euroclear.......................................................................................4
European Community..............................................................................4
European Monetary System........................................................................4
European Union..................................................................................4
Event of Default................................................................................4
Exchange Act....................................................................................4
Exchange Date...................................................................................4
Foreign Currency................................................................................4
GAAP ........................................................................................5
General Partner.................................................................................5
Government Obligations..........................................................................5
Holder ........................................................................................5
Indenture.......................................................................................5
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Indexed Security................................................................................5
Interest .......................................................................................5
Interest Payment Date...........................................................................5
Issuer ........................................................................................5
Issuer Request..................................................................................5
Judgment Currency...............................................................................6
Legal Holiday...................................................................................6
Make-Whole Amount...............................................................................6
Maturity .......................................................................................6
Officers' Certificate...........................................................................6
Opinion of Counsel..............................................................................6
Original Issue Discount Security................................................................6
Outstanding.....................................................................................6
Paying Agent....................................................................................7
Person ........................................................................................7
Place of Payment................................................................................7
Predecessor Security............................................................................7
Recourse Indebtedness...........................................................................7
Redemption Date.................................................................................8
Redemption Price................................................................................8
Registered Security.............................................................................8
Regular Record Date.............................................................................8
Reinvestment Rate...............................................................................8
Repayment Date..................................................................................8
Repayment Price.................................................................................8
Responsible Officer.............................................................................8
Secured Debt....................................................................................8
Security .......................................................................................9
Security Register...............................................................................9
Significant Subsidiary..........................................................................9
Special Record Date.............................................................................9
Stated Maturity.................................................................................9
Statistical Release.............................................................................9
Subsidiary......................................................................................9
Total Assets....................................................................................9
Total Unencumbered Assets.......................................................................9
Trust Indenture Act or.........................................................................10
Trustee........................................................................................10
Undepreciated Real Estate Assets...............................................................10
United States..................................................................................10
United States Person...........................................................................10
Unsecured Debt.................................................................................10
Yield to Maturity..............................................................................10
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS............................................................10
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE..........................................................11
SECTION 104. ACTS OF HOLDERS.................................................................................11
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER............................................................11
SECTION 106. NOTICE TO HOLDERS; WAIVER.......................................................................11
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS........................................................12
SECTION 108. SUCCESSORS AND ASSIGNS..........................................................................12
SECTION 109. SEVERABILITY CLAUSE.............................................................................13
SECTION 110. BENEFITS OF INDENTURE...........................................................................13
SECTION 111. GOVERNING LAW...................................................................................14
SECTION 112. LEGAL HOLIDAYS..................................................................................14
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SECTION 113. QUALIFICATION UNDER TRUST INDENTURE ACT.........................................................14
SECTION 114. COUNTERPARTS....................................................................................14
SECTION 115. JUDGMENT CURRENCY...............................................................................14
SECTION 116. NONRECOURSE.....................................................................................14
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES.............................................................................15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.................................................15
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM..............................................................16
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES............................................................16
SECTION 302. CURRENCY, DENOMINATIONS.........................................................................20
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING..................................................20
SECTION 304. TEMPORARY SECURITIES............................................................................22
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.............................................24
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES................................................27
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS RESERVED...................................................28
SECTION 308. PERSONS DEEMED OWNERS...........................................................................29
SECTION 309. CANCELLATION....................................................................................30
SECTION 310. COMPUTATION OF INTEREST.........................................................................30
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.........................................................30
SECTION 402. APPLICATION OF TRUST FUNDS......................................................................31
ARTICLE FIVE
REMEDIES
SECTION 501 EVENTS OF DEFAULT...............................................................................32
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT..............................................33
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.................................34
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM................................................................35
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR COUPONS..........................35
SECTION 506. APPLICATION OF MONEY COLLECTED..................................................................36
SECTION 507. LIMITATION ON SUITS.............................................................................36
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM OR MAKE-WHOLE AMOUNT, IF
ANY, INTEREST AND ADDITIONAL AMOUNTS......................................................36
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES..............................................................37
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE..................................................................37
SECTION 511. DELAY OR OMISSION NOT WAIVER....................................................................37
SECTION 512. CONTROL BY HOLDERS OF SECURITIES................................................................37
SECTION 513. WAIVER OF PAST DEFAULTS.........................................................................37
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS.........................................................38
SECTION 515. UNDERTAKING FOR COSTS...........................................................................38
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ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS..............................................................................38
SECTION 602. CERTAIN RIGHTS OF TRUSTEE.......................................................................38
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES..........................................40
SECTION 604. MAY HOLD SECURITIES.............................................................................40
SECTION 605. MONEY HELD IN TRUST.............................................................................40
SECTION 606. COMPENSATION AND REIMBURSEMENT..................................................................40
SECTION 607. CORPORATE TRUSTEE REQUIRED ELIGIBILITY; CONFLICTING INTERESTS...................................41
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR...............................................41
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR..........................................................42
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.....................................43
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT.............................................................43
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS....................................................45
SECTION 702. REPORTS BY TRUSTEE..............................................................................45
SECTION 703. REPORTS BY ISSUER...............................................................................45
SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS........................................46
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER AND SALES, LEASES AND CONVEYANCE PERMITTED SUBJECT
TO CERTAIN CONDITIONS.....................................................................46
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION......................................................46
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL....................................................47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS..............................................47
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.................................................48
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES............................................................49
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES...............................................................49
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.............................................................49
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES..............................................49
SECTION 907. NOTICE OF SUPPLEMENTAL INDENTURES...............................................................49
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM OR MAKE-WHOLE AMOUNT, IF ANY, INTEREST AND ADDITIONAL
AMOUNTS...................................................................................50
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY................................................................50
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............................................51
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SECTION 1004. LIMITATIONS ON INCURRENCE OF DEBT..............................................................52
SECTION 1005. [INTENTIONALLY OMITTED]........................................................................53
SECTION 1006. EXISTENCE......................................................................................53
SECTION 1007. MAINTENANCE OF PROPERTIES......................................................................53
SECTION 1008. INSURANCE......................................................................................54
SECTION 1009. PAYMENT OF TAXES AND OTHER CLAIMS..............................................................54
SECTION 1010. PROVISION OF FINANCIAL INFORMATION.............................................................54
SECTION 1011. STATEMENT AS TO COMPLIANCE.....................................................................54
SECTION 1012. ADDITIONAL AMOUNTS.............................................................................55
SECTION 1013. WAIVER OF CERTAIN COVENANTS....................................................................55
SECTION 1014. DELIVERY OF CERTAIN INFORMATION................................................................55
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.......................................................................56
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................................................56
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............................................56
SECTION 1104. NOTICE OF REDEMPTION...........................................................................56
SECTION 1105. DEPOSIT OF REDEMPTION PRICE....................................................................58
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE..........................................................58
SECTION 1107. SECURITIES REDEEMED IN PART....................................................................59
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.......................................................................59
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENT WITH SECURITIES...........................................59
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND......................................................59
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE.......................................................................60
SECTION 1302. REPAYMENT OF SECURITIES........................................................................60
SECTION 1303. EXERCISE OF OPTION.............................................................................60
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE.................................61
SECTION 1305. SECURITIES REPAID IN PART......................................................................61
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT DEFEASANCE OR COVENANT DEFEASANCE..........62
SECTION 1402. DEFEASANCE AND DISCHARGE.......................................................................62
SECTION 1403. COVENANT DEFEASANCE............................................................................62
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................................................63
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS................................................................................64
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED......................................................65
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.............................................................65
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS...........................................................65
SECTION 1504. QUORUM; ACTION.................................................................................65
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS............................66
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS................................................67
SECTION 1507. EVIDENCE OF ACTION TAKEN BY HOLDERS............................................................67
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS..............................................................67
ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. APPLICABILITY OF ARTICLE.......................................................................68
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CRESCENT REAL ESTATE EQUITIES LIMITED PARTNERSHIP
Reconciliation and Tie between Trust Indenture Act of 1939
(the "TIA" or "Trust Indenture Act") and the Indenture, dated as of
September 22, 1997
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1) . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . 607, 608
Sec. 312(a) . . . . . . . . . . . . . . . . . . 704
Sec. 312(c) . . . . . . . . . . . . . . . . . . 701
Sec. 313(a) . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . 702
Sec. 314(a) . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . 1011
(c)(1) . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . 102
Sec. 315(b) . . . . . . . . . . . . . . . . . . 601
Sec. 316(a) (last sentence) . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . 508
Sec. 317(a)(1) . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . 504
Sec. 318(a) . . . . . . . . . . . . . . . . . . 113
(c) . . . . . . . . . . . . . . . . . . 113
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a 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 of the Trust Indenture Act are a part of and govern every
qualified indenture, whether or not physically contained therein.
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INDENTURE (this "Indenture"), dated as of September 22, 0000,
xxxxxxx XXXXXXXX XXXX XXXXXX EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Issuer"), having its principal offices at 000 Xxxx Xxxxxx,
Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000 and State Street Bank and Trust Company of
Missouri, N.A., a national banking association, as Trustee hereunder (the
"Trustee"), having its Corporate Trust Office at One Metropolitan Square, 000
Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000.
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for
its lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing its unsecured and unsubordinated indebtedness, and has
duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to principal amount,
to bear interest at the rates or formulas, to mature at such times and to have
such other provisions as shall be fixed as hereinafter provided.
Upon making the appropriate filings with the Securities and
Exchange Commission, this Indenture will be 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 deemed to be
incorporated into this Indenture and shall, to the extent applicable, be
governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
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 GAAP;
(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.
