Exhibit 4.1
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PRIME GROUP REALTY TRUST
TO
BANKERS TRUST COMPANY,
as Indenture Trustee
----------
FORM
OF
INDENTURE
Dated as of ____________, ____
Providing for Issuance of Senior
Debt Securities in Series
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PRIME GROUP REALTY TRUST
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . 608, 610
(S) 311(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .613
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .613
(S) 312(a). . . . . . . . . . . . . . . . . . . . . . . . . . .701, 702(a)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702(c)
(S) 313(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703(b)
(S) 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1008
(b) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . .. . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. 102
(S) 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 601
(b) . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. 602
(c) . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 601
(e) . . . . . . .. . . . . . . . . . . . . . . . . . . . . . .. 514
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(S) 316(a) (last sentence) . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . .502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2). . . . . . . . . . . . . . . . . . . . . . . .Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .104(c)
(S) 317(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1003
(S) 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions of General Application . . . . . . . . . 1
Section 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 1
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . . 8
Section 103. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. . . . . 9
Section 104. ACTS OF HOLDERS; RECORD DATES . . . . . . . . . . . . . . 9
Section 105. NOTICES, ETC., TO INDENTURE TRUSTEE AND COMPANY . . . . .10
Section 106. NOTICE TO HOLDERS; WAIVER . . . . . . . . . . . . . . . .11
Section 107. CONFLICT WITH TRUST INDENTURE ACT . . . . . . . . . . . .11
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . .11
Section 109. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . .12
Section 110. SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . .12
Section 111. BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . .12
Section 112. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . .12
Section 113. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . .12
ARTICLE TWO
Security Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Section 201. FORMS GENERALLY . . . . . . . . . . . . . . . . . . . . .13
Section 202. FORM OF FACE OF SECURITY. . . . . . . . . . . . . . . . .13
Section 203. FORM OF REVERSE OF SECURITY . . . . . . . . . . . . . . .15
Section 205. FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. . . . . . . . . . . . . . . . . . . . . .24
ARTICLE THREE
The Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . . . . . . . . .24
Section 302. DENOMINATIONS . . . . . . . . . . . . . . . . . . . . . .27
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . .27
Section 304. TEMPORARY SECURITIES. . . . . . . . . . . . . . . . . . .29
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE;
RESTRICTIONS ON TRANSFER. . . . . . . . . . . . . . . . .30
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. . . . .36
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . .37
Section 308. PERSONS DEEMED OWNERS.. . . . . . . . . . . . . . . . . .39
Section 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . .39
Section 310. COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . .39
Section 311. CUSIP NUMBERS . . . . . . . . . . . . . . . . . . . . . .40
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ARTICLE FOUR
Satisfaction and Discharge. . . . . . . . . . . . . . . . . . . . . . . .40
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . .40
Section 402. APPLICATION OF TRUST MONEY. . . . . . . . . . . . . . . .41
ARTICLE FIVE
Events of Default and Remedies. . . . . . . . . . . . . . . . . . . . . .41
Section 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . .41
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . .43
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY INDENTURE TRUSTEE. . . . . . . . . . . . . . . . . . .44
Section 504. INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . .44
Section 505. INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES. . . . . . . . . . . . . . . . .45
Section 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . .45
Section 507. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . .46
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST. . . . . . . . . . . . . . . . . . .46
Section 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . .46
Section 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . .47
Section 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . .47
Section 512. CONTROL BY HOLDERS. . . . . . . . . . . . . . . . . . . .47
Section 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . .48
Section 514. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . .48
ARTICLE SIX
The Indenture Trustee . . . . . . . . . . . . . . . . . . . . . . . . . .48
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES . . . . . . . . . . .48
Section 602. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . .49
Section 603. CERTAIN RIGHTS OF INDENTURE TRUSTEE . . . . . . . . . . .49
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. . . . . . . . . . . . . . . . . . . . . . . .51
Section 605. MAY HOLD SECURITIES AND SERVE AS INDENTURE TRUSTEE
UNDER OTHER INDENTURES. . . . . . . . . . . . . . . . . .51
Section 606. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . .51
Section 607. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . .51
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS . . . . . . . . .52
Section 609. CORPORATE INDENTURE TRUSTEE REQUIRED; ELIGIBILITY . . . .52
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . . .53
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . .54
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Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. . . . . . . . . . . . . . . . . . . . . . . . .56
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY . . . .56
Section 614. INVESTMENT OF CERTAIN PAYMENTS HELD BY THE INDENTURE
TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . .56
Section 615. RIGHTS AND PROTECTIONS OF INDENTURE TRUSTEE THAT
ALSO ACTS AS PAYING AGENT OR SECURITY REGISTRAR . . . . .57
Section 616. APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . . . . .57
ARTICLE SEVEN
Holders' Lists and Reports by Indenture Trustee and Company . . . . . . .59
Section 701. COMPANY TO FURNISH INDENTURE TRUSTEE NAMES AND
ADDRESSES OF HOLDERS. . . . . . . . . . . . . . . . . . .59
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS . . . . . . . . . . . . . . . . . . . . . . . . .59
Section 703. REPORTS BY INDENTURE TRUSTEE. . . . . . . . . . . . . . .59
Section 704. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . . .60
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease. . . . . . . . . . .60
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS. . .60
Section 802. SUCCESSOR SUBSTITUTED . . . . . . . . . . . . . . . . . .61
Section 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. . . . . . .61
ARTICLE NINE
Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . .61
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . .61
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.. . . . .63
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . .64
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . .64
Section 905. CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . . .64
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. . . .64
ARTICLE TEN
Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .65
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. . . . . . . .65
Section 1002. MAINTENANCE OF OFFICE OR AGENCY . . . . . . . . . . . . .65
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST . . . .65
Section 1004. PAYMENT OF TAXES AND OTHER CLAIMS . . . . . . . . . . . .67
Section 1005. MAINTENANCE OF PROPERTIES . . . . . . . . . . . . . . . .67
Section 1006. TRUST EXISTENCE . . . . . . . . . . . . . . . . . . . . .67
Section 1007. LIMITATION UPON LIENS . . . . . . . . . . . . . . . . . .68
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Section 1008. LIMITATION UPON SALES AND LEASEBACKS. . . . . . . . . . .70
Section 1009. WAIVER OF CERTAIN COVENANTS . . . . . . . . . . . . . . .71
Section 1010. COMPLIANCE CERTIFICATE. . . . . . . . . . . . . . . . . .71
ARTICLE ELEVEN
Redemption of Securities. . . . . . . . . . . . . . . . . . . . . . . . .72
Section 1101. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . .72
Section 1102. ELECTION TO REDEEM: NOTICE TO INDENTURE TRUSTEE . . . . .72
Section 1103. SELECTION BY INDENTURE TRUSTEE OF SECURITIES TO BE
REDEEMED. . . . . . . . . . . . . . . . . . . . . . . . .72
Section 1104. NOTICE OF REDEMPTION. . . . . . . . . . . . . . . . . . .73
Section 1105. DEPOSIT OF REDEMPTION PRICE . . . . . . . . . . . . . . .74
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE . . . . . . . . . .74
Section 1107. SECURITIES REDEEMED IN PART . . . . . . . . . . . . . . .75
ARTICLE TWELVE
Sinking Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75
Section 1201. APPLICABILITY OF ARTICLE. . . . . . . . . . . . . . . . .75
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. . . . . . . . . . . . . . . . . . . . . . . .75
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND . . . . . . . .76
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance. . . . . . . . . . . . . . . . . . . .76
Section 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE . . . . . . . . . . . .76
Section 1302. DEFEASANCE AND DISCHARGE. . . . . . . . . . . . . . . . .76
Section 1303. COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . .77
Section 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE . . . . .77
Section 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. . . . .79
Section 1306. REINSTATEMENT . . . . . . . . . . . . . . . . . . . . . .80
Section 1307. QUALIFYING INDENTURE TRUSTEE. . . . . . . . . . . . . . .80
ARTICLE FOURTEEN
Immunity of Organizers, Promoters, Shareholders, Officers, Trustees
and Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .81
Section 1401. EXEMPTION FROM INDIVIDUAL LIABILITY . . . . . . . . . . .81
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NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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INDENTURE, dated as of ___________, _________________ , between
Prime Group Realty Trust, a real estate investment trust duly organized and
existing under the laws of the State of Maryland (herein called the
"COMPANY"), having its principal office at 00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, and Bankers Trust Company, a New York banking
corporation, as Indenture Trustee (herein called the "INDENTURE 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 senior
unsubordinated unsecured debentures, notes or other evidences of indebtedness
(herein called the "SECURITIES"), to be issued in one or more series as
provided in this Indenture.
