1
EXHIBIT 4.4
================================================================================
AIMCO PROPERTIES, L.P.,
AS ISSUER
AND
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
AS GUARANTOR, IF APPLICABLE
SENIOR DEBT SECURITIES
----------------------
INDENTURE
Dated as of __________
----------------------
UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
================================================================================
2
CROSS REFERENCE TABLE(1)
--------------------------------------------------------------------------
TIA INDENTURE
SECTION SECTION
------- ---------
310 (a)(1).........................................................7.10
(a)(2).........................................................N.A.
(a)(3).........................................................N.A.
(a)(4).........................................................N.A.
(a)(5).........................................................7.10
(b)............................................................7.10
(b)(1).........................................................7.10
(c)............................................................N.A.
311 (a)............................................................7.11
(b)............................................................7.11
(c)............................................................N.A.
312 (a)............................................................N.A.
(b)............................................................13.3
(c)............................................................13.3
313 (a).............................................................7.6
(b).............................................................7.6
(c).............................................................7.6
(d)............................................................N.A.
314 (a).............................................................4.2
(b)............................................................N.A.
(c)(1).........................................................N.A.
(c)(2).........................................................N.A.
(c)(3).........................................................N.A.
(d)............................................................N.A.
(e)............................................................N.A.
(f)............................................................N.A.
315 (a)............................................................N.A.
(b).............................................................7.5
(c)............................................................N.A.
(d)............................................................N.A.
(e)............................................................N.A.
316 (a)(1)(A)......................................................N.A.
(a)(1)(B)......................................................N.A.
(a)(2).........................................................N.A.
(b)............................................................N.A.
(c)............................................................N.A.
--------
(1) Note: This Cross Reference Table shall not, for any purpose, be deemed to
be part of the Indenture.
- i -
3
TIA INDENTURE
SECTION SECTION
------- ---------
317 (a)(1).........................................................N.A.
(a)(2).........................................................N.A.
(b)............................................................N.A.
318 (a)............................................................N.A.
- ii -
4
TABLE OF CONTENTS(2)
RECITALS OF THE COMPANY ......................................................1
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE ...................................1
SECTION 1.1 Definitions ...............................................1
SECTION 1.2 Other Definitions .........................................6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act .........6
SECTION 1.4 Rules of Construction .....................................7
ARTICLE II
THE SECURITIES ...............................................................7
SECTION 2.1 Forms Generally ...........................................7
SECTION 2.2 Securities in Global Form .................................7
SECTION 2.3 Title, Terms and Denominations ............................8
SECTION 2.4 Execution, Authentication, Delivery and Dating ...........11
SECTION 2.5 Registrar and Paying Agent ...............................14
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust .......15
SECTION 2.7 Securityholder Lists .....................................15
SECTION 2.8 Transfer and Exchange ....................................15
SECTION 2.9 Replacement Securities ...................................18
SECTION 2.10 Outstanding Securities; Determinations of Holders'
Action ...................................................19
SECTION 2.11 Temporary Securities .....................................20
SECTION 2.12 Cancellation .............................................21
SECTION 2.13 Payment of Interest; Interest Rights Preserved ...........21
SECTION 2.14 Persons Deemed Owners ....................................22
SECTION 2.15 Computation of Interest ..................................23
ARTICLE III
REDEMPTION ..................................................................23
--------
(2) Note: This Table of Contents shall not, for any reasons, be deemed to be
part of the Indenture.
- iii -
5
SECTION 3.1 Right to Redeem; Notices to Trustee .......................23
SECTION 3.2 Selection of Securities to be Redeemed ....................23
SECTION 3.3 Notice of Redemption ......................................24
SECTION 3.4 Effect of Notice of Redemption ............................24
SECTION 3.5 Deposit of Redemption Price ...............................25
SECTION 3.6 Securities Redeemed in Part ...............................25
ARTICLE IV
COVENANTS ...................................................................25
SECTION 4.1 Payment of Securities .....................................25
SECTION 4.2 SEC Reports ...............................................26
SECTION 4.3 Compliance Certificate ....................................26
SECTION 4.4 Further Instruments and Acts ..............................26
SECTION 4.5 Maintenance of Office or Agency ...........................26
ARTICLE V
SUCCESSOR CORPORATION .......................................................27
SECTION 5.1 When Company May Merge or Transfer Assets .................27
ARTICLE VI
DEFAULTS AND REMEDIES .......................................................28
SECTION 6.1 Events of Default .........................................28
SECTION 6.2 Acceleration ..............................................29
SECTION 6.3 Other Remedies ............................................30
SECTION 6.4 Waiver of Past Defaults ...................................30
SECTION 6.5 Control by Majority .......................................31
SECTION 6.6 Limitation on Suits .......................................31
SECTION 6.7 Rights of Holders to Receive Payment ......................31
SECTION 6.8 Collection Suit by Trustee ................................32
SECTION 6.9 Trustee May File Proofs of Claim ..........................32
SECTION 6.10 Priorities ...............................................32
SECTION 6.11 Undertaking for Costs ....................................33
SECTION 6.12 Waiver of Stay, Extension or Usury Laws ..................33
- iv -
6
ARTICLE VII
TRUSTEE .....................................................................34
SECTION 7.1 Duties of Trustee .........................................34
SECTION 7.2 Rights of Trustee .........................................35
SECTION 7.3 Individual Rights of Trustee, etc .........................35
SECTION 7.4 Trustee's Disclaimer ......................................35
SECTION 7.5 Notice of Defaults ........................................35
SECTION 7.6 Reports by Trustee to Holders .............................36
SECTION 7.7 Compensation and Indemnity ................................36
SECTION 7.8 Replacement of Trustee ....................................37
SECTION 7.9 Successor Trustee by Merger ...............................39
SECTION 7.10 Eligibility; Disqualification .............................39
SECTION 7.11 Preferential Collection of Claims Against Company .........39
ARTICLE VIII
SATISFACTION AND DISCHARGE .................................................39
SECTION 8.1 Discharge of Liability on Securities ......................39
SECTION 8.2 Repayment to the Company ..................................40
SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance ........40
SECTION 8.4 Defeasance and Discharge ..................................40
SECTION 8.5 Covenant Defeasance .......................................41
SECTION 8.6 Condition to Defeasance or Covenant Defeasance ............41
ARTICLE IX
SUPPLEMENTAL INDENTURES ....................................................41
SECTION 9.1 Supplemental Indentures without Consent of Holders ........41
SECTION 9.2 Supplemental Indentures with Consent of Holders ...........42
SECTION 9.3 Compliance with Trust Indenture Act .......................44
SECTION 9.4 Revocation and Effect of Consents, Waivers and
Actions ...................................................44
SECTION 9.5 Notation on or Exchange of Securities .....................44
SECTION 9.6 Trustee to Sign Supplemental Indentures ...................44
SECTION 9.7 Effect of Supplemental Indentures .........................45
- v -
7
ARTICLE X
SINKING FUNDS ..............................................................45
SECTION 10.1 Applicability of Article .................................45
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities ....45
SECTION 10.3 Redemption of Securities for Sinking Fund ................46
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES ...........................................46
SECTION 11.1 Purposes for which Meetings may be Called ................46
SECTION 11.2 Call, Notice and Place of Meetings .......................46
SECTION 11.3 Persons Entitled to Vote at Meetings .....................47
SECTION 11.4 Quorum; Action ...........................................47
SECTION 11.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings ..................................48
SECTION 11.6 Counting Votes and Recording Action of Meetings ..........48
SECTION 11.7 Actions of Holders Generally .............................49
ARTICLE XII
GUARANTEES .................................................................50
SECTION 12.1 Guarantees ...............................................50
ARTICLE XIII
MISCELLANEOUS ..............................................................52
SECTION 13.1 Trust Indenture Act Controls .............................52
SECTION 13.2 Notices ..................................................52
SECTION 13.3 Communication by Holders with Other Holders ..............53
SECTION 13.4 Certificate and Opinion as to Conditions Precedent .......53
SECTION 13.6 Separability Clause ......................................54
SECTION 13.7 Rules by Trustee, Paying Agent and Registrar .............54
SECTION 13.8 Legal Holidays ...........................................54
SECTION 13.9 Governing Law ............................................55
SECTION 13.10 No Recourse Against Others ..............................55
SECTION 13.11 Successors ..............................................55
SECTION 13.12 Effect of Headings and Table of Contents ................55
SECTION 13.13 Benefits of Indenture ...................................55
SECTION 13.14 Multiple Originals ......................................55
- vi -
8
INDENTURE, dated as of ____________, by and among AIMCO Properties, L.P., a
Delaware limited partnership (the "Company"), Apartment Investment and
Management Company, a Maryland corporation (the "Guarantor"), and United States
Trust Company of New York, a New York corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
For value received, the execution and delivery by the Guarantor of this
Indenture to provide for the issuance of the Guarantee provided for herein (if
made applicable in accordance with Section 2.3) has been duly authorized. All
things necessary to make this Indenture a valid agreement of the Guarantor, in
accordance with its terms, have been done.