"ACQUIRED INDEBTEDNESS" means Debt of a Person (i) existing
at the time the Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from the Person, in each case, other than Debt
incurred in connection with, or in contemplation of, the Person becoming a
Subsidiary or that acquisition. Acquired Indebtedness shall be deemed to be
incurred on
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the date of the related acquisition of assets from any Person or the date the
acquired Person becomes a Subsidiary.
"ACT," when used with respect to any Holder, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Issuer in respect of certain
taxes, assessments or other governmental charges imposed on certain Holders and
which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"ANNUAL DEBT SERVICE CHARGE," as of any date means the amount
which is expensed in any 12-month period for Consolidated Interest Expense of
the Issuer and its Subsidiaries.
"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, printed in the
English language or in an official language of the place of publication,
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.
Whenever successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers in the same city meeting the foregoing requirements and
in each case on any day that is a Business Day in the place of publication.
"BANKRUPTCY LAW" has the meaning specified in Section 501.
"BEARER SECURITY" means any Security 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
thereunder.
"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, and delivered to the Trustee.
"BUSINESS DAY" when used with respect to any Place of Payment
or any other location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday or other day on which
banking institutions in that Place of Payment or particular location are
authorized or required by law, regulation or executive order to close.
"CEDEL" means Central de Livraison de Valeurs Mobilieres,
S.A., or its successor.
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"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body
performing such duties on such date.
"COMMON DEPOSITARY" has the meaning specified in Section
304(b).
"CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE" for any
period means Consolidated Net Income plus amounts which have been deducted in
determining Consolidated Net Income during such period for (i) Consolidated
Interest Expense, (ii) provision for taxes of the Issuer and its Subsidiaries
based on income, (iii) amortization (other than amortization of debt discount)
and depreciation, (iv) provisions for losses from sales or joint ventures, (v)
increases in deferred taxes and other non-cash items, (vi) charges resulting
from a change in accounting principles and (vii) charges for early
extinguishment of debt, and less amounts which have been added in determining
Consolidated Net Income during such period for (a) provisions for gains from
sales or joint ventures and (b) decreases in deferred taxes and other non-cash
items.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, and
without duplication, all interest (including the interest component of rentals
on leases reflected in accordance with GAAP as capitalized leases on the
Issuer's consolidated balance sheet, letter of credit fees, commitment fees and
other like financial charges) and all amortization of debt discount on all Debt
(including, without limitation, payment-in-kind, zero coupon and other
securities) of the Issuer and its Subsidiaries, but excluding legal fees, title
insurance charges and other out-of-pocket fees and expenses incurred in
connection with the issuance of Debt, all determined in accordance with GAAP.
"CONSOLIDATED NET INCOME" for any period means the amount of
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 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 principally administered, which office at the date hereof is
located at One Metropolitan Square, 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx,
Xxxxxxxx 00000, provided that with respect to presentment, transfer, exchange,
registration or payment of Securities, "Corporate Trust Office" means at the
date hereof at Two International Place, Financial Services, Corporate Trust
Department, Xxxxxx, Xxxxxxxxxxxxx 00000, with a drop facility located at the
Corporate Trust Window, Concourse Level, 00 Xxxxxxxx, Xxx Xxxx, XX 00000.
"CORPORATION" includes corporations and limited liability
companies, associations, partnerships, real estate investment trusts, companies
and business TRUSTS.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"CRESCENT" means Crescent Real Estate Equities Company, a
Texas real estate investment trust.
"CUSTODIAN" has the meaning specified in Section 501.
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"DEBT" of any Person means, without duplication, any
indebtedness of such Person, 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 owned by such Person, (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
by such Person as lessee which is reflected on such Person's 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 such
Person's consolidated balance sheet in accordance with GAAP, and also includes,
to the extent not otherwise included, any obligation by such Person to be
liable for, or to pay, as obligor, guarantor or otherwise (other than for
purposes of collection in the ordinary course of business), indebtedness of
another Person (other than such Person and its Subsidiaries) (it being
understood that "Debt" shall be deemed to be incurred by the Issuer and 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; Debt of a Subsidiary of the Issuer existing prior to
the time it became a Subsidiary of the Issuer shall be deemed to be incurred
upon such Subsidiary's becoming a Subsidiary of the Issuer, and Debt of a
Person existing prior to a merger or consolidation of such Person with the
Issuer or any Subsidiary of the Issuer in which such Person is the successor of
the Issuer or such Subsidiary shall be deemed to be incurred upon the
consummation of such merger or consolidation); provided, however, that the term
Debt shall not include any such indebtedness that has been the subject of an
"in substance" defeasance in accordance with GAAP.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"DTC" has the meaning specified in Section 304(b).
"ECU" means European Currency Units as defined and revised
from time to time by the Council of the European Community.
"EUROCLEAR" means Xxxxxx Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITY" means the European Economic 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 Article Five.
"EXCHANGE ACT" means the Securities Exchange Act of 1934 and
any successor statute thereto, in each case as amended from time to time, and
the rules and regulations of the Commission thereunder.
"EXCHANGE DATE" has the meaning specified in Section 304(b).
"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 or by any
recognized confederation or association of such governments.
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"GAAP" means generally accepted accounting principles, as in
effect from time to time, as used in the United States applied on a consistent
basis; provided that solely for purposes of any calculation required by the
financial covenants contained herein, "GAAP" shall mean generally accepted
accounting principles as used in the United States on the date hereof, applied
on a consistent basis.
"GENERAL PARTNER" means Crescent Real Estate Equities, Ltd., a
Delaware corporation and wholly owned subsidiary of Crescent, as general
partner of the Issuer.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States or such government which issued the foreign currency in
which the Securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States or such other government, which, in either case, are not callable or
redeemable at the option of the Issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect
to any such Government Obligation or held by such custodian for the account of
the holder of a depositary 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 depositary receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depositary receipt.
"HOLDER" means, in the case of any Registered Security, the
Person in whose name such Security is registered in the Security Register and,
in the case of any Bearer Security, the bearer thereof and, when used with
respect to any coupon, shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed or 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 shall include the terms of a particular series of Securities established as
contemplated by Section 301.
"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," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1012,
includes such Additional Amounts.
"INTEREST PAYMENT DATE," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"ISSUER" means the Person named as the "Issuer" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Issuer" shall mean such successor Person.
"ISSUER REQUEST" and "ISSUER ORDER" mean, respectively, a
written request or order signed in the name of the Issuer by the General
Partner by its Chairman of the Board of Directors, its President or a Vice
President (whether or not designated by a number or a word or words added
before or after the title "vice president"), and by its Chief Financial
Officer, Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, of the General Partner, and delivered to the Trustee.
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"JUDGMENT CURRENCY" has the meaning specified in Section 115.
"LEGAL HOLIDAY" means a day that is not a Business Day.
"MAKE-WHOLE AMOUNT" means, in connection with any optional
redemption or accelerated payment of any Securities, the excess, if any, of:
(i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid and the
amount of interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of each such
dollar if such redemption had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such
redemption is given) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment had
not been made, to the date of redemption or accelerated payment; over (ii) the
aggregate principal amount of the Securities being redeemed or paid.
"MATURITY," when used 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 therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise, and includes the Redemption
Date.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman of the Board of Directors, the President or a Vice President (whether
or not designated by a number or a word or words added before or after the
title "vice president") of the General Partner and by the Chief Financial
Officer, Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the General Partner, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who
may be counsel for the Issuer, Crescent, or the General Partner or who may be
an employee of or other counsel for the Issuer or the General Partner and who
shall be reasonably satisfactory to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"OUTSTANDING," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the
Security Registrar for cancellation,
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder
money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other
than the Issuer) in trust or set aside and segregated
in trust by the Issuer (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;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Issuer has
effected defeasance and/or covenant defeasance as
provided in Article Fourteen; and
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(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other
Securities have been authenticated and delivered
pursuant to this Indenture, other than any such
Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide
purchaser in whose hands such Securities are valid
obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination or calculation, upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined pursuant to Section
301 as of the date such Security is originally issued by the Issuer, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the amount determined
as provided in clause (i) above) of such Security, (iii) the principal amount
of any Indexed Security that may be counted in making such determination or
calculation 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 with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Issuer or any other obligor upon
the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such determination or
calculation or in 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 have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any Affiliate of
the Issuer or of such other obligor.
"PAYING AGENT" means any Person authorized by the Issuer to
pay the principal of (and premium and Additional Amounts, if any) or interest
on any Securities or coupons on behalf of the Issuer.
"PERSON" means any individual, corporation, partnership,
limited liability company, joint venture, joint-stock company, trust,
unincorporated organization, real estate investment trust or government or any
agency or political subdivision thereof.
"PLACE OF PAYMENT," when used with respect to any Security,
means the place or places where the principal of (and premium and Additional
Amounts, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"RECOURSE INDEBTEDNESS" means Debt, other than Secured Debt as
to which Secured Debt the liability of the obligor thereon is limited to its
interest in the collateral securing
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such Secured Debt, provided that no such Secured Debt shall constitute Recourse
Indebtedness by reason of provisions therein for imposition of full recourse
liability on the obligor for certain wrongful acts, environmental liabilities,
or other customary exclusions from the scope of so-called "non-recourse"
provisions.
"REDEMPTION DATE," when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture or such Security.
"REDEMPTION PRICE," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
"REGISTERED SECURITY" shall mean any Security which is
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on any Registered Security of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"REINVESTMENT RATE" means .25% plus the arithmetic mean of the
yields under the heading "Week Ending" published in the most recent Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to maturity,
as of the payment date of the principal being redeemed or paid. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the purposes of calculating
the Reinvestment Rate, the most recent Statistical Release published prior to
the date of determination of the Make-Whole Amount shall be used. If the
format or content of the Statistical Release changes in a manner that precludes
determination of the Treasury yield in the above manner, then the Treasury
yield shall be determined in the manner that most closely approximates the
above manner, as reasonably determined by the Issuer. If the format or content
of the Statistical Release changes in a manner that precludes determination of
the Treasury Yield in the above manner, then the Treasury Yield shall be
determined in the manner that most closely approximates the above manner, as
reasonably determined by the Issuer.