The Company has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery
and administration of the Securities.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or each series
thereof, as follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation in the United States of
America; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT", when used with respect to any Holder, has the meaning
specified in SECTION 104(a).
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities or other ownership
interests, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"ATTRIBUTABLE DEBT", in respect of any Sale and Leaseback
Transaction, means, as of the time of determination, the total obligation
(discounted to present value at the rate per annum equal to the discount rate
which would be applicable to a capital lease obligation with like term in
accordance with generally accepted accounting principles) of the lessee for
rental payments (other than amounts required to be paid on account of
property taxes, maintenance, repairs, insurance, water rates and other items
which do not constitute payments for property rights) during the remaining
portion of the initial term of the lease included in such Sale and Leaseback
Transaction.
"AUTHENTICATING AGENT" means any Person authorized by the Indenture
Trustee pursuant to SECTION 615 to act on behalf of the Indenture Trustee to
authenticate Securities of one or more series.
"BOARD OF TRUSTEES" means either the board of trustees of the
Company or any duly authorized committee of that board.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Trustees and to be in full force and effect on the date of
such certification, and delivered to the Indenture Trustee.
"BOOK-ENTRY SECURITY" means a Security in the form prescribed in
SECTION 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"BUSINESS DAY", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking
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institutions in that Place of Payment or the city in which the principal
corporate trust office of the Trustee is located are authorized or obligated
by law or executive order to close.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, its Chief Financial Officer, or a
Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Indenture Trustee.
"CONSOLIDATED NET ASSETS" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after
deducting therefrom all current liabilities (excluding any indebtedness for
money borrowed having a maturity of less than 12 months from the date of the
most recent consolidated balance sheet of the Company but which by its terms
is renewable or extendable beyond 12 months from such date at the option of
the borrower) all as set forth on the most recent consolidated balance sheet
of the Company and computed in accordance with generally accepted accounting
principles.
"CORPORATE TRUST OFFICE" means the principal office of the
Indenture Trustee at which at any particular time its corporate trust
business shall be principally administered, which office at the date of
original execution of this Indenture is located at Four Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust and Agency Group or at any
other time at such other address as the Indenture Trustee may designate from
time to time by notice to the Holders, except that, with respect to
presentation of the Securities for payment or registration of transfers or
exchanges and the location of the register, such term means the office or
agency of the Indenture Trustee at which at any particular time its corporate
agency business shall be conducted.
"DEBT" has the meaning specified in SECTION 1007.
"DEFAULTED INTEREST" has the meaning specified in SECTION 307.
"DEFINITIVE SECURITY" means Securities that are in the form of the
Securities set forth in ARTICLE TWO, that do not include the information
called for in SECTION 204.
"DEPOSITARY" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as
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Depositary for such series by the Company pursuant to SECTION 301(17), which
Person shall be a clearing agency registered under the Exchange Act; and if
at any time there is more than one such Person, "DEPOSITARY" as used with
respect to the Securities of any series shall mean the Depositary with
respect to the Securities of such series.
"EVENT OF DEFAULT" has the meaning specified in SECTION 501.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXCHANGE OFFER" means any registered exchange offer made by the
Company soley to facilitate the exchange of an Outstanding series of
Securities for the related Exchange Securities.
"EXCHANGE SECURITIES" means any Securities issued by the Company
solely to facilitate a registered exchange of such Securities for any series
of Securities with substantially indentical terms previously issued in a
private placement of such Outstanding Securities.
"FUNDED DEBT" means all Debt having a maturity of more than 12
months from the date as of which the determination is made or having a
maturity of 12 months or less but by its terms being renewable or extendable
beyond 12 months from such date at the option of the borrower, but excluding
any such Debt owed to the Company or a Subsidiary.
"HOLDER" means a Person in whose name a Security is registered in
the Security Register.
"INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument, and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term "Indenture" shall also include the forms
and terms of particular series of Securities established as contemplated by
SECTION 301.
"INDENTURE TRUSTEE" means the Person named as the "Indenture
Trustee" in the first paragraph of this instrument until a successor
Indenture Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Indenture Trustee" shall mean
or include each Person who is then a Indenture Trustee hereunder, and if at
any time there is more than one such Person, "Indenture Trustee" as used with
respect to the Securities of any series shall mean the Indenture Trustee with
respect to Securities of that series.
"INDEXED SECURITY" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
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"INTEREST", when used with respect to an Original Issue 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
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman
of the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, and delivered to the
Indenture Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, in form
and substance reasonably acceptable to the Indenture Trustee, who may be
counsel for the Company, and who shall be acceptable to the Indenture
Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to SECTION 502.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Indenture Trustee or
delivered to the Indenture Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED, that if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to SECTION 1104 or provision therefor satisfactory to the Indenture
Trustee has been made;
(iii) Securities, except to the extent provided in SECTIONS 1302
and 1303, with respect to which the Company has effected defeasance or
covenant defeasance as provided in ARTICLE THIRTEEN; and
(iv) Securities which have been paid pursuant to SECTION 306 or
in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture,
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other than any such Securities in respect of which there shall have been
presented to the Indenture Trustee proof satisfactory to it that such
Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations
required by Section 313 of the Trust Indenture Act, (i) the principal amount
of an Original Issue Discount 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 502, (ii) the principal amount of a Security denominated
in one or more foreign currencies or currency units shall be the U.S. dollar
equivalent, determined in the manner provided as contemplated by SECTION 301
on the date of original issuance of such Security, of the principal amount
(or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Security pursuant to SECTION 301, and (iv) except for the purpose of making
the calculations required by Section 313 of the Trust Indenture Act,
Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent, waiver or other action,
only Securities which a Responsible Officer of the Indenture Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Indenture Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay
the principal of or any premium or interest on any Securities on behalf of
the Company.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, 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 the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by SECTIONS 301 and 1002.
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"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under SECTION 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for
that purpose as contemplated by SECTION 301.
"RESPONSIBLE OFFICER", shall mean when used with respect to the
Indenture Trustee any officer within the Corporate Trust Office including any
Vice President, managing director, assistant vice president, secretary,
assistant secretary, treasurer or assistant treasurer or any other officer of
the Indenture Trustee customarily performing functions similar to those
performed by any of the above designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because
of such officer's knowledge and familiarity with the particular subject.
"SALE AND LEASEBACK TRANSACTION" means any arrangement with any
bank, insurance company or other lender or investor (other than the Company
or another Subsidiary) providing for the leasing by the Company or any
Subsidiary of any property (except a lease for a temporary period not to
exceed three years by the end of which it is intended that the use of such
property by the lessee will be discontinued), which was or is owned or leased
by the Company or a Subsidiary and which has been or is to be sold or
transferred, more than 120 days after the acquisition or the completion of
construction and commencement of full operation thereof, by the Company or
such Subsidiary to such lender or investor or to any Person to whom funds
have been or are to be advanced by such lender or investor on the security of
such property.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in SECTION 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
means a date fixed by the Indenture Trustee pursuant to SECTION 307.
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"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 the principal of such
Security or such installment of principal or interest is due and payable.
"SUBSIDIARY" means any corporation, partnership or limited
liability company of which at least a majority of the outstanding voting
stock, partnership interest or limited liability company interest, as the
case may be, is at the time directly or indirectly owned by the Company, or
by one or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For purposes of this defintion, "voting stock" means stock
having by the terms thereof ordinary voting power for the election of
directors of such corporation (irrespective of whether or not at the time
stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency).