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
ratable benefit of the Holders of the Securities or each series thereof as
follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
"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 or cause the direction of 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.
"Board of Directors" means either the board of directors of the General
Partner of the Company or any committee of such board authorized with respect to
any matter to exercise the powers of the Board of Directors of the General
Partner of the Company.
9
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the General Partner of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that corporation.
"cash" means such coin or currency of the United States as at any time of
payment is legal tender for the payment of public and private debts.
"Company" means the party named as the "Company" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by the Chairman of the Board, any Vice
Chairman, the President or any Vice President of its General Partner, and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
its General Partner, and delivered to the Trustee or, with respect to Sections
2.4, 2.8, 2.11 and 7.2, any other employee of its General Partner named in an
Officers' Certificate delivered to the Trustee.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series issuable
or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a) as the Depositary with respect to such series of
Securities, until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such successor.
"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 6.2.
- 2 -
10
"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.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"General Partner" means the general partner of AIMCO Properties, L.P.
"Guarantee" means the unconditional guarantee of the payment of the
principal of or any premium or interest on the Guaranteed Securities by the
Guarantor, as more fully set forth in Article XII.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, that
complies with the requirements of Section 14(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" means, respectively, a written
request or order signed in the name of the Guarantor by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"Holder" or "Securityholder," when used with respect to any Security, means
a person in whose name a Security is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the Principal of such Security or an installment of Principal or, in the case of
a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to
- 3 -
11
Section 6.2, becomes due and payable as therein or herein provided, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
"Officer" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the General Partner of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by the Chairman of the Board, any Vice Chairman, the President or any
Vice President of its General Partner, and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of its General Partner, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, its
General Partner, the Trustee, or the Guarantor, as the case may be.
"Periodic Offering" means an offering of Securities of a series from time
to time the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the Stated Maturity or
Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where, subject to the provisions of Section 4.5, the
Principal of and any interest on the Securities of that series are payable as
specified as contemplated by Section 2.3(a).
"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 2.9 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
- 4 -
12
"Principal" or "Principal Amount" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"Redemption Date" or "redemption date," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"Redemption Price" or "redemption price," when used with respect to any
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securityholder" or "Holder," when used with respect to any Security, means
a person in whose name a Security is registered on the Registrar's books.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any issue means a date fixed by the Trustee pursuant to Section
2.13.
"Stated Maturity," when used with respect to any Security or any
installment of Principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which an amount equal to the Principal of
such Security or an installment of Principal thereof or interest thereon is due
and payable.
"Subsidiary" means, with respect to any person, a corporation of which a
majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries of such person or
(iii) one or more Subsidiaries of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"Trust Officer" means any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
- 5 -
13
"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"United States" means the United States of America, its territories, its
possessions (including the Commonwealth of Puerto Rico), and other areas subject
to its jurisdiction.
SECTION 1.2 Other Definitions.
Defined in
Term Section
---- ----------
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Date" 2.11
"Guaranteed Securities" 2.3
"Legal Holiday" 13.8
"Notice of Default" 6.1
"Outstanding" 2.10
"Paying Agent" 2.5
"Registrar" 2.5
SECTION 1.3 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
- 6 -
14
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 2.8 Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles in the
United States as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be in
substantially such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers executing such Securities as evidenced by their
execution of the Securities. The Officers' Certificate so establishing the form
of Security of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.4 for the authentication
and delivery of such Securities.
The permanent Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such Securities may be listed, all as determined by the
Officers executing such Securities as evidenced by their execution of such
Securities.
SECTION 2.2 Securities in Global Form. If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then,
- 7 -
15
notwithstanding clause (10) of Section 2.3(a) and the provisions of Section
2.3(b), any such Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount of any increase
or decrease in the amount of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by such person or
persons as shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 2.4 or Section 2.11. Subject to the provisions
of Section 2.4 and, if applicable, Section 2.11, the Trustee shall deliver and
redeliver any Security in global form in the manner and upon instructions given
by the person or persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 2.4 or 2.11 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion
of Counsel.
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 13.4 or 13.5 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 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless otherwise
specified as contemplated by Section 2.3(a), payment of Principal of and any
interest on any Security in global form shall be made to the person or persons
specified therein.
SECTION 2.3 Title, Terms and Denominations.
(a) The aggregate Principal Amount of Securities which may be authenticated
and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an Officers' Certificate of the Company, or established in one or
more indentures supplemental hereto:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
- 8 -
16
(2) any limit upon the aggregate Principal Amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5 or 10.3 and except for
any Securities which, pursuant to Section 2.4, are deemed never to have
been authenticated and delivered hereunder);
(3) whether any Securities of the series may be represented initially
by a Security in temporary or permanent global form and, if so, the initial
Depositary with respect to any such temporary or permanent global Security,
and if other than as provided in Section 2.8 or Section 2.11, as
applicable, whether and the circumstances under which beneficial owners of
interests in any such temporary or permanent global Security may exchange
such interests for Securities of such series and of like tenor of any
authorized form and denomination;
(4) the person to whom any interest on any Security of the series
shall be payable, if other than the person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, and the extent to which, or
the manner in which (including any certification requirement and other
terms and conditions under which), any interest payable on a temporary or
permanent global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities of the
series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be
payable and the Regular Record Date for any interest payable on any
Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on Securities of the series shall be
payable, any Securities of the series may be surrendered for registration
of transfer, Securities of the series may be surrendered for exchange and
notices and demands to or upon the Company in respect of the Securities of
the series and this Indenture may be served;
- 9 -
17
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which, Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, the conditions, if any,
giving rise to such obligation, and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in
part, and any provisions for the remarketing of such Securities;
(10) the denominations in which any Securities of the series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(11) if other than the Principal Amount thereof, the portion of the
Principal Amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.2;
(12) if other than as defined in Section 1.1, the meaning of "Business
Day" when used with respect to any Securities of the series;
(13) the terms and conditions, if any, upon which the Securities of
the series may or must be converted into securities of the Company or
exchanged for securities of the Company;
(14) any terms applicable to Original Issue Discount (as that term is
defined in the Internal Revenue Code of 1986 and the Regulations
thereunder), if any, including the rate or rates at which such Original
Issue Discount, if any, shall accrue;
(15) if the Securities of the series may be issued or delivered
(whether upon original issuance or upon exchange of a temporary Security of
such series or otherwise), or any installment of Principal of or any
interest is payable, only upon receipt of certain certificates or other
documents or satisfaction of other conditions in addition to those
specified in this Indenture, the form and terms of such certificates,
documents or conditions;
(16) if the Guarantor has guaranteed the obligations of the Company
with respect to the Securities of the series (any such guaranteed
securities being "Guaranteed Securities"); and
- 10 -
18
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 9.1(7)).