"REPAYMENT DATE" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
"RESPONSIBLE OFFICER," when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
"SECURED DEBT" means, without duplication, Debt that is
secured by a mortgage, trust deed, deed of trust, deed to secure Debt, security
agreement, pledge, conditional sale or other title retention agreement,
capitalized lease, or other like agreement granting or conveying security title
to or a security interest in real property or other tangible assets. Secured
Debt shall be deemed
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to be incurred (i) on the date the Issuer or any Subsidiary creates, assumes,
guarantees or otherwise becomes liable in respect thereof if it is secured in
the manner described in the preceding sentence on such date or (ii) on the date
the Issuer or any Subsidiary first secures such Debt in the manner described in
the preceding sentence if such Debt was not so secured on the date it was
incurred.
"SECURITY" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
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 the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly 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 any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933, as amended) of the Issuer.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date
fixed by the Trustee pursuant to Section 307.
"STATED MATURITY," when used with respect to any Security or
any installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date specified in such Security or a
coupon representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest, or
such Additional Amounts are due and payable.
"STATISTICAL RELEASE" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be
designated by the Issuer.
"SUBSIDIARY" means, as to any Person, (i) a corporation,
partnership, limited liability company, trust, real estate investment trust or
other entity 50% or more of the voting power of the voting equity securities of
which are owned, directly or indirectly, by such Person or by one or more
Subsidiaries of such Person; (ii) a partnership, limited liability company,
trust, real estate investment trust or other entity not treated as a
corporation for federal income tax purposes 50% or more of the value of the
equity interests of which are owned, directly or indirectly, by such Person or
by one or more other Subsidiaries of such Person; and (iii) one or more
corporations which, either individually or in the aggregate, would be
Significant Subsidiaries (as defined herein, except that the investment, asset
and equity thresholds for purposes of this definition shall be 5%), 50% or more
of the value of the equity interests of which are owned, directly or
indirectly, by such Person or by one or more Subsidiaries of such person.
"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).
"TOTAL UNENCUMBERED ASSETS" as of any date means the sum of
(i) the Undepreciated Real Estate Assets not securing any portion of Secured
Debt and (ii) all other assets of the Issuer and its Subsidiaries on a
consolidated basis not securing any portion of Secured Debt determined in
accordance with GAAP (but excluding intangibles and accounts receivable).
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"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act
of 1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that 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" means, unless otherwise specified with respect
to any Securities pursuant to Xxxxxxx 000, xxx Xxxxxx Xxxxxx xx Xxxxxxx
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"UNSECURED DEBT" means Debt of the Issuer or any Subsidiary
that is not Secured Debt.
"YIELD TO MATURITY" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Except as
otherwise expressly provided in this Indenture, upon any application or request
by the Issuer to the Trustee to take any action under any provision of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not
such condition or covenant has been complied with; and
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(4) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the General
Partner may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or a certificate or representations of or by counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion, certificate or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such Opinion of Counsel
or certificate or representations may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the General Partner stating that the information as to
such factual matters is in the possession of the Issuer, unless such counsel
knows that the certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. 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 by
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. 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 TIA) conclusive in favor
of the Trustee and the Issuer and any agent of the Trustee or the Issuer, 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.
(b) 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.
(c) 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.
(d) 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
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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 in 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 Trustee deems sufficient.
(e) If the Issuer shall solicit from the Holders of any
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Issuer may, at its option, in or pursuant to
a Board Resolution, 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, but the Issuer
shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of
Registered Securities of record at the close of business on such record date
shall be deemed to be Holders for the purposes of determining whether Holders
of the requisite proportion of Outstanding 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 on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than eleven months after the record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent or
the Issuer in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with
(A) the Trustee by a Holder or by 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
(B) the Issuer by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage
prepaid, to the Issuer addressed to it at the address of its
principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in
writing to the Trustee by the Issuer.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Issuer or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it
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appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized Newspaper
in New York City and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If 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 Bearer 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 the failure to
give notice by publication to any particular Holder of Bearer Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Securities
or the sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice,
consent, waiver or Act required or permitted under this Indenture shall be in
the English language, except that, if the Issuer so elects, any published
notice may be in an official language of the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. SEVERABILITY CLAUSE. In case any provision in
this Indenture or in any Security or coupon shall be deemed invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this
Indenture or in the Securities or coupons, express or implied, shall give to
any Person, other than the parties hereto, any
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Security Registrar, any Paying Agent, any Authenticating Agent and their
successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the
Securities and coupons shall be governed by and construed in accordance with
the laws of the State of New York.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity of any Security, or the last date on which a Holder
has the right to exchange Securities of a series that are exchangeable, shall
be a Legal Holiday at any Place of Payment, then (notwithstanding any other
provision of this Indenture or any Security or coupon other than a provision in
any Security or coupon that specifically states that such provision shall apply
in lieu hereof), payment of interest or any Additional Amounts or principal
(and premium or Make-Whole Amount, if any) need not be made at such Place of
Payment on such date and such Securities need not be exchanged on such date,
but such payment may be made and such Securities may be exchanged on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date, Redemption Date, Repayment Date or
sinking fund payment date, or at the Stated Maturity or Maturity or on such
last day for exchange, provided that no interest shall accrue on the amount so
payable for the period from and after such Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity or
last day for or exchange, as the case may be.
SECTION 113. QUALIFICATION UNDER TRUST INDENTURE ACT. In the
event this Indenture is or becomes qualified under the provisions of the TIA,
the provisions hereof shall be subject to the TIA, all provisions which the TIA
provides as automatically deemed to be included in an indenture to be qualified
thereunder shall be included herein, and, in the event of any conflict between
the provisions hereof and the provisions of the TIA, the provisions of the TIA
shall control.
SECTION 114. 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 115. JUDGMENT CURRENCY. The Issuer 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 New York Banking Day
preceding that on which a final unappealable judgment is given and (b) the
Issuer's obligations under this Indenture 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 Legal Holiday in The City of New York.
SECTION 116. NONRECOURSE. Unless otherwise provided in the
Board Resolution authorizing a particular series of Securities in accordance
with Section 301, no recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or coupon appertaining
thereto, or because of any Debt evidenced thereby (including, without
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limitation, any obligation or indebtedness relating to the principal of, or
premium or Make-Whole Amount, if any, interest or any other amounts due, or
claimed to be due, on any Security issued hereunder), or for any claim based
thereon or otherwise in respect thereof, shall be had (i) against the General
Partner or any other partner, or any Person which owns an interest, directly or
indirectly, in any partner, in the Issuer, or (ii) against any promoter, as
such, or against any past, present or future shareholder, officer, trustee or
partner, as such, of the Issuer or the General Partner or of any successor,
either directly or through the Issuer or the General Partner or any successor,
under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities. Unless otherwise provided in
the Board Resolution authorizing a particular series of Securities in
accordance with Section 301, the Holders of the Securities hereunder
acknowledge by the acceptance of the Securities that their sole remedies under
this Indenture for any Default by the Issuer in the payment of the principal
of, or any premium or Make-Whole Amount, if any, interest or any amounts due,
or claimed to be due, on any Security, or otherwise, are limited to claims
against the property of the Issuer as provided in Section 503 hereof.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Issuer may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and 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 executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
(TRUSTEE)
as Trustee
By:
----------------------------
Authorized Signatory
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SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If
Securities of or within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (9) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it or any number of such Securities shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
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. 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 endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of,
and 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 (a) in the case of a
global Security in registered form, the Holder of such global Security in
registered form, or (b) in the case of a global Security in bearer form, the
Person or Persons specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable (each of which (except for the matters set forth in clauses (1), (2)
and (16) below), if so provided, may be determined from time to time by the
Issuer with respect to unissued Securities of the series when issued from time
to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other
series of Securities);
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(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 Sections 304, 305, 306, 906, 1107 or 1305);
(3) the percentage of the principal amount at which the Securities
of the series will be issued and, if other than the principal
amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of maturity thereof;
(4) the date or dates, or the method for determining such date or
dates, on which the principal of the Securities of the series
shall be payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or
dates shall be determined, the Interest Payment Dates on which
such interest will 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 by which such 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;
(6) the place or places, if any, other than or in addition to the
Borough of Manhattan, New York City, where (i) the principal
of (and premium or Make-Whole Amount, if any), interest, if
any, on, and Additional Amounts, if any, payable in respect
of, the Securities of the series shall be payable, (ii) any
Registered Securities of the series may be surrendered for
registration of transfer or exchange and (iii) notices or
demands to or upon the Issuer in respect of the Securities of
the series and this Indenture may be served;
(7) 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 the Securities of the series may be
redeemed, as a whole or in part, at the option of the Issuer,
if the Issuer is to have such an option;
(8) the obligation, if any, of the Issuer to redeem, repay or
purchase the Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder
thereof, and the period or periods within which or the date or
dates on 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
the Securities of the series shall be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(9) 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;
(10) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(11) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series that shall be
payable upon declaration of acceleration of the
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Maturity thereof pursuant to Section 502 or the method by
which such portion shall be determined;
(12) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole
Amount, 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;
(13) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, 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 the manner in which such
amounts shall be determined;
(14) whether the principal of (and premium or Make-Whole Amount, 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, in a currency or currencies,
currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or
stated to be payable, 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 denominated or 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
payable;
(15) provisions, if any, granting special rights to the Holders of
the Securities of the series upon the occurrence of such
events as may be specified;
(16) any deletions from, modifications of or additions to the
Events of Default or covenants of the Issuer with respect to
the 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 the Securities of the series will be in certificated
or book-entry form and, if certificated, 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 depositary for such series;
(18) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date
of original issuance of the first 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
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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) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification
of, in addition to or in lieu of, any of the provisions of
Article Fourteen;
(21) 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;
(22) 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);
(23) with respect to any Securities that provide for optional
redemption or prepayment upon the occurrence of certain events
(such as a change of control of the Issuer), (i) the possible
effects of such provisions on the market price of the Issuer's
or the General Partner's securities or in deterring certain
mergers, tender offers or other takeover attempts, and the
intention of the Issuer to comply with the requirements of
Rule 14e-1 under the Exchange Act and any other applicable
securities laws in connection with such provisions; (ii)
whether the occurrence of the specified events may give rise
to cross-defaults on other indebtedness such that payment on
such Securities may be effectively subordinated; and (iii) the
existence of any limitations on the Issuer's financial or
legal ability to repurchase such Securities upon the
occurrence of such an event (including, if true, the lack of
assurance that such a repurchase can be effected) and the
impact, if any, under the Indenture of such a failure,
including whether and under what circumstances such a failure
may constitute an Event of Default;
(24) with respect to any Securities that may be issued in a private
offering, the restrictions on transfer and legends relating to
such Securities of the series and whether Securities of the
series are entitled to registration or exchange rights; and
(25) 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 the coupons, if any,
appertaining to any Bearer Securities of the series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to the Board Resolution
establishing the series (subject to Section 303 and the second paragraph of
this Section 301) and set forth in an Officers' Certificate or in any indenture
supplemental hereto. All Securities of any one series need not be issued at
the same time and, unless otherwise provided, a series may be reopened, without
the consent of the Holders, for issuances of additional Securities of such
series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be
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certified by the Secretary or an Assistant Secretary of the General Partner and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the Securities of such series.