"TRANSFER RESTRICTED SECURITIES" means Securities that have been or
are required to bear the legend set forth in SECTION 305(H) hereof.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; PROVIDED,
HOWEVER, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. GOVERNMENT OBLIGATIONS" has the meaning specified in SECTION
1304(1).
"VICE PRESIDENT", when used with respect to the Company or the
Indenture Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president",
including, without limitation, "executive vice president" and "senior vice
president."
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
Upon any application or request by the Company to the Indenture
Trustee to take any action under any provision of this Indenture (except for
the initial issuances of Securities hereunder), the Company shall furnish to
the Indenture Trustee such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in
the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
representations by counsel or an opinion of counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the
certificate, representations or opinion with respect to the matters upon
which such officer's certificate or opinion is based are erroneous. Any such
certificate or representations of counsel or opinion of counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of,
or representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Indenture Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes
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referred to as the "ACT" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to SECTION 603) conclusive in favor of the Indenture
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Indenture Trustee
deems sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any series entitled to
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or permitted to
be given or taken by Holders of Securities of such series. If not set by the
Company prior to the first solicitation of a Holder of Securities of such
series made by any Person in respect of any such action, or, in the case of
any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to SECTION 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only
the Holders of Securities of such series on such date (or their duly
designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Indenture Trustee or the Company in reliance thereon, whether or not notation
of such action is made upon such Security.
Section 105. NOTICES, ETC., TO INDENTURE TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Indenture Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Indenture Trustee at its Corporate Trust Office,
Attention: Corporate Trust and Agency Services.
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(2) the Company by the Indenture Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified in
the first paragraph of this instrument or at any other address previously
furnished in writing to the Indenture Trustee by the Company, Attention:
President, with a copy to the Company at the address of its principal office
specified in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company, Attention:
General Counsel.
Section 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at such Holder's address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not
such Holder actually receives such notice. 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 Indenture Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the
Indenture Trustee shall constitute a sufficient notification for every
purpose hereunder.
Section 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision of this Indenture limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required under such Act
to be a part of and govern this Indenture, the provision of the Trust
Indenture Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or
excluded, the latter provision shall be deemed to apply to this Indenture as
so modified or to be excluded, as the case may be.
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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Section 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Securities (other than a provision of the Securities of
any series which specifically states that such provision shall apply in lieu
of this Section)) payment of interest or principal (and premium, if any) need
not be made at such Place of Payment on such day, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, the Redemption Date, or at
the Stated Maturity or Maturity; PROVIDED, that no interest shall accrue for
the intervening period.
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ARTICLE TWO
Security Forms
Section 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form
set forth in this Article, or in such other form as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or Depositary
therefor or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
If the form of Securities of any series is established by, or by action
taken pursuant to, a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Indenture Trustee at or prior to the
delivery of the Company Order contemplated by SECTION 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange on which the Securities may
be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 202. FORM OF FACE OF SECURITY.
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS.]
[INSERT ANY LEGEND REQUIRED BY THE DEPOSITARY, IF APPLICABLE.]
PRIME GROUP REALTY TRUST
[INSERT DESIGNATION OF THE SERIES OF SECURITY.]
No. ___________________ $ ___________________
CUSIP No. ___________________
Prime Group Realty Trust, a real estate investment trust duly
[organized and existing] under the laws of Maryland (herein called the
"COMPANY", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
___________________, or registered assigns, the principal sum
[if BOOK-ENTRY SECURITY,
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INSERT -- set forth above or such other principal sum on the Schedule
attached hereto (which shall not exceed $_____________] [of _____________
Dollars] on _____________ [IF THE SECURITY IS TO BEAR INTEREST PRIOR TO
MATURITY, INSERT --, and to pay interest thereon from _____________ or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on _____________ and _____________ in each year,
commencing _____________, at the rate of ___% per annum, until the principal
hereof is paid or made available for payment [IF APPLICABLE, insert -- and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of ___% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the _____________ or _____________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Indenture Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ___% per annum (to the extent that the parment of
such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. [Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ___% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]]
Payment of the principal of (and premium, if any on) and [IF
APPLICABLE, INSERT -- and any such interest on] this Security will be made at
the office or agency of the Company maintained for that purpose
in _____________, in such coin or currency of [the United States of America]
as at the time of payment is legal tender for payment of public and private
debts [IF APPLICABLE, INSERT -- ; PROVIDED, HOWEVER, that at the option of
the Company payment of interest may be made by check mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer to an account maintained by the Person entitled
thereto as specified in the Security Register, PROVIDED that such Person shall
have given the Indenture Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date.]
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[IF THE SECURITY IS PAYABLE IN A FOREIGN CURRENCY, INSERT -- THE
APPROPRIATE PROVISION.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Indenture Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
PRIME GROUP REALTY TRUST
By _______________________________
Title:
Attest:
_______________________________
Title:
Section 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of
the Company (herein called the "SECURITIES"), issued and to be issued in one
or more series under an Indenture, dated as of _____________, _____________
(herein, together with all indentures supplemental thereto, called the
"INDENTURE"), between the Company and _____________, as Indenture Trustee
(herein called the "INDENTURE TRUSTEE", which term includes any successor
indenture trustee under the Indenture). [This Security is one of a series
[, limited in aggregate principal amount to $..........] designated as
[__________] (herein called "[_________]), [created by a supplemental
indenture, dated as of ____________ (the "Supplemental Indenture"), duly
executed and delivered by the Company to such Indenture Trustee]. Reference
is hereby made to the Indenture for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Indenture Trustee and the Holders of the Securities and of the terms upon which
the Securities are, and are to be, authenticated and delivered.
[IF APPLICABLE, INSERT -- The Securities are redeemable, as a
whole or in part, at the option of the Company, at any time or from time to
time, on at least 30 days, but not more than 60 days, prior notice mailed to the
registered address of each holder of Securities. The redemption
-15-
prices will be equal to the greater of (1) 100% of the principal amount of
the Securities to be redeemed or (2) the sum of the present values of the
Remaining Scheduled Payments (as defined below) discounted, on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months), at a rate
equal to the sum of the applicable Treasury Rate (as defined below) plus __
basis points, plus accrued interest to the date of redemption.
"TREASURY RATE" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity (computed
as of the second business day immediately preceding such redemption date) of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
"COMPARABLE TREASURY ISSUE" means the United States Treasury
security selected by an Independent Investment Banker as having a maturity
comparable to the remaining term of such series of Securities to be redeemed
that would be utilized, at the time of selection and in accordance with
customary financial practice, in pricing new issues of corporate debt
securities of comparable maturity to the remaining term of such series of
Securities. "INDEPENDENT INVESTMENT BANKER" means one of the Reference
Treasury Dealers appointed by the Company.
"COMPARABLE TREASURY PRICE" means, with respect to any redemption
date, the average of the Reference Treasury Dealer Quotations for such
redemption date. "REFERENCE TREASURY DEALER QUOTATIONS" means, with respect
to each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at
3:30 p.m., New York City time, on the third business day preceding such
redemption date.
"REFERENCE TREASURY DEALER" means each of ___________ and
__________ and their respective successors. If any of the foregoing shall
cease to be a primary U.S. Government securities dealer (a "PRIMARY TREASURY
DEALER"), the Company shall substitute another nationally recognized
investment banking firm that is a Primary Treasury Dealer.
"REMAINING SCHEDULED PAYMENTS" means, with respect to Securities to
be redeemed, the remaining scheduled payments of principal of and interest on
such Securities that would be due after the related redemption date but for
such redemption. If such redemption date is not an interest payment date with
respect to such Securities, the amount of the next succeeding scheduled
interest payment on such Securities will be reduced by the amount of interest
accrued on such Securities to such redemption date.
On and after the redemption date, interest will cease to accrue on
the Securities or any portion of the Securities called for redemption (unless
the Company defaults in the payment of the redemption price and accrued
interest). On or before the redemption date, the Company will deposit with a
paying agent (or the Indenture Trustee) money sufficient to pay the
redemption price of and
-16-
accrued interest on the Securities to be redeemed on such date. If less than
all of the Securities of any series are to be redeemed, the Securities to be
redeemed shall be selected by the Indenture Trustee by such method as the
Indenture Trustee shall deem fair and appropriate.]