All Securities of any one series shall be substantially identical except as
to denomination and the rate or rates of interest, if any, and Stated Maturity,
the date from which interest, if any, shall accrue and except as may otherwise
be provided in or pursuant to an Officers' Certificate pursuant to this Section
2.3(a) 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 for issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such series.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of any appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the General Partner of
the Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of the series. With respect to
Securities of a series subject to a Periodic Offering, such Board Resolution or
Officers' Certificate may provide general terms for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by the Chairman of the Board, any
Vice Chairman, the President or any Vice President of its General Partner, or
the Treasurer or any Assistant Treasurer of its General Partner, under its
corporate seal reproduced thereon attested by the Secretary or any Assistant
Secretary of its General Partner. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the General Partner of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to
- 11 -
19
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if
any, and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing.
If the forms or terms of the Securities of the series have been established
in or pursuant to one or more Officers' Certificates as permitted by Sections
2.1 and 2.3(a), in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form and terms of such Securities have been duly authorized by
the Company and established in conformity with the provisions of this Indenture;
and
(b) that such Securities when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms of such
Securities (when established in accordance with such procedures as may be
specified from time to time in a Company Order, all as contemplated by and
in accordance with a Board Resolution or an Officers' Certificate pursuant
to Section
- 12 -
20
2.3(a), as the case may be) will have been, duly authorized by the Company
and established in conformity with the provisions of this Indenture; and
(y) that such Securities when (1) executed by the Company, (2)
completed, authenticated and delivered by the Trustee in accordance with
this Indenture, and (3) issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in accordance
with their terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic Offering, the
Trustee may conclusively rely, as to the authorization by the Company of any of
such Securities, the form and terms thereof and the legality, validity, binding
effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities
of such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding three
paragraphs, if all Securities of a series are subject to a Periodic Offering, it
shall not be necessary to deliver the Officers' Certificate otherwise required
pursuant to Section 2.3(a) at or prior to the time of authentication of each
Security of such series if such Officers' Certificate is delivered at or prior
to the authentication upon original issuance of the first Security of such
series to be issued.
Each Security shall be dated the date of its authentication.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
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. The Trustee's certificate of authentication shall be in substantially
the following form:
- 13 -
21
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
United States Trust Company of New York, as
Trustee
By:
----------------------------------------
Authorized Signatory
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, 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 2.5 Registrar and Paying Agent. The Company or the Guarantor (if
the Securities are Guaranteed Securities) shall maintain, with respect to each
series of Securities, an office or agency where such Securities may be presented
for registration of transfer or for exchange ("Registrar") and, in the Borough
of Manhattan, The City of New York, an office or agency where such Securities
may be presented for purchase or payment ("Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company or the Guarantor, as the case may be, may have one or more co-registrars
and one or more additional paying agents. The term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with respect
to each series of Securities with any Registrar, Paying Agent or co-registrar
(if not the Trustee). The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of any such agent. If the Company or the Guarantor (if the
Securities are Guaranteed Securities) fails to maintain a Registrar or Paying
Agent for a particular series of Securities, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.7.
The Company or the Guarantor, as the case may be, or any Subsidiary or an
Affiliate of either of them may act as Paying Agent, Xxxxxxxxx xx xx-xxxxxxxxx.
- 00 -
00
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust. Except as
otherwise provided herein, prior to or on each due date of payments in respect
of any series of Securities, the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall deposit with the Paying Agent with respect to such
Securities a sum of money sufficient to make such payments when so becoming due.
The Company or the Guarantor, as the case may be, shall require each Paying
Agent (other than the Trustee) to agree in writing that the Paying Agent shall
hold in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the making of payments in respect of the Securities of such
series and shall notify the Trustee of any default by the Company or the
Guarantor, as the case may be, in making any such payment. At any time during
the continuance of any such default, a Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money so held in trust
with respect to such Securities. If the Company or the Guarantor, as the case
may be, or a Subsidiary or an Affiliate of either of them acts as Paying Agent
for a series of Securities, it shall segregate the money held by it as Paying
Agent with respect to such Securities and hold it as a separate trust fund. The
Company or the Guarantor, as the case may be, at any time may require a Paying
Agent for a series of Securities to pay all money held by it with respect to
such Securities to the Trustee and to account for any money disbursed by it.
Upon doing so, such Paying Agent shall have no further liability for the money.
SECTION 2.7 Securityholder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of each series of Securities. If the Trustee is
not the Registrar for any series of Securities, the Company or the Guarantor (if
the Securities are Guaranteed Securities) shall cause to be furnished to the
Trustee at least semiannually on June 1 and December 1 a listing of Holders of
such series of Securities dated within 15 days of the date on which the list is
furnished and at such other times as the Trustee may request in writing a list
in such form and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders of such series of Securities.
SECTION 2.8 Transfer and Exchange. Upon surrender for registration of
transfer of any Security at the office or agency of the Company or the Guarantor
(if the Securities are Guaranteed Securities) designated pursuant to Section 4.5
for such purpose, the Company and the Guarantor, as the case may be, shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate Principal Amount
and tenor. The Company and the Guarantor, as the case may be, shall not charge a
service charge for any registration of transfer or exchange, but the Company and
the Guarantor, as the case may be, may require payment of a sum sufficient to
pay all taxes, assessments or other governmental charges that may be imposed in
connection with
- 15 -
23
the transfer or exchange of the Securities from the Securityholder requesting
such transfer or exchange (other than any exchange of a temporary Security for a
definitive Security not involving any change in ownership or any exchange
pursuant to Section 2.11, 3.6, 9.5 or 10.3, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set forth
in the sixth and seventh paragraphs) of this Section, a Security in global form
representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series of any authorized denomination or
denominations, of a like aggregate Principal Amount and tenor, upon surrender of
the Securities to be exchanged at the office or agency of the Company or the
Guarantor (if the Securities are Guaranteed Securities) designated as such
pursuant to Section 4.5 for the purpose of exchanges of Securities of such
series. Whenever any Securities are so surrendered for exchange, the Company and
the Guarantor (if the Securities are Guaranteed Securities) shall execute, and
the Trustee or a duly appointed authenticating agent shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If at any time the Depositary for the Securities of a series notifies the
Company or the Guarantor (if the Securities are Guaranteed Securities) that it
is unwilling or unable to continue as Depositary for the Securities of such
series, the Company or the Guarantor, as the case may be, shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company or the Guarantor, as the case may be, within 90 days after the Company
or the Guarantor, as the case may be, receives such notice, the Company or the
Guarantor, as the case may be, will execute, and the Trustee, upon receipt of a
Company Order or Guarantor Order, as the case may be, for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate Principal Amount
equal to the Principal Amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
may at any time and in its sole discretion determine that the Securities of any
series issued in the form of one or more global Securities shall no longer be
represented by such global Security or Securities. In such event the Company or
the Guarantor, as the case may be, will execute, and the Trustee, upon receipt
of a Company Order or Guarantor Order, as the case may be, for the
authentication and delivery of definitive Securities of such series,
- 16 -
24
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Security are entitled to
exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall deliver to the Trustee definitive Securities in aggregate
Principal Amount equal to the Principal Amount of such permanent global
Security, executed by the Company or the Guarantor, as the case may be,. On or
after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Depositary with respect
thereto to the Trustee, as the Company's (or the Guarantor's, as the case may
be), 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 permanent 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
permanent global Security to be exchanged; provided, however, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date. If a 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 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.