SECTION 302. CURRENCY, DENOMINATIONS. Unless otherwise
provided as contemplated by Section 301, 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 as contemplated by Section 301,
Registered Securities denominated in Dollars (other than Registered Securities
issued in global form, which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities denominated in Dollars (other than Bearer Securities issued in
global form, which may be of any denomination) shall be issuable in
denominations of $5,000 and any integral multiple thereof. 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.
The Securities and any coupons appertaining thereto shall be executed on behalf
of the Issuer by the General Partner by its Chairman of the Board, its
President or one of its Vice Presidents (whether or not designated by a number
or word or words added before or after the title "vice president"), under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities and coupons may be manual or facsimile signatures of the present or
any future such authorized officer and may be imprinted or otherwise reproduced
on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
General Partner shall bind the Issuer, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Issuer may deliver the Securities of any
series, together with any coupon appertaining thereto, executed by the Issuer
to the Trustee for authentication, together with an Issuer Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Issuer Order shall authenticate and deliver such Securities; provided,
however, that, in connection with its original issuance, no Bearer Security
shall be mailed or otherwise delivered to any location in the United States;
and provided further that, unless otherwise specified with respect to any
series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate to Euroclear
or CEDEL (with a copy to the Trustee), as the case may be, in the form set
forth in Exhibit A-1 to this Indenture or such other certificate as may be
specified with respect to any series of Securities pursuant to Section 301,
dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first
becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at
one time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such Issuer Order may set forth procedures
acceptable to the Trustee for the issuance of such Securities and determining
the terms of particular Securities of such series, such as interest rate or
formula, maturity date, date of issuance and date from which interest shall
accrue. In authenticating such
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Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon:
(a) an Opinion of Counsel stating that:
(1) the terms and the form or forms of such
Securities and any coupons have been
established in conformity with the provisions
of this Indenture; and
(2) such Securities, together with any coupons
appertaining thereto, when completed by
appropriate insertions and executed and
delivered by the Issuer to the Trustee for
authentication in accordance with this
Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and
issued by the Issuer in the manner and subject
to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and
binding obligations of the Issuer, enforceable
in accordance with their terms, subject to
applicable bankruptcy, insolvency,
reorganization and other similar laws of
general applicability relating to or affecting
the enforcement of creditors' rights generally
and to general equitable principles and will
entitle the Holders thereof to the benefits of
this Indenture; and
(b) an Officers' Certificate stating that all
conditions precedent provided for in this Indenture relating
to the issuance of the Securities have been complied with and
that, to the best of the knowledge of the signers of such
certificate, no Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be issued
at one time, it shall not be necessary to deliver an Officers' Certificate
otherwise required pursuant to Section 301 or an Issuer Order, or an Opinion of
Counsel or an Officers' Certificate otherwise required pursuant to the
preceding paragraph at the time of issuance of each Security of such series,
but such order, opinion and certificates, with appropriate modifications to
cover such future issuances, shall be delivered at or before the time of
issuance of the first Security of such series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Issuer, and the Issuer shall deliver
such Security to the Trustee for cancellation as provided in Section 309
together with a written statement (which need
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not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Issuer, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the
preparation of definitive Securities of any series, the Issuer may execute, and
upon Issuer Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form, or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers 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 Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Issuer will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any nonmatured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security 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
this Indenture. 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.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company ("DTC"). If any such temporary Security is issued in
global form, then such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or common
depositary (the "Common Depositary"), for the benefit of Euroclear and CEDEL,
for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay, but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be
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exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by CEDEL as to the portion of such temporary global Security held for
its account then to be exchanged, each in the form set forth in Exhibit A-2 to
this Indenture or in such other form as may be established pursuant to Section
301; and provided further that definitive Bearer Securities shall be delivered
in exchange for a portion of a temporary global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL, as the case may be, a certificate
dated no earlier than 15 days prior to the Interest Payment Date occurring
prior to such Exchange Date in the form set forth as Exhibit A-1 to this
Indenture (or in such other forms as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been exchanged
for an interest in a definitive Security. Any interest so received by
Euroclear and CEDEL and not paid as herein provided shall be returned to the
Trustee prior to the expiration of two years after such Interest Payment Date
in order to be repaid to the Issuer.
(c) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(c) shall govern the exchange of temporary
Securities issued in global form through the facilities of DTC. If any such
temporary Security is issued in global form, then such temporary global
security shall, unless otherwise provided therein, be delivered to DTC for
credit to the respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
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Without unnecessary delay, but in any event not later than the
Exchange Date, the Issuer shall deliver to the Trustee definitive Securities,
in aggregate principal amount equal to the principal amount of such temporary
global Security, executed by the Issuer. On or after the Exchange Date, such
temporary global Security shall be surrendered by DTC to the Trustee, as the
Issuer's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged. The definitive Securities to
be delivered in exchange for any such temporary global Security shall be in
registered form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
DTC to request such exchange on his behalf. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to
the beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such
definitive Securities in person.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities for such series
occurring prior to the applicable Exchange Date shall be payable to DTC on such
Interest Payment Date, for credit without further interest on or after such
Interest Payment Date to the respective accounts of Persons who are the
beneficial owners of such temporary global Security on such Interest Payment
Date.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Issuer shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Issuer in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Issuer in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Issuer shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein
provided. 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 cease to be Security Registrar, it shall have the right
to examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender
for registration of transfer of any Registered Security of any series at any
office or agency of the Issuer in a Place of Payment for that series, the
Issuer shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like
aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions. Whenever any such Registered
Securities are so surrendered for exchange, the Issuer shall execute,
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and the Trustee shall authenticate and deliver, the Registered Securities which
the Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of
Securities as contemplated by Section 301, Bearer Securities may not be issued
in exchange for Registered Securities. If (but only if) permitted by the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, 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,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Issuer 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 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
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 located outside the United States. Notwithstanding the foregoing, in
case a Bearer Security of any series is surrendered at any such office or
agency in a permitted exchange for a Registered Security of the same 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 proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will 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 will be payable only
to the Holder of such coupon when due in accordance with the provisions of this
Indenture. Whenever any Securities are so surrendered for exchange, the Issuer
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
If provided as contemplated by Section 301, 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 so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is DTC, then unless the terms of such global Security
expressly permit such global Security to be exchanged in whole or in part for
definitive Securities, a global Security may be transferred, in whole but not
in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a
successor to DTC for such global Security elected or approved by the Issuer or
to a nominee of such successor to DTC. If at any time DTC notifies the Issuer
that it is unwilling or unable to continue as depositary for the applicable
global Security or Securities or if at any time DTC ceases to be a clearing
agency registered under the Exchange Act if so required by applicable law or
regulation, the Issuer shall appoint a successor depositary with respect to
such global Security or Securities. If (x) a successor depositary for such
global Security or Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal
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amount of the applicable series of Securities represented by such global
Security or Securities advise DTC to cease acting as depositary for such global
Security or Securities or (z) the Issuer, in its sole discretion, determines at
any time that all Outstanding Securities (but not less than all) of any series
issued or issuable in the form of one or more global Securities shall no longer
be represented by such global Security or Securities, then the Issuer shall
execute, and the Trustee shall authenticate and deliver definitive Securities
of like series, rank, tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of such global Security or
Securities. The Issuer and the Trustee shall be entitled to rely conclusively
on information provided by DTC as to the names of the beneficial holders and
the amounts owned by such holders. If any beneficial owner of an interest in a
permanent global Security is otherwise entitled to exchange such interest for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest day on which such interest may be so exchanged, the
Issuer shall execute, and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered for exchange by DTC or such other
depositary as shall be specified in the Issuer Order with respect thereto to
the Trustee, as the Issuer's agent for such purpose, provided, however, that no
such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested may be
among those selected for redemption; and provided further that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
If a Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
exchange occurs 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 the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will 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 will 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 permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Issuer, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every 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) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Security Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 304, 906, 1107 or 1305 not involving any
transfer.