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, [IF APPLICABLE, INSERT --(1) on ___________ in any year commencing
with the year __ and ending with the year __ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after ___________, ____], as a whole or in
part, at the election of the Company, [at Redemption Prices determined as
follows:] [at the following Redemption Prices (expressed as percentages of the
principal amount)]: If redeemed [on or before ___________, ____%, and if
redeemed] during the 12-month period beginning ___________ of the years
indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ___% of the principal amount,]
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on
the relevant Regular Record Dates or Special Record Dates referred to on the
face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption upon not less than 30 nor more than 60 days' notice by
mail, such 30 or 60 days, as the case may be, to be counted from the date notice
is mailed, (1) on ___________ in any year commencing with the year ___________
and ending with the year ___________ through operation of the sinking fund for
this series at the Redemption Prices for redemption through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below, and (2) at any time [on or after ___________ ], as a whole or
in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning ___________ of the years indicated,
-17-
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
and thereafter at a Redemption Price equal to ___ % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
__________, redeem any Securities of this series as contemplated by
[Clause (2) of] the preceding paragraph as a part of, or in anticipation
of, any refunding operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company (calculated in
accordance with generally accepted financial practice) of less than ___ %
per annum.]
[The sinking fund for this series provides for the redemption on
__________ in each year beginning with the year ___ and ending with the year
___ of [not less than $ __________ ("mandatory sinking fund") and not more than]
$ __________ aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[IF THE SECURITIES DO NOT HAVE A SINKING FUND, THEN INSERT --
the Securities do not have the benefit of any sinking fund obligations.]
[IF THE SECURITY IS SUBJECT TO REDEMPTION, INSERT -- In the event
of redemption of this Security in part only, a new Security or Securities of
this series and of like tenor for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.]
[IF THE SECURITY IS NOT SUBJECT TO REDEMPTION, INSERT -- The
Securities of this series are not redeemable prior to Stated Maturity.]
[IF APPLICABLE, INSERT -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [and/or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
-18-
[IF APPLICABLE, INSERT -- The Securities of this series are not
subject to [Section 1302 of the Indenture concerning the defeasance of the
indebtedness represented by this Security] [and/or] [Section 1303 of the
Indenture concerning covenant defeasance of this Security.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY,
INSERT -- If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT
-- If an Event of Default with respect to Securities of this series shall occur
and be continuing, an amount of principal of the Securities of this series may
be declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[IF THE SECURITY IS AN INDEXED SECURITY, INSERT -- the appropriate
provision.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities under the
Indenture at any time by the Company and the Indenture Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be adversely affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security and of any Security
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon
this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
-19-
executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ ________
[and any integral multiple thereof]. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this
series and of like tenor of a different authorized denomination, as requested
by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
shareholder, officer, trustee or employee, as such, past, present or future,
of the Company or any successor entity, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issue hereof, expressly waived and
released.
Prior to due presentment of this Security for registration of
transfer, the Company, the Indenture Trustee and any agent of the Company or
the Indenture Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes (subject to Section 307 of
the Indenture), whether or not this Security be overdue, and neither the
Company, the Indenture Trustee nor any such agent shall be affected by notice
to the contrary.
[IF APPLICABLE, INSERT -- Interest on this Security shall be
computed on the basis of a 360-day year of twelve 30-day months.]
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflicts of laws principles thereof.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
-20-
TEN COM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties ______________________ Custodian
(Cust)
______________________ under
JT TEN - as joint tenants with right (Minor)
of survivorship and not as
tenants in common Uniform Gifts to
Minors Act____________________
(State)
Additional abbreviations may also be used
though not in the above list.
ASSIGNMENT FORM
(I) or (we) assign and transfer this Security to:
--------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _________________________________ agent to transfer this
Security on the Register. The agent may substitute another to act for him.
Date: ___________________
Signature:_______________________________
(exactly as your name appears on
the face of this Security)
Name:____________________________________
Title:___________________________________
Address:_________________________________
Phone No.:_______________________________
-21-
Date:____________________________________
Signature Guaranteed:
By:____________________________________
This signature shall be guaranteed by an eligible guarantor institution (a bank
or trust company having an office or correspondent in the United States or a
broker or dealer which is a member of a registered securities exchange or the
National Association of Securities Dealers, Inc.) with membership in an approved
signature guaranty medallion program pursuant to SEC Rule 17 Ad-15.
-22-
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of Securities
held in *________ book-entry or *_______ definitive form by ________________
(the "Transferor").
The Transferor*:
/ / has requested the Trustee by written order to deliver in exchange
for its beneficial interest in the Book-Entry Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial interest
in such Book-Entry Security (or the portion thereof indicated above); or
/ / has requested the Trustee by written order to exchange or
register the transfer of a Security or Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify and agree that Transferor is familiar with
the Indenture relating to the above captioned Securities and as provided in
Section 305 of such Indenture, the transfer of this Security does not require
registration under the Securities Act of 1933, as amended (the "Securities Act")
because:*
/ / Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 305(b)(ii)(A) or Section
305(e)(i)(A) of the Indenture).
/ / Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act in reliance on Rule
144A (in satisfaction of Section 305(b)(ii)(B) or Section 305(e)(i)(B) of the
Indenture) or pursuant to an exemption from registration in accordance with Rule
904 under the Securities Act (in satisfaction of Section 305(b)(ii)(B) or
Section 305(e)(i)(B) of the Indenture.)
/ / Such Security is being transferred in accordance with Rule 144
under the Securities Act, or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 305(b)(ii)(B) or Section
305(e)(i)(B) of the Indenture).
/ / Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements of the
Securities Act, other than Rule 144A, 144 or Rule 904 under the Securities Act,
and any applicable state securities laws. An Opinion of Counsel to the effect
that such transfer does not require registration under the Securities Act
accompanies this Certificate (in satisfaction of Section 305(b)(ii)(C) or
Section 305(e)(i)(C) of the Indenture).
---------------------------
[INSERT NAME OF TRANSFEROR]
-23-
Dated:_______________________ By:___________________
*Check applicable box.
Section 204. ADDITIONAL PROVISIONS REQUIRED IN BOOK-ENTRY SECURITY.
Any Book-Entry Security issued hereunder shall, in addition to
the provisions contained in SECTIONS 202 and 203 and in addition to any legend
required by the Depositary, bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
Section 205. FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Indenture Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:_______________
Bankers Trust Company,
As Indenture Trustee
By___________________________
[Authorized Signatory]
ARTICLE THREE
The Securities
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
-24-
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more
series. There shall be established in or pursuant to a Board Resolution and,
subject to SECTION 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to SECTIONS 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to SECTION 303, are deemed never to have been
authenticated and delivered hereunder);
(3) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series shall be
issuable;
(4) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest;
(5) the date or dates on which the principal of and premium,
if any, on 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, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the method
by which such date or dates shall be determined, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(7) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and the
duration of such extensions;
(8) if other than the Corporate Trust Office of the Indenture
Trustee, the place or places where the principal of and any premium and interest
on Securities of the series shall be payable;
(9) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any Securities of
the series shall be payable if other
-25-
than the currency of the United States of America and the manner of determining
the equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in SECTION 101;
(10) the period or periods within which, the price or prices at
which, the currency or currencies (including currency units) in which and the
other terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(11) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company or a
Holder thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency, currencies
or currency units in which payment of the principal of and any premium and
interest on Securities of such series as to which such election is made shall be
payable, and the periods within which and the other terms and conditions upon
which such election is to be made;
(12) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to SECTION 502 or
the method by which such portion shall be determined;
(13) 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 and the period or periods (or
the methods of determination of such a period or periods) within which, the
price or prices at which and the other terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in part,
pursuant to such obligation;
(14) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with reference to
an index, formula or other method, the index, formula or other method by which
such amounts shall be determined;
(15) if the amount Outstanding of an Indexed Security for
purposes of the definition of "Outstanding" is to be other than the principal
face amount at original issuance, the method of determination of such amount;
(16) if either or both of SECTION 1302 or 1303 does not apply
to the Securities of any series;
(17) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry Securities and, in such
case, the Depositary with respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry Security may be registered for
transfer or exchange, or authenticated and delivered, in the name of a Person
other than such Depositary or its nominee, if other than as set forth in SECTION
305;
-26-
(18) any additional, modified or different covenants or Events
of Default applicable to one or more particular series of Securities; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
SECTION 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to SECTION 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Indenture Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
Section 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as contemplated
by SECTION 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Indenture Trustee for authentication, together
with a Company Order for the authentication and delivery of such Securities, and
the Indenture Trustee in accordance with the Company Order shall authenticate
and deliver or make available for delivery such Securities; PROVIDED, HOWEVER,
that in the case of Securities of a series that are not to be originally issued
at one time, the Indenture Trustee
-27-
shall authenticate and deliver or make available for delivery such Securities
from time to time in accordance with such other procedures (including, without
limitation, the receipt by the Indenture Trustee of oral or electronic
instructions from the Company or its duly authorized agents, promptly confirmed
in writing) acceptable to the Indenture Trustee as may be specified by or
pursuant to a Company Order delivered to the Indenture Trustee prior to the time
of the first authentication of Securities of such series. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Indenture Trustee shall be
entitled to receive, and (subject to SECTION 601) shall be fully protected in
relying upon:
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities have been
established in conformity with the provisions of this Indenture;
(b) that the terms of such Securities have been, or in the
case of Securities of a series that are not to be originally issued at one time,
will be, established in conformity with the provisions of this Indenture,
subject, in the case of Securities of a series that are not to be originally
issued at one time, to any conditions specified in such Opinion of Counsel;
(c) that such Securities, when authenticated and delivered by
the Indenture Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; PROVIDED, that such Opinion
of Counsel need express no opinion as to whether a court in the United States
would render a money judgment in currency other than that of the United States;
and
(ii) an Officer's Certificate stating that all conditions precedent
provided for in this Indenture relating to the execution, authentication and
delivery of the Securities have been complied with.