Upon the exchange of a Security in global form for Securities in definitive
form, such Security in global form shall be cancelled by the Trustee. Securities
issued in exchange for a Security in global form pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Security in global form, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
Trustee shall deliver such Securities to the persons in whose names such
Securities are so registered.
- 17 -
25
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor (if
such Securities are Guaranteed Securities), evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company, the Guarantor or the Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Guarantor, as the case may be, and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of business 15
days before any selection of Securities of that series to be redeemed and ending
(except as otherwise provided in the first proviso in the eighth paragraph of
this Section 2.8) at the close of business on the day of the mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 2.9 Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the
Company, the Guarantor (if the Securities are Guaranteed Securities) or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company and the Guarantor (if the Securities are Guaranteed Securities) shall
execute and upon its written request the Trustee shall authenticate and deliver,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company or the Guarantor (if the
Securities are Guaranteed Securities) in its discretion may, instead of issuing
a new Security, pay such Security.
- 18 -
26
Upon the issuance of any new Securities under this Section, the Company or
the Guarantor (if the Securities are Guaranteed Securities) may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company and the Guarantor (if the
Securities are Guaranteed Securities), whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and any such new
Security shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of that issue duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10 Outstanding Securities; Determinations of Holders' Action.
Securities of any series "Outstanding" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "Outstanding" because the Company or the
Guarantor (if the Securities are Guaranteed Securities) or an Affiliate thereof
holds the Security; provided, however, that in determining whether the Holders
of the requisite Principal Amount of Outstanding Securities have given or
concurred in any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or the Guarantor, as the case
may be, or any other obligor upon the Securities or any Affiliate of the Company
or the Guarantor, as the case may be, or such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which 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 Company or the
Guarantor, as the case may be, or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor, as the case may be, or of such other
obligor. Subject to the foregoing, only Securities outstanding at the time of
such determination shall be considered in any such determination (including,
without limitation, determinations pursuant to Articles VI and IX). In addition,
in determining whether the Holders of the requisite Principal Amount of
Outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, the Principal
Amount of a Discount
- 19 -
27
Security that shall be deemed to be Outstanding shall be the amount of the
Principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section
6.2.
If a Security has been paid pursuant to Section 2.9 or in exchange for or
in lieu of which another Security has been authenticated and delivered pursuant
to this Indenture, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Trustee (other than the Company or the Guarantor (if the Securities
are Guaranteed Securities)) holds, in accordance with this Indenture, on a
Redemption Date or on Stated Maturity, money sufficient to pay Securities
payable on that date, then on and after that date such Securities shall cease to
be outstanding and interest, if any, on such Securities shall cease to accrue;
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.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company or the Guarantor (if the Securities are
Guaranteed Securities) may execute, and upon Company Order or Guarantor Order,
as the case may be, 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, 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.
If temporary Securities for some or all of the Securities of any series are
issued, the Company or the Guarantor (if the Securities are Guaranteed
Securities) will cause definitive Securities representing such Securities to be
prepared without unreasonable delay. After the preparation of such definitive
Securities, the temporary Securities shall be exchangeable for such definitive
Securities of like tenor upon surrender of the temporary Securities at the
office or agency of the Company or the Guarantor, as the case may be, designated
as such pursuant to Section 4.5 for the purpose of exchanges of Securities of
such series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company or the Guarantor,
as the case may be, shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like Principal Amount of definitive Securities of the
same series and of like tenor of authorized denominations. Until so exchanged
the temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
- 20 -
28
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 permanent Securities of the same series and of like tenor
authenticated and delivered hereunder.
SECTION 2.12 Cancellation. All Securities surrendered for payment,
redemption, registration of transfer or exchange, or for credit against any
sinking fund payment, shall, if surrendered to any person other than the
Trustee, be delivered to the Trustee and all Securities so delivered shall be
promptly cancelled by it. The Company or the Guarantor (if the Securities are
Guaranteed Securities) may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company or the Guarantor, as the case may be, may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) and may deliver to the Trustee (or to any
other person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company or the Guarantor, as the case may be, may not reissue, or issue new
Securities to replace, Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted in the form of Securities for any particular series or as permitted by
this Indenture. All cancelled Securities held by the Trustee shall be destroyed
by the Trustee and evidence of their destruction delivered to the Company or the
Guarantor, as the case may be, unless the Company or the Guarantor, as the case
may be, directs by Company Order or Guarantor Order, as the case may be, that
the Trustee deliver cancelled Securities to the Company or the Guarantor, as
the case may be.
SECTION 2.13 Payment of Interest; Interest Rights Preserved. Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the person
in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor (if the
Securities are Guaranteed Securities), at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may elect to make payment of any Defaulted Interest to the
persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered
- 21 -
29
at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company or the Guarantor, as the case may be, shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment, and at the same time the
Company or the Guarantor, as the case may be, shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company or the
Guarantor, as the case may be, of such Special Record Date and, in the
name and at the expense of the Company or the Guarantor, as the case may
be, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may make payment of any Defaulted Interest on the Securities in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company or the Guarantor, as the case may be, 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 2.8, 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 2.14 Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Guarantor (if the Securities are
Guaranteed Securities), the Trustee and any agent of the Company, the Guarantor
(if the Securities are Guaranteed Securities) or the Trustee may treat the
person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of Principal
- 22 -
30
of and (except as otherwise specified as contemplated by Section 2.3(a) and
subject to Section 2.8 and Section 2.13) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Guarantor (if the Securities are Guaranteed Securities), the
Trustee nor any agent of the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Trustee shall be affected by notice to the
contrary.
None of the Company, the Guarantor (if the Securities are Guaranteed
Securities), the Trustee, any Paying Agent or the 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.
SECTION 2.15 Computation of Interest. Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on
any Securities which bear interest at a fixed rate shall be computed on the
basis of a 360-day year comprised of twelve 30-day months and (ii) interest on
any Securities which bear interest at a variable rate shall be computed on the
basis of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 Right to Redeem; Notices to Trustee. 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 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, within the time period set
forth below, notify the Trustee in writing of the Redemption Date, the Principal
Amount and any other information necessary to identify the Securities of such
series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 Selection of Securities to be Redeemed. Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the Trustee shall
select the particular Securities to be redeemed by a method the Trustee
considers fair and appropriate, which method may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of
- 23 -
31
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 make the selection
not more than 60 days before the Redemption Date from Outstanding Securities of
such series not previously called for redemption. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption. The Trustee shall notify the Company promptly
in writing of the Securities to be redeemed and, in the case of any portions of
Securities to be redeemed, the principal amount thereof to be redeemed.
SECTION 3.3 Notice of Redemption. Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the place or places where such Securities, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption Price;
and
(6) that the redemption is for a sinking fund, if such is the case.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
SECTION 3.4 Effect of Notice of Redemption. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall cease to bear interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the
- 24 -
32
Redemption Price, together with accrued interest to the Redemption Date;
provided, however, that, unless otherwise specified as contemplated by Section
2.3(a), installments of interest on 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 Regular Record Dates according to their terms and the
provisions of Sections 2.8 and 2.13.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the Principal shall, until paid, bear interest from the
Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 Deposit of Redemption Price. Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company designated therefor pursuant to Section 4.5 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and, upon such surrender,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security a new Security or Securities of the same series and of
like tenor, in an authorized denomination, as requested by such Holder, equal in
aggregate Principal Amount to, and in exchange for, the unredeemed portion of
the Principal of the Security surrendered.