Except as otherwise provided in or pursuant to this Indenture,
the Issuer or the Trustee, as applicable, shall not be required (i) to issue,
register the transfer of or exchange any Security if such Security may be among
those selected for redemption during a period beginning at the opening of
business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered
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Securities, the day of the mailing of the relevant notice of redemption and (B)
if such Securities are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if such Securities are
also issuable as Registered Securities and there is no publication, the mailing
of the relevant notice of redemption, 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 Registered 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 that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption, or (iv) to issue, register the transfer of or exchange any Security
which 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 or the Issuer, together with,
in proper cases, such security or indemnity as may be required by the Issuer or
the Trustee to save each of them and any agent of either of them harmless, the
Issuer shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with coupons corresponding to the coupons, if any, appertaining to
the surrendered Security.
If there shall be delivered to the Issuer 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 or the Trustee that such Security or coupon
has been acquired by a bona fide purchaser, the Issuer shall execute and upon
its request the Trustee shall authenticate and deliver, in lieu of any such
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 of the same series and principal
amount, containing identical terms and provisions 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 provisions of the previous two paragraphs,
in case any such 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, 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, pay such
Security or coupon, provided, however, that payment of principal of (and
premium or Make-Whole Amount, if any), and interest on and any Additional
Amounts with respect to, Bearer Securities shall, except as otherwise provided
in Section 1002, be payable only at an office or agency located outside the
United States and, unless otherwise specified as contemplated by Section 301,
any interest in Bearer Securities 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 imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
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 an original additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Security
and its coupons, if any, 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
that series and their coupons, if any, duly issued thereunder.
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The provisions of this Section, as amended or supplemented,
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS RESERVED.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, interest on and Additional
Amounts with respect to any Registered Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Issuer maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
interest on any Registered Security may at the Issuer's option be paid by (i)
mailing a check for such interest, payable to or upon the written order of the
Person entitled thereto pursuant to Section 308, to the address of such Person
as it appears on the Security Register or (ii) transfer to an account
maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in
the case of a Bearer Security, by transfer to an account maintained by the
payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the
case may be, with respect to that portion of such permanent global Security
held for its account by Cede & Co. or the Common Depositary, as the case may
be, for the purpose of permitting such party to credit the interest received by
it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on
any Registered Security of any series that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Issuer, at its
election in each case, as provided in clause (A) or (B) below:
(A) The Issuer may elect to make payment
of any Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Issuer shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time
the Issuer shall deposit with the Trustee an amount of money
in the currency or currencies, currency 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)
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
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deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest as provided in
this clause. 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 of such
Special Record Date and, in the name and at the expense of the
Issuer, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Holder of
Registered Securities of such series 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,
cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such
publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefore having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names
the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (B). In case a
Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series 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 proposed date of payment and Defaulted
Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder
of such coupon when due in accordance with the provisions of
this Indenture.
(B) The Issuer may make payment of any
Defaulted Interest on the Registered Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Issuer to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each 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 Trustee
and any agent of the Issuer or the Trustee may treat the Person in whose name
such Registered Security is registered as the owner of such Security for the
purpose of receiving payment of principal of (and premium or Make-Whole Amount,
if any), and (subject to Sections 305 and 307) interest on and any Additional
Amounts with respect to such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Issuer, the Trustee and any agent of the
Issuer or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving any payment with respect to payment thereof or on account
thereof and for all other purposes whatsoever, whether or not any payment with
respect to such Security or
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coupon be overdue, and neither the Issuer, the Trustee nor any agent of the
Issuer 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 depositary shall have any rights under this Indenture
with respect to such global Security, and such depositary may be treated by the
Issuer, the Trustee, and any agent of the Issuer or the Trustee as the owner of
such global Security for all purposes whatsoever. None of the Issuer, the
Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Issuer, the Trustee, or any agent of
the Issuer or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and
owners of beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such depositary (or
its nominee) as Holder of such global Security.
SECTION 309. CANCELLATION. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
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 and Securities
and coupons surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it; provided, however, where the Place of Payment is
located outside of the United States, the Paying Agent at such Place of Payment
may cancel the Securities surrendered to it for such purposes prior to
delivering the Securities to the Trustee. The Issuer may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Issuer has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. If the Issuer shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this
Indenture. Canceled Securities and coupons held by the Trustee shall be
periodically destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Issuer, unless by an Issuer Order the
Issuer directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest on the Securities shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Issuer Request cease to be of further effect with respect to any
series of Securities specified in such Issuer Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1012), and the Trustee, upon receipt of an
Issuer Order, and at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
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(a) either
(1) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has
been waived as provided in Xxxxxxx 000, (xx)
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 called for
redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in
Section 1106, 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
(2) all Securities of such series and, in the case of (A)
or (B) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) 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 Issuer,
in the case of (A), (B) or (C) above, has
irrevocably deposited or caused to be
deposited with the Trustee as trust funds in
trust for such purpose an amount in the
currency or currencies, currency unit or
units or composite currency or currencies in
which the Securities of such series are
payable, sufficient to pay and discharge the
entire indebtedness on such Securities and
such coupons not theretofore delivered to the
Trustee for cancellation, for principal (and
premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with
respect thereto, to the date of such deposit
(in the case of Securities which have become
due and payable) or to the Stated Maturity or
Redemption Date, as the case may be,
(b) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(c) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Issuer to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Issuer to any Authenticating
Agent under Section 611 and, if money shall have been deposited with and held
by the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the
provisions of the last paragraph of Section 1003, all money and Government
Obligations deposited with the Trustee pursuant to Section 401 or Article 14
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
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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 (and premium or Make-Whole Amount, if any), and any 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.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever
used herein with respect to any particular series of Securities, means any one
of the following events (whatever the reason for such Event of Default and
whether or not it shall be voluntary or involuntary or be effected by operation
of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body) 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:
(a) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or
of any coupon appertaining thereto, when such interest or
Additional Amounts or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series
when it becomes due and payable at its Maturity; or
(c) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(d) default in the performance, or breach, of any covenant or
warranty of the Issuer in this Indenture with respect to any
Security of that series (other than a covenant or warranty a
default in the performance or the breach of which is elsewhere
in this Section specifically dealt with), 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 by
the Trustee or to the Issuer and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities
of that series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(e) a default under any evidence of Recourse Indebtedness of the
Issuer, or under any mortgage, indenture or other instrument
of the Issuer (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 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 Recourse Debt 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 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 by
the Trustee or to the
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Issuer and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series
of a written notice specifying such default and requiring the
Issuer 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
(f) the Issuer or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
(1) commences a voluntary case;
(2) consents to the entry of an order for relief against
it in an involuntary case;
(3) consents to the appointment of a Custodian of it or
for all or substantially all of its property; or
(4) makes a general assignment for the benefit of its
creditors; or
(g) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(1) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case,
(2) appoints a Custodian of the Issuer or any Significant
Subsidiary or for all or substantially all of either
of its property, or
(3) orders the liquidation of the Issuer or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90
days; or
(h) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Issuer (and to the Trustee if given, or such lesser amount as
may be provided for in the Securities of such series, by the Holders), and upon
any such declaration such principal or such lesser amount shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of not less than a majority
in principal amount of the Outstanding Securities of that series, by written
notice to the Issuer and the Trustee, may rescind and annul such declaration
and its consequences if:
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(a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay in the currency or currency unit or
composite currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301
for the Securities of such series):
(1) all overdue installments of interest on and any
Additional Amounts payable in respect of all
Outstanding Securities of that series and any related
coupons,
(2) the principal of (and premium or Make-Whole Amount,
if any, on) any Outstanding Securities of that series
which have become due otherwise than by such
declaration of acceleration and interest thereon and
any Additional Amounts with respect thereto at the
rate or rates borne by or provided for in such
Securities,
(3) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue
installments of interest and any Additional Amounts
at the rate or rates borne by or provided for in such
Securities, and
(4) 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
(b) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or
premium or Make-Whole Amount, if any) or interest on, and any
Additional Amounts with respect to Securities of that series
which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Issuer covenants that if:
(a) default is made in the payment of any installment of interest
or Additional Amounts, if any, on any Security of any series
and any related coupon when such interest or Additional Amount
becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of (or premium
or Make-Whole Amount, if any, on) any Security of any series
at its Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest and Additional Amounts, with
interest upon any overdue principal (and premium or Make-Whole Amount, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest or Additional Amounts, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Issuer or any other obligor upon such Securities
and any related
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coupons and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Issuer or any other obligor upon
such Securities and any related coupons 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 related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein or 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 or any other obligor upon the Securities or
the property of the Issuer or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuer for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(a) 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 principal (and premium
or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in
respect of the Securities and any related coupons and
to file such other claims of the Trustee (including
any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any monies of 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 the Securities of such series and 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, to pay to the Trustee any amount due
to it for the reasonable compensation, expenses, disbursements and advances of
the Trustee and any predecessor Trustee, their agents and counsel, and any
other amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or 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 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 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 of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
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SECTION 506. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium or Make-Whole
Amount, if any) or interest and any Additional Amounts, upon presentation of
the 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 coupons for principal (and premium or
Make-Whole Amount, if any) and interest and any Additional Amounts
payable, in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such
Securities and coupons for principal (and premium or Make-Whole
Amount, if any), interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Issuer.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security
of any series or any related coupon 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:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the
Securities of that series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with
such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding
Securities of that series;
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 of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM OR MAKE-WHOLE AMOUNT, IF ANY, INTEREST AND ADDITIONAL
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 (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the
respective Stated Maturity or Maturities specified in such Security or coupon
(or, in the case of redemption, on the Redemption Date or, in the case of
repayment, on the Repayment Date) and to
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institute suit for the enforcement of any such payment and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder of a Security or 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
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen 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 Holder of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any Security 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 may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by such Holder of
Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders
of not less than 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 related coupons, provided that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any series,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series and
any related coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(a) in the payment of the principal of (or premium or Make-Whole
Amount, if any) or interest on or Additional Amounts payable
in respect of any Security of such series or any related
coupons, or
(b) 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.