If such form or forms or terms have been so established, the Indenture Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Indenture Trustee's own
rights, duties or immunities under the Securities and this Indenture or
otherwise in a manner which the Indenture Trustee determines would expose it to
personal liability.
Notwithstanding the provisions of SECTION 301 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to SECTION 301 or the Company Order and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents, with appropriate modifications
-28-
to cover such future issuances, are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
If the Company shall establish pursuant to SECTION 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Book-Entry Securities, then the Company shall execute and the Indenture
Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver or make available for delivery
one or more Securities in such form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount of the
Outstanding Securities of such series to be represented by such Book-Entry
Security or Securities, (ii) shall be registered in the name of the Depositary
for such Book-Entry Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Indenture Trustee to such Depositary or pursuant
to such Depositary's instruction and (iv) shall bear the legend set forth in
SECTION 204.
Unless otherwise established pursuant to SECTION 301, each
Depositary designated pursuant to SECTION 301 for a Book-Entry Security must, at
the time of its designation and at all times while it serves as Depositary, be
a clearing agency registered under the Exchange Act and any other applicable
statute or regulation. The Indenture Trustee shall have no responsibility to
determine if the Depositary is so registered. Each Depositary shall enter into
an agreement with the Indenture Trustee governing the respective duties and
rights of such Depositary and the Indenture Trustee with regard to Book-Entry
Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by manual signature of an authorized officer
thereof, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Indenture Trustee
for cancellation as provided in SECTION 309, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of Definitive Securities of any series,
the Company may execute, and upon Company Order the Indenture Trustee shall
authenticate and deliver or make available for delivery, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
Definitive Securities in lieu of which they are issued and with such appropriate
insertions,
-29-
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause Definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of Definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
Definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute and
the Indenture Trustee shall authenticate and deliver or make available for
delivery in exchange therefor one or more Definitive Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
and tenor. Until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as Definitive
Securities of such series and tenor.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE; RESTRICTIONS
ON TRANSFER.
(a) General Provisions Relating to Transfers and Exchanges.
(i) The Company shall cause to be kept at the Corporate Trust
Office of the Indenture Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a Place of Payment
being herein sometimes collectively referred to as the "SECURITY REGISTER") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Indenture Trustee is hereby appointed "Security Registrar" for the purpose
of registering Securities and transfers and exchanges of Securities as herein
provided.
To permit registrations, transfers and exchanges of Securities,
the Company shall execute and the Trustee shall authenticate Definitive
Securities and Book-Entry Securities at the Security Registrar's request.
Notwithstanding anything herein to the contrary, there shall be only one
Security Register with respect to each series of Securities.
(ii) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to SECTIONS 304, 906 or 1107 not involving any transfer.
(iii) Notwithstanding any other provision in this Indenture,
unless and until it is exchanged in whole or in part for Securities that are not
in the form of a Book-Entry Security, a Book-Entry Security may not be
transferred or exchanged except as a whole by the Depositary with respect to
such Book-Entry Security to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
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(iv) All Definitive Securities and Book-Entry Securities issued
upon any registration of transfer or exchange of Definitive Securities or
Book-Entry Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Definitive Securities or Book-Entry Securities surrendered
upon such registration of transfer or exchange.
(v) The Company 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 the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under SECTION
1103 and ending at the close of business on the day of such mailing, 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.
(vi) Upon surrender for registration of transfer of any Security of
any series at the office or agency of the Company in a Place of Payment for
that series, the Company shall execute, and the Indenture Trustee shall
authenticate and deliver or make available for delivery, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount and tenor.
(vii) At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Securities to be exchanged at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Indenture Trustee shall authenticate and deliver or make
available for delivery, the Securities which the Holder making the exchange
is entitled to receive.
(viii) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Indenture Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Security Registrar and the Indenture Trustee duly executed by the Holder
thereof or his attorney duly authorized in writing.
(ix) Notwithstanding the foregoing, any Book-Entry Security shall
be exchangeable pursuant to this SECTION 305 for Securities registered in the
names of Persons other than the Depositary for such Security or its nominee
only if (i) such Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Book-Entry Security or if at any
time such Depositary ceases to be a clearing agency registered under the
Exchange Act and the Company does not appoint a successor Depositary within
90 days after receipt by it of such notice or after it becomes aware of such
cessation, (ii) the Company executes and delivers to the Indenture Trustee a
Company Order that such Book-Entry Security shall be so exchangeable or (iii)
there shall have occurred and be continuing an Event of Default with respect
to the Securities. Any Book-Entry Security that is exchangeable pursuant to
the preceding sentence shall be exchangeable for Securities registered in
such names as such Depositary shall direct.
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(x) None of the Company, the Indenture Trustee, any Paying Agent or
the Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests in a Book-Entry Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
(b) Transfer and Exchange of Securities.
When Definitive Securities are presented by a Holder to the
Security Registrar with a request: (x) to register the transfer of the
Definitive Securities; or (y) to exchange such Definitive Securities for an
equal principal amount of Definitive Securities of other authorized
denominations, the Security Registrar shall register the transfer or make the
exchange as requested if its requirements for such transactions are met;
provided, however, that the Definitive Securities presented or surrendered
for register of transfer or exchange: (i) shall be duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Security Registrar duly executed by such Holder or by his attorney, duly
authorized in writing; and (ii) in the case of a Definitive Security that is
a Transfer Restricted Security, such request shall be accompanied by the
following additional information and documents, as applicable: (A) if such
Transfer Restricted Security is being delivered to the Security Registrar by
a Holder for registration in the name of such Holder, without transfer, a
certification to that effect from such Holder (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in SECTION 203); or (B) if such Transfer Restricted
Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in accordance with Rule 144A
under the Securities Act or pursuant to an exemption from registration in
accordance with Rule 144 or Rule 904 under the Securities Act or pursuant to
an effective registration statement under the Securities Act, a certification
to that effect from such Holder (in substantially the form of the
"Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in SECTION 203) or (C) if such Transfer Restricted
Security is being transferred in reliance on another exemption from the
registration requirements of the Securities Act or the securities laws of any
other applicable jurisdiction, a certification to that effect from such
Holder (in substantially the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in SECTION 203)
and an Opinion of Counsel from such Holder or the transferee reasonably
acceptable to the Company and to the Security Registrar to the effect that
such transfer is in compliance with the Securities Act.