- 25 -
33
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities. The Company or the Guarantor (if the
Securities are Guaranteed Securities) shall promptly make all payments in
respect of each series of Securities on the dates and in the manner provided in
the Securities and, to the extent not otherwise so provided, pursuant to this
Indenture. An installment of Principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or a Paying Agent (other
than the Company or the Guarantor, as the case may be, or an Affiliate of the
Company or the Guarantor, as the case may be) holds on that date funds
designated for and sufficient to pay such installment. At the Company's or the
Guarantor's (if the Securities are Guaranteed Securities) option, payments of
Principal or interest may be made by check or by transfer to an account
maintained by the payee.
SECTION 4.2 SEC Reports. The Company or the Guarantor (if the Securities
are Guaranteed Securities) shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information, documents and other
reports with the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company or the Guarantor, as the
case may be, also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.3 Compliance Certificate. The Company and the Guarantor (if the
Securities are Guaranteed Securities) shall each deliver to the Trustee within
120 days after the end of each of their respective fiscal year (beginning with
the first fiscal year ending on or after the date hereof), an Officers'
Certificate and Guarantor's Officers' Certificate, as the case may be, stating
whether or not the signers know of any Default that occurred during such period.
If they do, such Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, shall describe the Default and its status.
SECTION 4.4 Further Instruments and Acts. Upon request of the Trustee, the
Company and the Guarantor (if the Securities are Guaranteed Securities) will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
SECTION 4.5 Maintenance of Office or Agency. The Company or the Guarantor
(if the Securities are Guaranteed Securities) will maintain in the Borough of
Manhattan, the City of New York, an office or agency where 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,
- 26 -
34
purchase or redemption and where notices and demands to or upon the Company or
the Guarantor, as the case may be, in respect of the Securities of that series
and this Indenture may be served. The office of the Trustee in New York, New
York shall be such office or agency for all of the aforesaid purposes unless the
Company or the Guarantor, as the case may be, shall maintain some other office
or agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change in the location, of such other office or agency.
If at any time the Company or the Guarantor, as the case may be, shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.2, and the Company or the Guarantor, as the case may be,
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
may also from time to time designate one or more other offices or agencies where
the Securities of one or more series may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company or the Guarantor, as the case may be, 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 Company or the Guarantor, as the
case may be, 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.
ARTICLE X
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge or Transfer Assets. The Company and the
Guarantor (if the Securities are Guaranteed Securities) shall not consolidate
with or merge with or into any other person or convey, transfer or lease its
properties and assets substantially as an entirety to any person, unless:
(a) either (1) the Company or the Guarantor, as the case may be, shall
be the continuing entity or (2) the person (if other than the Company or
the Guarantor, as the case may be) formed by such consolidation or into
which the Company or the Guarantor, as the case may be, is merged or the
person which acquires by conveyance, transfer or lease the properties and
assets of the Company or the Guarantor, as the case may be, substantially
as an entirety (i) shall be a corporation, partnership or trust organized
and validity existing under the laws of the United States or any state
thereof or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto,
- 27 -
35
executed and delivered to the Trustee, in form satisfactory to the Trustee,
all of the obligations of the Company or the Guarantor, as the case may be,
under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate or, if applicable, the Guarantor shall have delivered to the
Trustee a Guarantor's Officers' Certificate, and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and that
all conditions precedent herein relating to such transaction have been
satisfied.
The successor person formed by such consolidation or into which the Company
or the Guarantor, as the case may be, is merged or the successor person to which
such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company or the Guarantor, as
the case may be, under this Indenture, with the same effect as if such successor
had been named as the Company or the Guarantor, as the case may be, herein; and
thereafter, except in the case of a lease of its properties and assets
substantially as an entirety, the Company or the Guarantor, as the case may be,
shall be discharged from all obligations and covenants under this Indenture and
the Securities.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default. Unless otherwise specified as contemplated
by Section 2.3(a) with respect to any series of securities, an "Event of
Default" occurs, with respect to each series of the Securities individually, if:
(1) the Company or the Guarantor (if the Securities are Guaranteed
Securities) defaults in (a) the payment of the principal of any Security of
such series at its Maturity or (b) the payment of any interest upon any
Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(2) the Company or the Guarantor (if the Securities are Guaranteed
Securities) fails to comply with any of its agreements in the Securities or
this Indenture (other than those referred to in clause (1) above and other
than a covenant or warranty a default in whose performance or whose breach
is elsewhere in this Section
- 28 -
36
specifically dealt with or which has been expressly included in this
Indenture solely for the benefit of another series of Securities) and such
failure continues for 60 days after receipt by the Company or the
Guarantor, as the case may be, of a Notice of Default;
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the Company
or the Guarantor, as the case may be, in an involuntary case or proceeding
under any applicable Bankruptcy Law or (b) a decree or order adjudging the
Company or the Guarantor, as the case may be, bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company or the Guarantor, as the case may be, under any
applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
the Company or the Guarantor, as the case may be, or of any substantial
part of its property, or ordering the wind up or liquidation of its
affairs, and any such decree or order for relief shall continue to be in
effect, or any such other decree or order shall be unstayed and in effect,
for a period of 60 consecutive days;
(4) (a) the Company or the Guarantor (if the Securities are Guaranteed
Securities) commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt
or insolvent, (b) the Company or the Guarantor, as the case may be,
consents to the entry of a decree or order for relief in respect of the
Company or the Guarantor, as the case may be, in an involuntary case or
proceeding under any applicable Bankruptcy Law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, (c) the Company
or the Guarantor, as the case may be, files a petition or answer or consent
seeking reorganization or substantially comparable relief under any
applicable federal or state law, (d) the Company or the Guarantor, as the
case may be, (x) consents to the filing of such petition or the appointment
of, or taking possession by, a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or the Guarantor,
as the case may be, or of any substantial part of its property, (y) makes
an assignment for the benefit of creditors or (z) admits in writing its
inability to pay its debts generally as they become due or (e) the Company
or the Guarantor, as the case may be, takes any action in furtherance of
any such actions in this clause (4); or
(5) any other Event of Default provided with respect to Securities of
that series.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
- 29 -
37
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of such series notify the Company, the Guarantor, as the
case may be, and the Trustee, of the Default and the Company or the Guarantor,
as the case may be, does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
SECTION 6.2 Acceleration. If an Event of Default with respect to Securities
of any series at the time Outstanding (other than an Event of Default specified
in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by notice to the
Company and the Guarantor (if the Securities are Guaranteed Securities), or the
Holders of at least 25% in aggregate Principal Amount of the Outstanding
Securities of that series by notice to the Company, the Guarantor, as the case
may be, and the Trustee, may declare the Principal Amount (or, if any of the
Securities of that series are Discount Securities, such portion of the Principal
Amount of such Securities as may be specified in the terms thereof) of all the
Securities of that series to be immediately due and payable. Upon such a
declaration, such Principal (or portion thereof) shall be due and payable
immediately. If an Event of Default specified in Section 6.1(3) or (4) occurs
and is continuing, the Principal (or portion thereof) of all the Securities of
that series shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholders. The
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series, by notice to the Trustee (and without notice to any
other Securityholder) may rescind an acceleration with respect to that series
and its consequences if the rescission would not conflict with any judgment or
decree and all existing Events of Default with respect to Securities of such
series have been cured or waived except nonpayment of the Principal (or portion
thereof) of Securities of such series that has become due solely as a result of
such acceleration and if all amounts due to the Trustee under Section 7.7 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.3 Other Remedies. If an Event of Default with respect to a series
of Outstanding Securities occurs and is continuing, the Trustee may pursue any
available remedy to (a) collect the payment of the whole amount then due and
payable on such Securities for Principal and interest, with interest upon the
overdue Principal and, to the extent that payment of such interest shall be
legally enforceable, upon overdue installments of interest from the date such
interest was due, at the rate or rates prescribed therefor in such Securities
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including amounts due the Trustee under
Section 7.7 or (b) enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing
- 30 -
38
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of, or acquiescence in, the Event of Default. No remedy is exclusive of
any other remedy. All available remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series, by notice to the
Trustee (and without notice to any other Securityholder), may on behalf of the
Holders of all the Securities of such series waive an existing Default with
respect to such series and its consequences except (1) an Event of Default
described in Section 6.1(1) with respect to such series or (2) a Default in
respect of a provision that under Section 9.2 cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected. When
a Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.5 Control by Majority. The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits. A Holder of any Security of any series may
not pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
- 31 -
39
A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 Rights of Holders to Receive Payment. Notwithstanding any other
provision of this Indenture, the right, which is absolute and unconditional, of
any Holder of any Security to receive payment of the Principal of and (subject
to Section 2.13) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) held by such Holder, on or after the respective due dates expressed in the
Securities or any Redemption Date, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected adversely without the consent of each such Holder.