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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 Event of Default or impair any right consequent
thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The
Issuer covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any 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 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 25% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium or Make-Whole Amount, if any) or interest or Additional Amounts, if
any on 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
or, in the case of repayment, on or after the Repayment Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series for which it is acting as trustee, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of (or premium or Make-Whole Amount, if any) or interest on or
any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the best interests of the Holders of the
Securities and coupons of such series; and provided further that in the case of
any default or breach of the character specified in Section 501(d) with respect
to the Securities and coupons of such series, no such notice to Holders shall
be given until at least 60 days after the occurrence thereof. For the purpose
of this Section, the term "default" means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of TIA Section 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or
other paper or document
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believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall
be sufficiently evidenced by an Issuer Request or Issuer Order
(other than delivery of any Security, 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;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely
upon an Officers' Certificate;
(d) 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;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of
any series or any related coupons pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security
or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or
other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises
of the Issuer, personally or by agent or attorney following
reasonable notice to the Issuer;
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or
through agents or counsel and the Trustee shall not be
responsible for any misconduct or negligence on the part of
any agent or counsel appointed with due care by it hereunder;
and
(h) subject to Sections 315(a) through 315(d) of the TIA, the
Trustee shall not be charged with knowledge of any Event of
Default described in Section 501(d), (e), (f), (g) or (h)
hereof unless a Responsible Officer of the Trustee shall have
actual knowledge of such Event of Default.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
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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, 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 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 and Qualification on Form T-1 supplied to the Issuer
are true and correct, 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 Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Trustee or the Issuer, in its individual or any other capacity, may become the
owner or pledgee of Securities and coupons and, subject to TIA Sections 310(b)
and 311 of the TIA, may otherwise deal with the Issuer with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Except as provided in
Section 402 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. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise agreed with the Issuer.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Issuer
agrees:
(a) 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);
(b) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own
part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of
any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(f) or Section
501(g), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy,
insolvency or other similar law.
As security for the performance of the obligations of the
Issuer under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or premium or
Make-Whole Amount, if any) or interest or any Additional Amounts on particular
Securities or any related coupons.
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The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED ELIGIBILITY;
CONFLICTING INTERESTS. There shall at all times be a Trustee hereunder which
shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have
or be wholly owned by an entity having a combined capital and surplus of at
least $50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Issuer. If any instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after
written request therefor by the Issuer or by
any Holder of a Security who has been a bona
fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 607 and shall fail to resign after
written request therefor by the Issuer or by
any Holder of a Security who has been a bona
fide Holder of a Security for at least six
months, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent,
or a receiver of the Trustee or of its
property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (A) the Issuer by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (B) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities of such series and the appointment of a successor Trustee or
Trustees.
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(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Issuer, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 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 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. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Issuer or the Holders of Securities and accepted appointment in the manner
provided in 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
Securities of such series.
(f) 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
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Issuer and to the retiring Trustee, an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Issuer or the successor Trustee, such retiring Trustee shall, upon, payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Issuer,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental
hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the 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 Trustee's co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
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removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Issuer or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any Corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such Corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons 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 or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any
time when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series or pursuant to Section 306 issued upon original
issue, exchange, registration of transfer or partial redemption or repayment
thereof, 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. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Issuer.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certification 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 shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of
America or of any State or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having or be wholly owned by an entity having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with
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the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any Corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any Corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such Corporation shall be
otherwise eligible under this Section without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Issuer. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to 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 for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Issuer agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the 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 substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
(TRUSTEE)
as Trustee
By:
----------------------------------
as Authenticating Agent
By:
----------------------------------
Authorized Signatory
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.
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ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor an Authenticating Agent nor any Paying Agent nor any Security Registrar
shall be held accountable by reason of the disclosure of any information as to
the names and addresses of the Holders of Securities in accordance with TIA
Section 312(c), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Upon qualification of this
Indenture under the TIA:
(a) Within 60 days after December 31 of each year commencing
with the first December 31 following the first issuance of Securities pursuant
to Section 301, if required by Section 313(a) of the TIA, the Trustee shall
transmit, pursuant to Section 313(c) of the TIA, a brief report dated as of
such December 31 with respect to any of the events specified in said Section
313(a) which may have occurred since the later of the immediately preceding
December 31 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(a) of the TIA at the times specified therein.
(c) 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
TIA.
SECTION 703. REPORTS BY ISSUER. Upon qualification of this
Indenture under the TIA, the Issuer will, pursuant to TIA Section 314(a):
(a) file with the Trustee, within 15 days after the Issuer 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 may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Issuer 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 Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) 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 with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(c) transmit by mail to the Holders of Securities, within 30 days after
the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Issuer pursuant to
Section 1010 and paragraphs (a) and (b) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
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SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS. The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after the Regular
Record Date for interest of each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders
of Registered Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Securities,
semiannually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer 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, provided,
however, that, so long as the Trustee is the Security Registrar, no such list
shall be required to be furnished, provided however, that, so long as the
Trustee is the Security Registrar, no such list shall be required to be
furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER AND SALES,
LEASES AND CONVEYANCE PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Issuer may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into, any other Corporation, provided that (a) the
Issuer shall be the continuing Corporation, or the successor Corporation or its
transferees or assignees of such assets (if other than the Issuer) formed by or
resulting from any such consolidation or merger or which shall have received
the transfer of such assets by lease (subject to the continuing obligations of
Issuer set forth in Section 802) or otherwise, either directly or indirectly,
shall expressly assume the payment of the principal of (and premium or
Make-Whole Amount, if any) and interest on all the Securities, and the due and
punctual performance and observance of all of the covenants and conditions in
this Indenture; (b) the successor Corporation formed by or resulting from any
such consolidation or merger or which shall have received the transfer of
assets pursuant to this Section 801 shall be a United States Corporation; and
(c) immediately after giving effect to such transaction and treating any Debt
which becomes an obligation of the Issuer or any Subsidiary as a result thereof
as having been incurred by the Issuer or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or the lapse
of time, or both, would become such an Event of Default, shall have occurred
and be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor Corporation, such successor Corporation shall
succeed to and be substituted for the Issuer with the same effect as if it had
been named herein as the party of the first part, and the predecessor
Corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor Corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor Corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Issuer to the Trustee for authentication, and any Securities
which such successor Corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
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In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
Any consolidation, merger, sale, lease or conveyance permitted under Section
801 is also subject to the condition that the Trustee receive an Officers'
Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor Corporation, complies with the provisions of this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
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, 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:
(a) to evidence the succession of another Person to the Issuer
or the addition of another Person and the assumption by any such
successor or additional Person of the covenants of the Issuer herein
and in the Securities; or
(b) to add to the covenants of the Issuer for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of securities,
stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein
conferred upon the Issuer; or
(c) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(d) 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
or any premium or interest on or any Additional Amounts with respect
to Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(e) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
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(f) to secure the Securities; or
(g) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(h) 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; or
(i) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not be
inconsistent with the provisions of this Indenture, provided such
provisions shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect;
(j) 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
Sections 401, 1402 and 1403, provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect; or
(k) to add to or change any provisions of this Indenture to
comply with any requirements of the Commission in connection with (i)
qualification of the Indenture under the TIA and (ii) any registration
of the Securities pursuant to the requirements of the Securities Act
of 1933, as amended.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal amount
of all Outstanding Securities affected by such supplemental indenture, by Act
of said Holders delivered to the Issuer and the Trustee, the Issuer, when
authorized by or pursuant to a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(a) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of
or interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect
thereof, or any premium payable upon the redemption thereof, or change
any obligation of the Issuer to pay Additional Amounts pursuant to
Section 1012 (except as contemplated by Section 801(a) and permitted
by Section 901(a)), or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where,
or the currency or currencies, currency unit or units or composite
currency or currencies 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 or repayment at the option of the Holder, on or
after the Redemption Date or the Repayment Date, as the case may be),
or
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(b) 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 with respect to such series (or
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(c) modify any of the provisions of this Section, Section 513
or Section 1013, except to increase the required percentage to effect
such action or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
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 modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to TIA Section 315) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article following the
qualification of the Indenture under the provisions of the TIA, shall conform
to the requirements of the TIA as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
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 907. NOTICE OF SUPPLEMENTAL INDENTURES. Promptly
after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Issuer shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided
for in Section 106, setting forth in general terms the substance of such
supplemental indenture.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM OR MAKE-WHOLE
AMOUNT, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. The Issuer covenants and agrees
for the benefit of the Holders of each series of Securities that it will duly
and punctually pay the principal of (and premium or Make-Whole Amount, if any)
and interest on and any Additional Amounts payable in respect of the Securities
of that series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest due on and any Additional Amounts payable in respect of any Bearer
Securities on or before Maturity, other than Additional Amounts, if any, payable
as provided in Section 1012 in respect of principal of (or premium or Make-Whole
Amount, if any, on) such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the Issuer,
all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities
of a series are issuable only as Registered Securities, the Issuer shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Issuer will
maintain: (A) in the Borough of Manhattan, New York City, an office or agency
where any Securities of that series may be presented or surrendered for payment,
where any Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Issuer in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise); (B)
subject to any laws or regulations applicable thereto in a Place of Payment for
that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Securities of that series pursuant to Section 1012), provided, however, that if
the Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Issuer will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Issuer in
respect of the Securities of that series and this Indenture may be served. The
Issuer will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the Issuer
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 that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1012) at the offices specified in the Security in London, England, and
the Issuer hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Issuer hereby appoints
the Trustee its agent to receive all such presentations, surrenders, notices and
demands.