(c) Transfer of a Definitive Security for a Beneficial Interest in
a Book-Entry Security.
A Definitive Security may not be exchanged for a beneficial
interest in a Book-Entry Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive
Security, duly endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with: (i) if such
Definitive Security is a Transfer Restricted Security, a certification from
the Holder thereof (in substantially the form of the "Certificate to be
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Delivered Upon Exchange or Registration of Transfer of Securities" set forth
in SECTION 203) to the effect that such Definitive Security is being
transferred by such Holder to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act) in accordance with Rule 144A under the
Securities Act; and (ii) whether or not such Definitive Security is a
Transfer Restricted Security, written instructions from the Holder thereof
directing the Trustee to make, or to direct the Security Custodian to make,
an endorsement on the Book-Entry Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Book-Entry
Security, in which case the Trustee shall cancel such Definitive Security in
accordance with SECTION 309 and cause, or direct the Security Custodian to
cause, in accordance with the standing instructions and procedures existing
between the Depository and the Security Custodian, the aggregate principal
amount of Securities represented by the Book-Entry Security to be increased
accordingly. If no Book-Entry Securities are then outstanding, the Company
shall issue and, upon receipt of a Company Order in accordance with SECTION
303, the Trustee shall authenticate a new Book-Entry Security in the
appropriate principal amount.
(d) Transfer and Exchange of Book-Entry Securities.
The transfer and exchange of Book-Entry Securities or beneficial
interests therein shall be effected through the Depository, in accordance
with this Indenture and the procedures of the Depository therefor, which
shall include restrictions on transfer comparable to those set forth herein
to the extent required by the Securities Act.
(e) Transfer of a Beneficial Interest in a Book-Entry Security for
a Definitive Security.
(i) Any Person having a beneficial interest in a Book-Entry
Security may upon request exchange such beneficial interest for a Definitive
Security. Upon receipt by the Trustee of written instructions or such other
form of instructions as is customary for the Depository, from the Depository
or its nominee on behalf of any Person having a beneficial interest in a
Book-Entry Security, and, in the case of a Transfer Restricted Security, the
following additional information and documents (all of which may be submitted
by facsimile): (A) if such beneficial interest is being transferred to the
Person designated by the Depository as being the beneficial owner, a
certification to that effect from such Person (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in SECTION 203) or (B) if such beneficial interest is
being transferred to a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in accordance with Rule 144A under the
Securities Act or pursuant to an exemption from registration in accordance
with Rule 144 or Rule 904 under the Securities Act or pursuant to an
effective registration statement under the Securities Act, a certification to
that effect from the transferor (in substantially the form of "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities" set
forth in SECTION 203) or (C) if such beneficial interest is being transferred
in reliance on another exemption from the registration requirements of the
Securities Act or the securities laws of any other applicable jurisdiction, a
certification to that effect from the transferor (in substantially the form
of the "Certificate to be Delivered Upon Exchange or
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Registration of Transfer of Securities" set forth in SECTION 203) and an
Opinion of Counsel from the transferee or transferor reasonably acceptable to
the Company and to the Security Registrar to the effect that such transfer is
in compliance with the Securities Act, in which case the Trustee or the
Security Custodian, at the direction of the Trustee, shall, in accordance
with the standing instructions and procedures existing between the Depository
and the Security Custodian, cause the aggregate principal amount of
Book-Entry Securities to be reduced accordingly and, following such
reduction, the Company shall execute and, upon receipt of a Company Order in
accordance with SECTION 303, the Trustee shall authenticate and deliver to
the transferee a Definitive Security in the appropriate principal amount.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Book-Entry Security pursuant to this SECTION 305(e) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such
Definitive Securities to the Persons in whose names such Securities are so
registered.
(f) Restrictions on Transfer and Exchange of Book-Entry Securities.
Notwithstanding any other provision of this Indenture (other than
the provisions set forth in subsection (g) of this SECTION 305), a Book-Entry
Security may not be transferred as a whole except by the Depository to a
nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(g) Authentication of Securities in Absence of Depository.
If at any time: (i) the Depository for the Securities notifies the
Company that the Depository is unwilling or unable to continue as Depository
for the Book-Entry Securities and a successor Depository for the Book-Entry
Securities is not appointed by the Company within 90 days after delivery of
such notice; or (ii) the Company, at its sole discretion, notifies the
Trustee in writing that it elects to cause the issuance of Definitive
Securities under this Indenture, then the Company shall execute, and the
Trustee shall, upon receipt of a Company Order in accordance with SECTION
303, authenticate and deliver, Definitive Securities in an aggregate
principal amount equal to the principal amount of the Book-Entry Securities
in exchange for such Book-Entry Securities.
(h) Legends and Authentication of Securities under Specified
Circumstances.
(i) Except as permitted by the following paragraphs (iii) and (iv),
each Security certificate evidencing Book-Entry Securities and Definitive
Securities (and all Securities issued in exchange therefor or substitution
thereof) issued other than pursuant to Regulation S shall bear a legend in
substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
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AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1)
TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE FOR THIS [NOTE] [DEBENTURE] A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (3) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE
SECURITIES ACT OR (4) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES."
(ii) Except as permitted by the following paragraphs (iii) and
(iv), each Security certificate evidencing Book-Entry Securities and
Definitive Securities (and all Securities issued in exchange therefor or
substitution thereof) issued pursuant to Regulation S shall bear a legend in
substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, PRIOR
TO THE EXPIRATION OF A DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS 40 DAYS
AFTER THE ISSUE DATE WITH RESPECT TO THE [NOTES] [DEBENTURES]), MAY NOT BE:
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S OR
(2) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER
THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, OR (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE FOR THIS [NOTE] [DEBENTURE] A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES."
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Book-Entry
Security) pursuant to Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act: (A) in the case of
any Transfer Restricted Security that is a Definitive Security, the Security
Registrar shall permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Security that does not bear the legend
set forth in (i) OR (ii) above and rescind any restriction on the transfer of
such Transfer Restricted Security; and (B) in the case of any Transfer
Restricted Security
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represented by a Book-Entry Security, such Transfer Restricted Security shall
not be required to bear the legend set forth in (i) or (ii) above, but shall
continue to be subject to the provisions of Section 305(e); PROVIDED,
HOWEVER, that with respect to any request for an exchange of a Transfer
Restricted Security that is represented by a Book-Entry Security for a
Definitive Security that does not bear the legend set forth in (i) or (ii)
above, which request is made in reliance upon Rule 144, the Holder thereof
shall certify in writing to the Security Registrar that such request is being
made pursuant to Rule 144 (such certification to be substantially in the form
of the "Certificate to be Delivered Upon Exchange or Registration of Transfer
of Securities" set forth in SECTION 203).
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of a Company Order
in accordance with SECTION 303, the Trustee shall authenticate Exchange
Securities in exchange for Offered Securities accepted for exchange in the
Exchange Offer, which Exchange Securities shall not bear the legend set forth
in (i) or (ii) above, and the Security Registrar shall rescind any
restriction on the transfer of such Securities, in each case unless the
Holder of such Offered Securities is either (A) a broker-dealer, (B) a Person
participating in the distribution of the Offered Securities or (C) a Person
who is an affiliate (as defined in Rule 144A) of the Company.
(v) The letter required to be provided pursuant to paragraphs (i)
and (ii) above shall be substantially in the form of EXHIBIT 305(h)(v) hereto.
(i) Cancellation and/or Adjustment of Book-Entry Securities.