SECTION 6.8 Collection Suit by Trustee. If an Event of Default described in
Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or the Guarantor, as the case may be, for
the whole amount owing with respect to such series of Securities and the amounts
provided for in Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company, the Guarantor (if the Securities are Guaranteed Securities) or any
other obligor upon the Securities or the property of the Company, the Guarantor,
as the case may be, or of such other obligor or their creditors, the Trustee
(irrespective of whether the Principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company or the Guarantor,
as the case may be, for the payment of overdue Principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section 7.7)
and of the Holders of Securities allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliver able on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making
- 32 -
40
of such payments directly to the Holders of Securities, to pay the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.7.
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
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder of a Security in any such
proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money pursuant to this
Article 6, it shall pay out the money in the following order and, in case of the
distribution of such money on account of Principal or interest, upon
presentation of the Securities, 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 Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid for the Principal and
interest on the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for Principal and
interest, respectively; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 6.11 does not apply to a suit by the Trustee, a
suit by a Holder pursuant to Section 6.7 or a suit by Holders of more than 10%
in aggregate Principal Amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder of any Security for the enforcement of the
payment of the Principal of or interest on any Security on or after the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
- 33 -
41
SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The Company and the
Guarantor (if the Securities are Guaranteed Securities), in each case, 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 stay or extension law or any usury or other law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company and the Guarantor, as the
case may be, (to the extent that it may lawfully do so), hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and shall not be liable except
for the performance of such duties; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
- 34 -
42
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) 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 not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 Rights of Trustee. (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
SECTION 7.3 Individual Rights of Trustee, etc. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates or with the Guarantor
(if the Securities are Guaranteed Securities) or its Affiliates, with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar or any other agent of the Company or the Guarantor, as the case may
be, may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
- 35 -
43
SECTION 7.4 Trustee's Disclaimer. The Trustee makes no representation as to
the validity or adequacy of this Indenture or the Securities. The Trustee shall
not be account able for the Company's or the Guarantor's (if the Securities are
Guaranteed Securities) use of the proceeds from the Securities and shall not be
responsible for any statement in the registration statement for the Securities
under the Securities Act of 1933, as amended, or in the Indenture or the
Securities (other than its certificate of authentication) or for the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.5 Notice of Defaults. If a Default with respect to the Securities
of any series occurs and is continuing and if it is known to the Trustee, the
Trustee shall give to each Holder of Securities of such series notice of such
Default in the manner set forth in TIA Section 315(b) within 90 days after it
occurs. The Trustee shall have no duty to inquire as to the performance of the
Company's or the Guarantor's (if the Securities are Guaranteed Securities)
covenants in Article IV hereof. In addition, the Trustee shall not be deemed to
have knowledge of any Default or Event of Default except (i) any Event of
Default occurring pursuant to Section 4.1 or 6.1(l), or (ii) any Default or
Event of Default of which the Trustee shall have received written notification
or obtained actual knowledge.
SECTION 7.6 Reports by Trustee to Holders. Within 60 days after each May 15
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of Securities
shall be filed with the SEC and each stock exchange on which the Securities of
that series may be listed. The Company and the Guarantor (if the Securities are
Guaranteed Securities) agrees to notify the Trustee whenever the Securities of a
particular series become listed on any stock exchange and of any delisting
thereof.
SECTION 7.7 Compensation and Indemnity. The Company and the Guarantor (if
the Securities are Guaranteed Securities) each agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances 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
- 36 -
44
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
To secure the Company's and the Guarantor's (if the Securities are
Guaranteed Securities) payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the Principal of or
interest, if any, on particular Securities.
The Company's and the Guarantor's (if the Securities are Guaranteed
Securities) payment obligations pursuant to this Section 7.7 shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee. The Trustee may resign by so notifying
the Company and the Guarantor (if the Securities are Guaranteed Securities);
provided, however, no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.8. The Holders
of a majority in aggregate Principal Amount of the Outstanding Securities of any
series at the time outstanding may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee and may appoint a
successor Trustee. The Company and the Guarantor (if the Securities are
Guaranteed Securities) shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of one or more series,
the Company or the Guarantor (if the Securities are Guaranteed Securities) shall
promptly appoint, by resolution of their respective boards of directors, as
applicable, a successor Trustee with respect to the Securities of that or those
series (it being understood that any such successor
- 37 -
45
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 series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company and
the Guarantor (if the Securities are Guaranteed Securities). Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the Guarantor
(if the Securities are Guaranteed Securities), the retiring Trustee and each
successor Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-Trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company, the Guarantor (if the Securities are Guaranteed Securities) 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, subject, nevertheless, to its
lien, if any, provided for in Section 7.7.
- 38 -
46
If a successor Trustee with respect to the Securities of any series does
not take office within 30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of a majority in aggregate Principal
Amount of the Outstanding Securities of such series at the time outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of any series fails to comply
with Section 7.10, any Holder of a Security of such series may petition any
court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
SECTION 7.9 Successor Trustee by Merger. If the Trustee consolidates with,
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b). In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed incorporated
herein.
SECTION 7.11 Preferential Collection of Claims Against Company. The Trustee
shall comply with TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 Discharge of Liability on Securities. Except as otherwise
provided as contemplated by Section 2.3(a), when (a) the Company or the
Guarantor (if the Securities are Guaranteed Securities) delivers to the Trustee
for cancellation all Outstanding Securities or all Outstanding Securities of
any series, as the case may be, theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
- 39 -
47
in trust by the Company or the Guarantor, as the case may be, and thereafter
repaid to the Company or the Guarantor, as the case may be, or discharged from
such trust, as provided in Section 2.6), or (b) all Outstanding Securities or
all Outstanding Securities of any series have become due and payable and the
Company or the Guarantor, as the case may be, deposits with the Trustee cash
sufficient to pay at Stated Maturity the Principal Amount of all Principal of
and interest on such Outstanding Securities (other than Securities replaced
pursuant to Section 2.9), and if in either case the Company or the Guarantor, as
the case may be, pays all other sums payable hereunder by the Company or the
Guarantor, as the case may be, then this Indenture shall, subject to Section
7.7, cease to be of further effect as to such Outstanding Securities. The
Trustee shall join in the execution of a document prepared by the Company or the
Guarantor, as the case may be, acknowledging satisfaction and discharge of this
Indenture on demand of the Company or the Guarantor, as the case may be,
accompanied by an Officers' Certificate or Guarantor's Officers' Certificate,
respectively, and Opinion of Counsel and at the cost and expense of the Company
or the Guarantor, as the case may be.