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Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any office
or agency of the Issuer 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, that, if amounts owing with respect to
any Bearer Securities of a series are payable in Dollars, payment of principal
of and any premium and interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1012) shall be
made at the office of the designated agent of the Issuer's Paying Agent in the
Borough of Manhattan, New York City, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Issuer in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions, as
evidenced by an Opinion of Counsel.
The Issuer may 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 of such purposes, and may from time to time
rescind such designations, provided, however, that no such designations or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in accordance with the requirements set forth above for
Securities of any series for such purposes. The Issuer will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Issuer hereby designates as a Place of Payment for each series
of Securities the office or agency of the Issuer in the Borough of Manhattan,
New York City, and initially appoints the Trustee at its Corporate Trust Office
as Paying Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
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 the 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 any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on or Additional Amounts in respect of, any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency 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 (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, before each due date
of the principal of (and premium or Make-Whole Amount, if any), or interest on
or Additional Amounts in respect of, any Securities of that series, deposit with
a 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 (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or Additional Amounts and (unless such Paying Agent is the Trustee) the Issuer
will promptly notify the Trustee of its action or failure so to act.
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The Issuer will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on
Securities or Additional Amounts in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities) in the making of any such
payment of principal (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts; 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 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 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 trusts 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 in the Securities of any series,
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 (and premium or Make-Whole
Amount, if any) or interest on, or any Additional Amounts in respect of, any
Security of any series or any related coupon and remaining unclaimed for two
years after such principal (and premium or Make-Whole Amount, if any), interest
or Additional Amounts have become due and payable shall be paid to the Issuer
upon Issuer Request or (if then held by the Issuer) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment of such principal of (and
premium or Make-Whole Amount, if any) or interest on, or any Additional Amounts
in respect of, any Security, without interest thereon, 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, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Issuer.
SECTION 1004. LIMITATIONS ON INCURRENCE OF DEBT.
(a) The Issuer will not, and will not permit any Subsidiary
to, incur any Debt other than intercompany Debt (representing Debt to
which the only parties are the Issuer and any of its Subsidiaries, but
only so long as such Debt is held solely by the Issuer and any
Subsidiary) that is subordinate in right of payment to the Securities,
if, immediately after giving effect to the incurrence of such
additional Debt, the aggregate principal amount of all outstanding Debt
of the Issuer and its Subsidiaries on a consolidated basis determined
in accordance with GAAP is greater than 60% of the sum of (i) Total
Assets as of the end of the fiscal quarter covered in the Issuer's most
recent quarterly or annual financial statements, as the case may be,
most recently required to be delivered to the Holders pursuant to
Section 1010, prior to the incurrence of such additional Debt and (ii)
the increase or decrease in Total Assets from the end of such quarter
including, without limitation, any increase in Total Assets resulting
from the incurrence of such additional Debt (such increase or decrease
together with the Total Assets is referred to as the "Adjusted Total
Assets"); and
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(b) The Issuer will not, and will not permit any Subsidiary
to, incur any Secured Debt of the Issuer or any Subsidiary if,
immediately after giving effect to the incurrence of such additional
Secured Debt, the aggregate principal amount of all outstanding Secured
Debt of the Issuer and its Subsidiaries on a consolidated basis is
greater than 40% of the Adjusted Total Assets; and
(c) The Issuer will not, and will not permit any Subsidiary
to, incur any Debt other than intercompany Debt that is subordinate in
right of payment to the Securities, if the ratio of the Consolidated
Income Available for Debt Service to the Annual Debt Service Charge for
the period consisting of the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is to be
incurred shall have been less than 1.5 to 1 on a pro forma basis after
giving effect to the incurrence of such Debt and to the application of
the proceeds therefrom, and calculated on the assumption that (i) such
Debt and any other Debt incurred by the Issuer or its Subsidiaries
since the first day of such four-quarter period, which was outstanding
at the end of such period, had been incurred at the beginning of such
period and continued to be outstanding throughout such period, and the
application of the proceeds of such Debt, including to refinance other
Debt, had occurred at the beginning of such period, (ii) the repayment
or retirement of any other Debt by the Issuer or its Subsidiaries since
the first day of such four-quarter period had been repaid or retired at
the beginning of such period (except that, in determining the amount of
Debt so repaid or retired, the amount of Debt under any revolving
credit facility shall be computed based upon the average daily balance
of such Debt during such period), (iii) in the case of Acquired
Indebtedness or Debt incurred in connection with any acquisition since
the first day of the four-quarter period, the related acquisition had
occurred as of the first day of the period with the appropriate
adjustments with respect to the acquisition being included in the pro
forma calculation, and (iv) in the case of any increase or decrease in
Total Assets, or any other 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 increase,
decrease, or other acquisition or disposition or any related repayment
of Debt had occurred as of the first day of such period with the
appropriate adjustments to revenues, expenses and Debt levels with
respect to such increase, decrease or other acquisition or disposition
being included in such pro forma calculation; and
(d) Issuer will at all times maintain Total Unencumbered
Assets of not less than 150% of the aggregate outstanding principal
amount of all outstanding Unsecured Debt of the Issuer and its
Subsidiaries on a consolidated basis.
SECTION 1005. [INTENTIONALLY OMITTED].
SECTION 1006. EXISTENCE. Subject to Article Eight, the Issuer
will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence, rights and franchises; provided, however, that
the Issuer shall not be required to preserve any right or franchise if the Board
of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Issuer and that the loss thereof
is not disadvantageous in any material respect to the Holders.
SECTION 1007. MAINTENANCE OF PROPERTIES. The Issuer 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 reasonable judgment of the Issuer 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 and its Subsidiaries shall not be prevented from discontinuing the
operation and maintenance of any of such properties if such
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discontinuance is, in the judgment of the Issuer, desirable in the conduct of
its business and not disadvantageous in any material respect to the Holders.
SECTION 1008. INSURANCE. The Issuer will, and will cause each
of its Subsidiaries to, maintain insurance coverage by financially sound and
reputable insurance companies on all of its insurable property against loss or
damage with amounts and types of insurance that are commercially reasonable.
SECTION 1009. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer
will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Issuer or any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Issuer or any Subsidiary; provided, however, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1010. PROVISION OF FINANCIAL INFORMATION. The Issuer
will deliver to each Holder (a) quarterly unaudited consolidated financial
statements (including statements of income and cash flow and a consolidated
balance sheet), in comparative form, of the Issuer and its Subsidiaries within
60 days of the end of each of the first three fiscal quarters, (b) annual
audited consolidated financial statements of the Issuer and its Subsidiaries
within 105 days of the end of each fiscal year, (c) together with the statements
delivered under (a) and (b) above, certification from an officer of the Issuer
ranking at the level of a Senior Vice President or above and having
responsibility for financial information as fairly presenting in all material
respects the financial position and results of operations of the Issuer and its
Subsidiaries, (d) together with the statements delivered under (a) above, a
certificate from an officer of the Issuer ranking at the level of Senior Vice
President or above and having responsibility for financial information showing
compliance with the provisions of restrictive covenants and indicating whether
or not the Issuer is aware of any defaults, (e) together with the statements
delivered under (b) above, a certificate from the Issuer's accountants showing
compliance with the provisions of restrictive covenants and indicating whether
or not they became aware of any defaults during their audit, (f) copies of all
public documents sent by the Issuer to public securities holders or filed by the
Issuer with the Commission within 15 days after the delivery or filing of such
documents, and (g) notice within ten business days, after an officer of the
Issuer ranking at the level of a Senior Vice President or above and having
responsibility for financial information becomes aware of the existence of any
Default or Event of Default, specifying the nature and period of existence
thereof and what action the Issuer is taking or proposes to take with respect
thereto.
Once the Issuer becomes subject to the Exchange Act, the
quarterly and annual consolidated financial statements referred to above will be
deemed to refer to the Issuer's quarterly reports on Form 10-Q, annual reports
on Form 10-K or current reports on Form 8-K, respectively.
SECTION 1011. STATEMENT AS TO COMPLIANCE. The Issuer shall
deliver to the Trustee, within 120 days after the end of each fiscal year (which
is currently December 31), 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 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,
(i) 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 (ii) no event has
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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.
SECTION 1012. ADDITIONAL AMOUNTS. If any Securities of a
series provide for the payment of Additional Amounts, the Issuer will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(a), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related 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 pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
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 that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Issuer shall furnish
to the Trustee and the Paying Agent, 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 any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are not United States persons without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of the series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of that series or
related coupons and the Issuer will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. If the Trustee or
any Paying Agent, as the case may be, shall not so receive the above-mentioned
certificate, then the Trustee or such Paying Agent shall be entitled (i) to
assume that no such withholding or deduction is required with respect to any
payment of principal or interest with respect to any Securities of a series or
related coupons until it shall have received a certificate advising otherwise
and (ii) to make all payments of principal and interest with respect to the
Securities of a series or related coupons without withholding or deductions
until otherwise advised. The Issuer covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them or
in reliance on any Officers' Certificate furnished pursuant to this Section or
in reliance on the Issuer's not furnishing such an Officers' Certificate.