At such time as all beneficial interests in Book-Entry Securities
have been exchanged for Definitive Securities, redeemed, repurchased or
canceled, all Book-Entry Securities shall be returned to or retained and
canceled by the Trustee in accordance with SECTION 309. At any time prior to
such cancellation, if any beneficial interest in a Book-Entry Security is
exchanged for Definitive Securities, redeemed, repurchased or canceled, the
Trustee or the Security Custodian, at the direction of the Trustee, shall, in
accordance with the standing instructions and procedures existing between the
Depository and the Security Custodian, cause the aggregate amount of
Book-Entry Securities to be reduced accordingly.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Indenture Trustee,
the Company shall execute and the Indenture Trustee shall authenticate and
deliver or make available for delivery in exchange therefor a new Security of
the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Indenture
Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Indenture Trustee that such
Security has been acquired
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by a bona fide purchaser, the Company shall execute and the Indenture Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Indenture Trustee) connected
therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Securities of that series duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by SECTION 301 with
respect to any series of Securities, interest on any Security 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 at the office or agency maintained for such
purpose pursuant to SECTION 1002; PROVIDED, HOWEVER, that at the option of
the Company, interest on Securities of any series that bear interest may be
paid (i) by check mailed to the address of the Person entitled thereto as it
shall appear on the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security
Register; PROVIDED, that such Person shall have given the Indenture Trustee
written wire instructions at least five Business Days prior to the applicable
Interest Payment Date.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date
(herein called "DEFAULTED INTEREST") shall forthwith cease to be payable to
the Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clauses (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Indenture Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Indenture 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
Indenture Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be in immediately available funds and held in
trust for the benefit of the Persons entitled to such Defaulted Interest as
in this Clause provided. Thereupon the Indenture 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 Indenture Trustee
of the notice of the proposed payment (it being understood that the date of
the proposed payment shall be delayed, as necessary, by that numbers of days
that are required to allow for the minimum number of days (i.e., 10 days)
between the Special Record Date and the date of payment, and that the Trustee
will provide the Company with prompt written notice of any such required
delay after the Trustee's receipt of the Company's notice of the proposed
payment). The Indenture Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted Interest shall be
paid to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Indenture Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed practicable
by the Indenture Trustee.
In the case of any Security which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest Payment
Date), interest whose Stated Maturity is on such Interest Payment Date shall
be payable on such Interest Payment Date notwithstanding such conversion, and
such interest (whether or not punctually paid or duly provided for) 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 such Regular Record
Date. Except as otherwise expressly provided in the immediately preceding
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sentence, in the case of any Security which is converted, interest whose
Stated Maturity is after the date of conversion of such Security shall not be
payable.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of
transfer, the Company, the Indenture Trustee and any agent of the Company or
the Indenture Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of and any premium and (subject to SECTION 307) any interest on
such Security and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Indenture Trustee nor any
agent of the Company or the Indenture Trustee shall be affected by notice to
the contrary.
None of the Company, the Indenture Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial
ownership interests of any Book-Entry Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Section 309. CANCELLATION.
All Securities surrendered for payment, redemption, conversion,
repurchase, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Indenture Trustee, be delivered to the Indenture Trustee. All Securities so
delivered and any Securities surrendered directly to the Indenture Trustee
for any such purpose shall be promptly canceled by the Indenture Trustee and
such cancellation shall be noted conspicuously on each such Security. The
Company may at any time deliver to the Indenture Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Indenture
Trustee (or to any other Person for delivery to the Indenture Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Indenture Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture.
All canceled Securities held by the Indenture Trustee shall be disposed of as
directed by a Company Order or after 90 days, if not in receipt of such
Company Order, shall be disposed of in accordance with the Indenture
Trustee's customary procedures.
Section 310. COMPUTATION OF INTEREST.
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Except as otherwise specified as contemplated by SECTION 301 for
Securities of any series, (i) interest on the Securities of each series which
bear interest at a fixed rate shall be computed on the basis of a 360-day
year of twelve 30-day months and (ii) interest on the Securities of each
series which bear interest at a variable rate shall be computed on a basis of
the actual number of days in an interest period divided by 360.
Section 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Indenture Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; PROVIDED, that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such CUSIP
numbers. The Company will promptly notify the Indenture Trustee in writing
of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer, substitution, exchange, replacement and
conversion of such Securities herein expressly provided for), and the
Indenture Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in SECTION 306 and
(ii) such Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust, as provided in SECTION 1003)
have been delivered to the Indenture Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Indenture Trustee for cancellation (i) have become due and payable, or (ii)
will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Indenture Trustee for the giving of notice of redemption
by the
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Indenture Trustee in the name, and at the expense, of the Company, and the
Company, in the case of (B)(i), (ii) or (iii) above, has deposited or caused
to be deposited with the Indenture Trustee as trust funds in trust for the
purpose of payment and discharge an amount in the currency or currencies or
currency unit or units in which such Securities are payable sufficient to pay
and discharge the entire indebtedness on such Securities not theretofore
delivered to the Indenture Trustee for cancellation, for principal and any
premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such Securities have been
complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Indenture Trustee under
SECTION 607 and to any Authenticating Agent under SECTION 615 and, if money
shall have been deposited with the Indenture Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Indenture Trustee
under SECTION 402, ARTICLE SIX and the last paragraph of SECTION 1003 shall
survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of SECTION 1003,
all money deposited with the Indenture Trustee pursuant to SECTION 401 shall
be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Indenture Trustee may determine, to the Persons entitled thereto, of the
principal and any premium and interest for whose payment such money has been
deposited with the Indenture Trustee.
ARTICLE FIVE
Events of Default and Remedies
Section 501. EVENTS OF DEFAULT.
"EVENT OF DEFAULT", wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the
reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental
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body, unless it is inapplicable to a particular series or is specifically
deleted or modified in the Board Resolution (or action taken pursuant
thereto), Officers' Certificate or supplemental indenture under which such
series of Securities is issued or has been modified in an indenture
supplemental hereto):
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series, and continuance of such
default for a period of 30 days; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture with respect to Securities of
that series (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Indenture
Trustee or to the Company and the Indenture Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that series
(or, if any of the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount of
such Securities as may be specified in the terms thereof) a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 90
consecutive days; or
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(6) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission
by it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of any
such action; or
(7) any other Event of Default provided with respect to
Securities of that series.
Section 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default
described in clause 5 or 6 of SECTION 501) with respect to Securities of any
series at the time Outstanding occurs and is continuing, then in every such
case the Indenture Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of that series may declare the principal
amount (or, if any of the Securities of that series are Original Issue
Discount Securities or Indexed Securities, such portion of the principal
amount of such Securities as may be specified in the terms thereof) of all of
the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Indenture Trustee if given by Holders),
and upon any such declaration such principal amount (or, in the case of
Original Issue Discount Securities or Indexed Securities, such specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Indenture
Trustee as hereinafter in this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that series (or, if any of
the Securities of that series are Original Issue Discount Securities or
Indexed Securities, such portion of the principal amount of such Securities
as may be specified in the terms thereof), by written notice to the Company
and the Indenture Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Indenture
Trustee a sum sufficient to pay (A) all overdue interest on all Securities of
that series, (B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed
therefor in such Securities, (C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and (D) all sums paid or advanced by the
Indenture Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of that
series which have become due solely by such declaration of acceleration, have
been cured or waived as provided in SECTION 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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If an Event of Default described in clause 5 or 6 of SECTION
501 occurs, the Outstanding Securities shall ipso facto become immediately
due and payable without need of any declaration or other act on the part of
the Indenture Trustee or any Holder.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY INDENTURE
TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Indenture Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Indenture Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities
of such series by such appropriate judicial proceedings as the Indenture
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 504. INDENTURE TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Indenture Trustee shall be entitled and empowered, by intervention in such
proceeding or otherwise, to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Indenture
Trustee allowed in any such proceeding. In particular, the Indenture Trustee
shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments directly to the Indenture Trustee and, in the
event that the Indenture Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Indenture Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel, and any other amounts due the
Indenture Trustee under SECTION 607.
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No provision of this Indenture shall be deemed to authorize the
Indenture Trustee to authorize or consent to or accept or adopt on behalf of
any Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Indenture Trustee to vote in respect of the claim of any Holder in any
such proceeding; PROVIDED, HOWEVER, that the Indenture Trustee may, on behalf
of the Holders, vote for the election of a trustee in bankruptcy or similar
official and may be a member of a creditors' or other similar committee.