SECTION 8.2 Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company or the Guarantor (if the Securities are Guaranteed
Securities) on Company Request or Guarantor Request, as the case may be, any
money held by them for the payment of any amount with respect to the Securities
that remains unclaimed for two years; provided, however, that the Trustee or
such Paying Agent, before being required to make any such return, may at the
expense and direction of the Company or the Guarantor, as the case may be, mail
to each Holder of such Securities 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 mailing, any unclaimed money then remaining will be returned to
the Company or the Guarantor, as the case may be. After return to the Company or
the Guarantor, as the case may be, Holders entitled to the money must look to
the Company or the Guarantor, as the case may be, for payment as general
creditors unless an applicable abandoned property law designates another
person.
SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance. Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in this Article VIII.
SECTION 8.4 Defeasance and Discharge. Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.4, the Company and the
Guarantor (if the Securities are Guaranteed Securities) each shall be deemed to
have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company and the
Guarantor, as the case may be, shall be deemed to have
- 40 -
48
paid and discharged the entire indebtedness represented by the defeased
Securities, which shall thereafter be deemed to be "outstanding" only for the
purposes of Sections 2.4, 2.5, 2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7,
7.8 and 8.2 of this Indenture and to have satisfied all its other obligations
under such series of Securities and this Indenture insofar as such series of
Securities are concerned (and the Trustee, at the expense of the Company and,
upon written request, shall execute proper instruments acknowledging the same).
Subject to compliance with this Article VIII, the Company may exercise its
option under this Section 8.4 notwithstanding the prior exercise of its option
under Section 8.5 with respect to a series of Securities.
SECTION 8.5 Covenant Defeasance. Upon the Company's exercise under Section
8.3 of the option applicable to this Section 8.5, the Company and the Guarantor,
as the case may be, shall be released from its obligations under Sections 4.2
and 4.3 and Article V and such other provisions as may be provided as
contemplated by Section 2.3(a) with respect to Securities of a particular series
and with respect to the Defeased Securities on and after the date the conditions
set forth below are satisfied (hereinafter "covenant defeasance"), and the
Defeased Securities 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 if any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Defeased
Securities, the Company and the Guarantor, as the case may be, 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 Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provisions herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1 but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
SECTION 8.6 Condition to Defeasance or Covenant Defeasance. It shall be a
condition to the application of either Section 8.4 or Section 8.5 to a series of
outstanding Securities that the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall have irrevocably deposited with the Trustee, in
trust, (i) sufficient funds to pay the Principal of and interest to Stated
Maturity (or redemption) on, the Securities of such series, or (ii) such amount
of direct obligations of, or obligations the principal of and interest on which
are fully guaranteed by, the government of the United States, and which are not
subject to prepayment, redemption or call, as will, together with the
predetermined and certain income to accrue thereon without consideration of any
reinvestment thereof, be sufficient to pay when due the Principal of, and
interest to Stated Maturity (or redemption) on, the Securities of such series.
- 41 -
49
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders. Without the
consent of any Holders of Securities, the Company, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company
or the Guarantor, as the case may be, and the assumption by any such
successor of the covenants of the Company or the Guarantor, as the case may
be, herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the Company
or the Guarantor, as the case may be, for the benefit of the Holders of all
of the Securities or any series thereof, or to surrender any right or power
herein conferred upon the Company or the Guarantor, as the case may be; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3(a), respectively; or
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 7.8; or
(5) to cure any ambiguity, defect or inconsistency; or
(6) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(7) to secure the Securities; or
(8) to make any other change that does not adversely affect the rights
of any Securityholder.
- 42 -
50
SECTION 9.2 Supplemental Indentures with Consent of Holders. With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Trustee may amend this Indenture or the
Securities of any series or 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 the Securities of such
series under this Indenture; provided, however, that no such amendment or
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the Principal of, or any installment
of Principal of or interest on, any such Security, or reduce the Principal
Amount thereof or the rate of interest thereon or any premium payable upon
redemption thereof or reduce the amount of Principal of any such Discount
Security that would be due and payable upon a declaration of acceleration
of maturity thereof pursuant to Section 6.2, or change the Place of
Payment, or change the coin or currency in which any Principal of, or any
installment of interest on, any such Security is payable, or impair the
right to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date);
(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such amendment or supplemental indenture, or the consent of whose Holders
is required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences with respect
to the Securities of such series provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such series
required for such actions or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which 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.
- 43 -
51
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment or supplemental
indenture, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or supplemental indenture under this Section 9.2 becomes
effective, the Company and the Guarantor (if the Securities are Guaranteed
Securities) shall mail to each Holder of the particular Securities affected
thereby a notice briefly describing the amendment.
SECTION 9.3 Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 Revocation and Effect of Consents, Waivers and Actions. Until
an amendment or waiver with respect to a series of Securities becomes effective,
a consent to it or any other action by a Holder of a Security of that series
hereunder is a continuing consent by the Holder and every subsequent Holder of
that Security or portion of that Security that evidences the same obligation as
the consenting Holder's Security, even if notation of the consent, waiver or
action is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent, waiver or action as to such Holder's Security or
portion of the Security if the Trustee receives the notice of revocation before
the Company or the Guarantor (if the Securities are Guaranteed Securities) or an
agent of the Company or the Guarantor, as the case may be, certifies to the
Trustee that the consent of the requisite aggregate Principal Amount of the
Securities of that series has been obtained. After an amendment, waiver or
action becomes effective, it shall bind every Holder of Securities of that
series.
The Company or the Guarantor (if the Securities are Guaranteed Securities)
may, but shall not be obligated to, fix a record date for the purpose of
determining the Holders entitled to consent to any amendment or waiver with
respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 Notation on or Exchange of Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
with respect to such series pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the Guarantor
(if the Securities are Guaranteed Securities) shall so determine, new Securities
of such series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such
- 44 -
52
supplemental indenture may be prepared and executed by the Company and the
Guarantor, as the case may be, and authenticated and delivered by the Trustee in
exchange for outstanding Securities of that series.
SECTION 9.6 Trustee to Sign Supplemental Indentures. The Trustee shall sign
any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby, except
to the extent otherwise set forth thereon.
ARTICLE X
SINKING FUNDS
SECTION 10.1 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 2.3(a) 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 Securities of any series is herein referred to as an "optional sinking
fund payment." If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 10.2. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of the Securities of such
series.
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities. The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), and (2) may apply as a credit Securities of a series with the same
issue date, interest rate and Stated Maturity which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case, in satisfaction of all
- 45 -
53
or any part of any mandatory sinking fund payment with respect to the Securities
of such series with the same issue date, interest rate and Stated Maturity;
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 10.3 Redemption of Securities for Sinking Fund. Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 10.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.2 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.3. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.4 and 3.6.