SECTION 1013. WAIVER OF CERTAIN COVENANTS. The Issuer may omit
in any particular instance to comply with any term, provision or condition set
forth in Sections 1004 to 1011, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
Outstanding Securities of each series affected by such omission, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Issuer and
the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
SECTION 1014. DELIVERY OF CERTAIN INFORMATION. At any time
when the Issuer is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a Holder of a
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Security, the Issuer will promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder, or to a prospective purchaser of
any such Security designated by any such Holder, as the case may be, to the
extent required to permit compliance by such Holder with Rule 144A under the
Securities Act (or any successor provision thereto) in connection with the
resale of any such Security; provided, however, that the Issuer shall not be
required to furnish such information in connection with any request made on or
after the date which is two years from the later of (i) the date such a Security
(or any such predecessor security) was last acquired from the Issuer or (ii) the
date such a Security (or any such predecessor security) was last acquired from
an "affiliate" of the Issuer within the meaning of Rule 144 under the Securities
Act (or any successor provision thereto). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with 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 less than all of the Securities of any series, the Issuer shall, at
least 45 days prior to the giving of notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Issuer shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all the Securities of any series issued on the same day
with the same 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 issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
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 Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified
by the terms of such series established pursuant to Section 301, to each Holder
of Securities to be redeemed. Failure to give such notice in the manner herein
provided to the Holder of any Security 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
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the redemption of any other such Security or portion thereof. Any notice that is
mailed to the Holders of Registered Securities in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder; receives the notice.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price, accrued interest to the
Redemption Date payable as provided in Section 1106,
if any, and Additional Amounts, if any,
(c) 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,
(d) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state
that on and after the Redemption Date, upon surrender
of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized
denominations for the principal amount thereof
remaining unredeemed,
(e) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as
provided in Section 1106, if any, will become due and
payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that
interest thereon shall cease to accrue on and after
said date,
(f) the Place or Places of Payment 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 accrued interest,
if any,
(g) that the redemption is for a sinking fund, if such
is the case,
(h) 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 for such series and any Paying Agent is
furnished,
(i) 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 this Redemption Date pursuant to
Section 305 or otherwise, the last date, as
determined by the Issuer, on which such exchanges may
be made,
(j) the CUSIP number or the Euroclear or CEDEL reference
numbers of such Security, if any (provided that the
notice may contain a disclaimer as to the accuracy of
such numbers), and
(k) if applicable, that a Holder of Securities who
desires to convert Securities for redemption must
satisfy the requirements for conversion contained in
such Securities, the then existing conversion price
or rate, and the date and time when the option to
convert shall expire.
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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 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. At least one
Business Day prior to any Redemption Date, the Issuer shall deposit with the
Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency 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 on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on and Additional Amounts with respect thereto, all the Securities or
portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency 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) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Issuer shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, 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
accrued interest and Additional Amounts, if any, to the Redemption Date;
provided, however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such interest;
and provided further that, except as otherwise provided, 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
relevant Record Dates 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 interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside 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 premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
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SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article) shall be surrendered at a Place of Payment therefor (with, if the
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, 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 depositary for such Security in global form as shall be specified
in the Issuer Order to the Trustee with respect thereto, without service charge,
a new Security 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 specified as contemplated by Section 301 for
Securities of such series.
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 such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any Securities
of any series, the cash amount of any mandatory 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.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENT WITH
SECURITIES. The Issuer may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any Securities previously
called for redemption) 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 Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, or which have otherwise been acquired by the Issuer; provided that
such Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Issuer will 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 in the currency or currencies,
currency 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) and the portion thereof, if any,
which is to be satisfied by delivering and crediting 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 delivered and credited. 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 30 days before each such
sinking fund payment date the Trustee
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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. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Issuer covenants that at least one Business Day
prior to the Repayment Date it will deposit 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 currency or
currencies, currency 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, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Issuer shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc., or a commercial bank or trust company in the United States setting forth
the name of the Holder of the Security, the principal amount of the Security,
the principal amount of the Security to be repaid, the CUSIP number, if any, or
a description of the tenor and terms of the Security, a statement that the
option to elect repayment is being exercised thereby and a guarantee that the
Security to be repaid, together with the duly completed form entitled "Option to
Elect Repayment" on the reverse of the Security will be received by the Trustee
not later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denominations for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Issuer.
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SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME
DUE AND PAYABLE. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Issuer on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Issuer shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the principal amount of such Security so to be repaid shall be paid by the
Issuer, together with accrued interest, if any, to the Repayment Date; provided,
however, that coupons whose Stated Maturity is on or prior to the Repayment Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
pursuant to Section 301, only upon presentation and surrender of such coupons;
and provided further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Issuer shall default
in the payment thereof) to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 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 as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal amount
(together with interest, if any, thereon, accrued to such Repayment Date) shall,
until paid, bear interest from the Repayment Date at the rate of, interest or
Yield to Maturity (in the case of Original Issue Discount Securities) set forth
in such Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security,
without service charge and at the expense of the Issuer, a new Registered
Security or Securities of the same series, of any authorized denomination
specified by the Holder, in an aggregate principal amount equal to and in
exchange for the portion of the principal of such Security so surrendered which
is not to be repaid.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision
is made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(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 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Issuer's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Issuer shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium
or Make-Whole Amount, if any) and interest and Additional Amounts, if any, on
such Securities and any coupons appertaining thereto when such payments are due
and any right of such Holder to exchange such Securities for other Securities,
(B) the Issuer's obligations 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 1012 (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 1404
below), (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Issuer may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Issuer's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Issuer shall be released from its obligations under
Sections 1004 to 1011, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 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 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
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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(d) or 501(h) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen 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 such currency, currencies or currency unit 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, currencies or currency unit 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 or Make-Whole Amount, if any)
and interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof, any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of (and
premium or Make-Whole Amount, 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 (ii) 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 or any
other material agreement or instrument to which the Issuer 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 Section 1402, the Issuer
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Issuer has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding 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 not be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Issuer
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities
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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 shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the covenant
defeasance under Section 1403 (as the case may be) have been complied with.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Issuer in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the
last paragraph of Section 1003, all money and Government Obligations (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 1405, the "Trustee") pursuant to Section 1404 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 or Make-Whole Amount, 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.
Unless otherwise specified with respect to any Security
pursuant to Section 301, in or pursuant to this Indenture or any Security if,
after a deposit referred to in Section 1404(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 or currency unit other than that in which the deposit pursuant to
Section 1404(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 1404(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 or Make-Whole Amount, 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 or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the applicable
market exchange rate for such currency or currency unit in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, 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 deposit pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding,
subject to Section 606, the Trustee shall deliver or pay to the Issuer from time
to time upon Issuer Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants
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expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE 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 action
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.
(a) 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, New York City, or in
London 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.
(b) In case at any time the Issuer, pursuant to a Board
Resolution, or any 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 made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Issuer 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, New York City, or in London for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of 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 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;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of 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 the reconvening of any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10
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days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting shall
be given as provided in Section 1502(a), except that such notice need to be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of any adjournment
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 adopted by the affirmative vote of the
persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities represented at such meeting; 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
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less 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 that 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 related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(a) there shall be no minimum quorum requirement for such
meeting; and
(b) the principal amount of the Outstanding Securities of
such series that vote in favor of such request,
demand, authorization, direction, notice, consent,
waiver or other action shall be taken into account in
determining whether such request, demand,
authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this
Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a 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.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been canceled
by the Issuer or by Holders of Securities
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as provided in Section 1502(b), in which case the Issuer 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.
(c) 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 the
Outstanding 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.
(d) 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
duplicate of all votes cast at the meeting. A record, at least in duplicate, 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
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Issuer and another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. EVIDENCE OF ACTION TAKEN BY HOLDERS. Any
request, demand, authorization, direction, notice consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Holders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by agent duly appointed in
writing, and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof and execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to
Article Six) conclusive in favor of the Trustee and the Issuer, if made in the
manner provided in this Article.
SECTION 1508. PROOF OF EXECUTION OF INSTRUMENTS. Subject to
Article Six, the execution of any instrument by a Holder or his agent or proxy
may be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
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ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. APPLICABILITY OF ARTICLE. Whenever this Indenture
provides for (a) 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 (b) 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 for
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 may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.,
as General Partner
By:
----------------------------------
Name:
Title:
Attest:
----------------------------
Title:
STATE STREET BANK AND TRUST COMPANY
OF MISSOURI, N.A., as Trustee
By:
----------------------------------
Name:
Title:
Attest:
----------------------------
Title:
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STATE OF )
) ss:
COUNTY OF _____________ )
On the ____ day of _____________, 1997, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he is ______ ___________________________________ of CRESCENT REAL ESTATE
EQUITIES, LTD., the general partner of CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, one of the parties described in and which executed the foregoing
instrument, and that he signed his name thereto by authority of the Board of
Directors.
{Notarial Seal}
--------------------------------
Notary Public
COMMISSION EXPIRES
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STATE OF MISSOURI)
) ss:
CITY OF ST. LOUIS)
On the _____ day of ____________, 1997, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is ____________________ of _____________________________, one of the
parties described in and which executed the foregoing instrument, and that he
signed his name thereto by authority of the Board of Directors.
{Notarial Seal}
--------------------------------
Notary Public
COMMISSION EXPIRES
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to a "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Crescent Real Estate Equities, Ltd. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia), and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise your promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to U.S. $ ____ of such
interest in the above-captioned Securities in respect of which we are not able
to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in
A-1
81
connection with which this certificate is or would be relevant, we irrevocably
authorize you to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: , 19
--------------------------------------------- --
(To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable)
(Name of Person Making Certification)
---------------------------------------
(Authorized Signatory)
Name:
Title:
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82
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A.A IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, {U.S.} ____________________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in the U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Crescent Real Estate
Equities, Ltd. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein "United States" means the United States of America
(including the States and the District of Columbia), and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
A-3
83
Dated: , 19
--------------------------------------------- --
(To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable)
{Xxxxxx Guaranty Trust Company of New York,
Brussels Office}, as Operator of the
Euroclear System {Cedel}
By:
-----------------------------------------
A-4