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 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 11.2 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 11.1, to be held at such time and at such place in the
Borough of Manhattan, the City of New York or, with the approval of the Company
or the Guarantor (if the Securities are Guaranteed Securities), at any other
place. 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 13.2, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
-46-
54
(b) In case at any time the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of at least 10% in Principal Amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 11.1, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of Securities of such series in the amount
above specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, the City of New York, or in such other place as shall be
determined and approved by the Company or the Guarantor, as the case may be, for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 Persons Entitled to Vote at Meetings. To be entitled to vote
at any meeting of Holders of Securities of any series, a person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel, any representatives of the Company and its counsel, and any
representatives of the Guarantor (if the Securities are Guaranteed Securities)
and its counsel.
SECTION 11.4 Quorum; Action. The persons entitled to vote a majority in
Principal Amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series. In the absence of
a quorum within 30 minutes of 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 determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period 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 11.2(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 9.2, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in Principal Amount of the
- 47 -
55
Outstanding Securities of that series; provided, however, that, except as
limited by the proviso to Section 9.2, 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, whether or not present
or represented at the meeting.
SECTION 11.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of 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
11.7 and the appointment of any proxy shall be proved in the manner specified in
Section 11.7. 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 11.7 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company, the Guarantor (if the Securities are Guaranteed Securities) or by
Holders of Securities as provided in Section 11.2 (b), in which case the
Company, the Guarantor (if the Securities are Guaranteed Securities) 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 vote with respect to 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.
- 48 -
56
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 11.2 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 11.6 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 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 facts setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 11.2
and, if applicable, Section 11.4. 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 Company and the Guarantor (if the Securities are
Guaranteed Securities), 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 11.7 Actions of Holders Generally. (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 an agent duly appointed in writing. 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 Company or the Guarantor (if the Securities
are Guaranteed Securities). 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 7.1) conclusive in favor of the Trustee and the Company and the
Guarantor (if the Securities are Guaranteed Securities), 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 11.6.
- 49 -
57
(b) The fact and date of the execution by any person of any such instrument
or writing, or the authority of the persons executing the same, may be proved in
any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Securities held by the
person, and the date of holding the same, shall be proved by the books of the
Registrar.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other act of the Holder of any Security in accordance with this Section shall
bind every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company or the Guarantor (if the Securities are Guaranteed
Securities) in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) If the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other act in accordance with this Section,
the Company or the Guarantor, as the case may be, may, at its option, by or
pursuant to an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, delivered to the Trustee, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or such other act, but the Company or the
Guarantor, as the case may be, 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 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 percentage of Outstanding Securities or Outstanding Securities of a
series, as the case may be, 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 or Outstanding Securities of the
series, as the case may be, shall be computed as of such record date; provided,
that no such authorization, agreement or consent by the Holders on the record
date shall be deemed effective unless such request, demand, authorization,
direction, notice, consent, waiver or other act shall become effective pursuant
to the provisions of clause (a) of this Section 11.7 not later than six months
after the record date.
- 50 -
58
ARTICLE XII
GUARANTEES
SECTION 12.1 Guarantees.
The Guarantee set forth in this Article XII shall only be in effect with
respect to Securities of a series to the extent such Guarantee is made
applicable to such series in accordance with Section 2.3. The Guarantor hereby
unconditionally guarantees to each Holder of a Guaranteed Security authenticated
and delivered by the Trustee the due and punctual payment of the principal of,
any premium and interest on such Guaranteed Security and the due and punctual
payment of the sinking fund payments (if any) provided for pursuant to the terms
of such Guaranteed Security, when and as the same shall become due and payable,
whether at maturity, by acceleration, redemption, repayment or other wise, in
accordance with the terms of such Security and of this Indenture. In case of the
failure of the Company punctually to pay any such principal, premium, interest
or sinking fund payment, the Guarantor hereby agrees to cause any such payment
to be made punctually when and as the same shall become due and payable, whether
at maturity, upon acceleration, redemption, repayment or otherwise, and as if
such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Guaranteed Security or this Indenture,
any failure to enforce the provisions of any Guaranteed Security or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Company or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium or interest on, and sinking
fund payment required with respect to, the Guaranteed Securities and the
complete performance of all other obligations contained in the Guaranteed
Securities.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time payment on any Guaranteed Security, in whole or in part,
is restricted or must otherwise be restored to the Company or the Guarantor upon
the bankruptcy, liquidation or reorganization of the Company or otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Company in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee; provided,
however, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of, any premium and interest on, and sinking fund payments required
with respect to, all Guaranteed Securities shall have been paid in full.
- 51 -
59
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 Notices. Any notice or communication shall be in writing and
delivered in person or mailed by first-class mail, postage prepaid, addressed as
follows:
if to the Company:
AIMCO Properties, L.P.
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: [ ]
if to the Guarantor:
Apartment Investment and Management Company
0000 Xxxxx Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: [ ]
if to the Trustee:
United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Department
The Company, the Guarantor (if the Securities are Guaranteed Securities) or
the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
- 52 -
60
Any notice or communication given to a Holder of Securities shall be mailed
to such Securityholder at the Securityholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
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.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company or the Guarantor (if the Securities are Guaranteed
Securities) mails a notice or communication to the Holders of Securities of a
particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give notice to Holders of
Securities by mail, then such notification as shall be made with the acceptance
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided herein.
SECTION 13.3 Communication by Holders with Other Holders. Securityholders
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company, the
Guarantor (if the Securities are Guaranteed Securities) and the Trustee, the
Registrar or the Paying Agent with respect to a particular series of Securities,
and anyone else, shall have the protection of TIA Section 312(c).
SECTION 13.4 Certificate and Opinion as to Conditions Precedent. Upon any
request or application by the Company or the Guarantor (if the Securities are
Guaranteed Securities) to the Trustee to take any action under this Indenture,
the Company or the Guarantor, as the case may be, shall furnish to the Trustee:
(1) an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
- 53 -
61
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.5 Statements Required in Certificate or Opinion. Each Officers'
Certificate, Guarantor's Officers' Certificate (if the Securities are Guaranteed
Securities) or Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate,
Guarantor's Officers' Certificate (if the Securities are Guaranteed
Securities) or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Guarantor's Officers' Certificate (if the
Securities are Guaranteed Securities) or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.6 Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 13.7 Rules by Trustee, Paying Agent and Registrar. With respect to
the Securities of a particular series, the Trustee with respect to such series
of Securities may make reasonable rules for action by or a meeting of Holders of
such series of Securities. With respect to the Securities of a particular
series, the Registrar and the Paying Agent with respect to such series of
Securities may make reasonable rules for their functions.
SECTION 13.8 Legal Holidays. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series
- 54 -
62
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or Principal need not be made at such Place of
Payment, or such other action need not be taken, on such date, but the action
shall be taken on the next succeeding day that is not a Legal Holiday at such
Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity or such other date
and to the extent applicable no Original Issue Discount or interest, if any,
shall accrue for the intervening period.
SECTION 13.9 Governing Law. THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 No Recourse Against Others. A director, officer, employee or
stockholder, as such, of the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall not have any liability for any obligations of the
Company or the Guarantor, as the case may be, under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder of such
Security shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 13.11 Successors. All agreements of the Company or the Guarantor
(if the Securities are Guaranteed Securities) in this Indenture and the
Securities shall bind its respective successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 13.12 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 13.13 Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any
benefits or any legal or equitable right, remedy or claim under this Indenture.
SECTION 13.14 Multiple Originals. The parties may sign any number of copies
of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
- 55 -
63
AIMCO PROPERTIES, L.P.
AIMCO-GP, INC.
its General Partner
By:
-------------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY, as Guarantor, if applicable
By:
-------------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
- 00 -
00
XXXXXX XXXXXX TRUST COMPANY OF NEW
YORK,
as Trustee
By:
-------------------------------
Name:
Title:
Attest:
-----------------------------
Name:
Title:
- 57 -