Section 505. INDENTURE TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Indenture Trustee without
the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Indenture Trustee pursuant to this
Article shall be applied in the following order, at the date or dates fixed
by the Indenture Trustee and, in case of the distribution of such money on
account of principal or any premium or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Indenture Trustee
under SECTION 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium 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 any premium and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
The Indenture Trustee may fix a record date and payment date
for any payment to holders of Securities pursuant to this SECTION 506. At
least 15 days before such record date, the Company shall mail to each holder
of Securities and the Indenture Trustee a notice that states the record date,
the payment date and amount to be paid.
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Section 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Indenture Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to
the Indenture Trustee to institute proceedings in respect of such Event of
Default in its own name as Indenture Trustee hereunder;
(3) such Holder or Holders have offered to the Indenture
Trustee indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Indenture Trustee for 60 days after its receipt of
such notice, request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Indenture Trustee before or during such 60-day period by
the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to SECTION 307) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. RESTORATION OF RIGHTS AND REMEDIES.
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If the Indenture Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Indenture Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the
Company, the Indenture Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all
rights and remedies of the Indenture Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of SECTION 306 and as otherwise provided in SECTION 507, no right
or remedy herein conferred upon or reserved to the Indenture Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Indenture Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default or an acquiescence therein. Every right and remedy
given by this Article or by law to the Indenture Trustee or to the Holders
may be exercised from time to time, and as often as may be deemed expedient,
by the Indenture Trustee or by the Holders, as the case may be.
Section 5012. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right, after notice and
request made to the Indenture Trustee pursuant to SECTION 105 hereof, to
direct the time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or exercising any trust or power
conferred on the Indenture Trustee, with respect to the Securities of such
series; PROVIDED, that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Indenture Trustee may take any other action deemed
proper by the Indenture Trustee which is not inconsistent with such direction,
and
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(3) subject to the provisions of SECTION 601, the Indenture
Trustee shall have the right to decline to follow any such direction if the
Indenture Trustee in good faith shall, by a Responsible Officer or Officers
of the Indenture Trustee, determine that the proceeding so directed would
involve the Indenture Trustee in personal liability.
Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect
to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Indenture Trustee for any action
taken, suffered or omitted by it as Indenture Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of
such suit, and may assess costs, including counsel fees and expenses, against
any such party litigant, in the manner and to the extent provided in the
Trust Indenture Act; PROVIDED, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company, the Indenture Trustee, a Holder of Securities pursuant to SECTION 508,
or the Holders of more than 10% in aggregate principal amount of the
Outstanding Securities of any series.
ARTICLE SIX
The Indenture Trustee
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Indenture Trustee shall
be as provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Indenture Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
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performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Whether or not therein expressly so provided, every provision
of this Indenture relating to the conduct or affecting the liability of or
affording protection to the Indenture Trustee shall be subject to the
provisions of this Section.
Section 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any
series, the Indenture Trustee shall, to the extent a Responsible Officer of
the Indenture Trustee has actual knowledge of such default, within 90 days
after such default becomes known to the Trustee, give the Holders of
Securities of such series notice of such default as and to the extent
provided by the Trust Indenture Act; PROVIDED, HOWEVER, that in the case of
any default of the character specified in SECTION 501(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
Section 603. CERTAIN RIGHTS OF INDENTURE TRUSTEE.
Subject to the provisions of SECTION 601:
(a) the Indenture Trustee may conclusively rely and shall
fully be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Trustees may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Indenture Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the
Indenture Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate or an Opinion of Counsel;
(d) the Indenture Trustee may consult with counsel of its
selection and the written advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and
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protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Indenture Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Indenture Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
(f) the Indenture Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Indenture Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Indenture Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
(g) the Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent, attorney, custodian or nominee appointed with due care by it hereunder;
(h) the duties of the Indenture Trustee shall be determined
solely by the express provisions of this Indenture and the Trust Indenture
Act, and the Indenture Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee;
(i) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of, or affording protection to, the Indenture Trustee is subject to
the provisions of this SECTION 603;
(j) the Indenture Trustee shall not be liable for interest on
any money received by it hereunder except as the Indenture Trustee may agree
in writing with the Company. Money held in trust by the Indenture Trustee
hereunder need not be segregated from other funds except to the extent
required by law; and
(k) the Indenture Trustee shall not be liable for any action
taken, suffered or omitted by it in good faith and reasonably believed by it
to be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
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Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Indenture Trustee's certificates of authentication, shall be taken as the
statements of the Company, and neither the Indenture Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities. Neither the Indenture Trustee nor
any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. MAY HOLD SECURITIES AND SERVE AS INDENTURE TRUSTEE UNDER OTHER
INDENTURES.
The Indenture Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to SECTIONS 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not Indenture Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
Subject to the provisions of SECTION 608, the Indenture Trustee may
become and act as indenture trustee under other indentures under which other
securities, or certificates of interest or participation in other securities,
of the Company are outstanding in the same manner as if it were not Indenture
Trustee.
Section 606. MONEY HELD IN TRUST.
Money held by the Indenture Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The
Indenture Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Company.
Section 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Indenture Trustee from time to time such
reasonable compensation as shall be agreed in writing between the Company and
the Indenture Trustee for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Indenture Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Indenture Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such
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expense, disbursement or advance as may be attributable to its negligence,
willful misconduct or bad faith; and
(3) to indemnify each of the Indenture Trustee, its officers,
directors, employees and agents or any predecessor Indenture Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of the
trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Indenture Trustee shall have a lien prior to the Securities
upon all property and funds held by it hereunder for any amount owing it or
any predecessor Indenture Trustee pursuant to this SECTION 607, except with
respect to funds held in trust for the benefit of the Holders of particular
Securities.
Without limiting any rights available to the Indenture Trustee
under applicable law, when the Indenture Trustee incurs expenses or renders
services in connection with an Event of Default specified in SECTION 501(5)
or 501(6), the expenses (including the reasonable charges and expenses of its
counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Indenture
Trustee.
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Indenture Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Indenture Trustee
shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture. To the extent permitted by the Trust Indenture Act, the
Indenture Trustee shall not be deemed to have a conflicting interest by
virtue of being a trustee under this Indenture with respect to Securities of
more than one series.
Section 609. CORPORATE INDENTURE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Indenture Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust Indenture Act to act
as such and has a combined capital and surplus of at least $50,000,000. If
such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of any federal or state supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time the Indenture Trustee shall cease to be eligible in accordance with the
provisions of this
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Section, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Indenture Trustee and no
appointment of a successor Indenture Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Indenture Trustee in accordance with the applicable requirements of SECTION
611.
(b) The Indenture Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Indenture Trustee
required by SECTION 611 shall not have been delivered to the Indenture
Trustee within 30 days after the giving of such notice of resignation, the
resigning Indenture Trustee may petition, at the expense of the Company, any
court of competent jurisdiction for the appointment of a successor Indenture
Trustee with respect to the Securities of such series.
(c) The Indenture Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series, delivered
to the Indenture Trustee and to the Company. If the instrument of acceptance
by a successor Indenture Trustee required by SECTION 611 shall not have been
delivered to the Indenture Trustee within 30 days after the giving of such
notice of removal, the Indenture Trustee being removed may petition, at the
expense of the Company, any court of competent jurisdiction for the
appointment of a successor Indenture Trustee with respect to the Securities
of such series.
(d) If at any time:
(1) the Indenture Trustee shall fail to comply with SECTION
608 after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Indenture Trustee shall cease to be eligible under
SECTION 609 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Indenture Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the Indenture
Trustee or of its property shall be appointed or any public officer shall
take charge or control of the Indenture Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Indenture Trustee and appoint a successor Indenture Trustee
with respect to all Securities, or (ii) subject to SECTION 514, any Holder
who has been a bona fide Holder of a Security for at least six
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months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Indenture Trustee
with respect to all Securities and the appointment of a successor Indenture
Trustee or Indenture Trustees.
(e) If the Indenture Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Indenture
Trustee for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Indenture Trustee or Indenture Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Indenture 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 Indenture Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of SECTION 611.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Indenture Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Indenture Trustee, the successor
Indenture Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of SECTION 611,
become the successor Indenture Trustee with respect to the Securities of such
series and to that extent supersede the successor Indenture Trustee appointed
by the Company. If no successor Indenture Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by SECTION 611, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Indenture Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Indenture Trustee with respect to the Securities of any series
and each appointment of a successor Indenture Trustee with respect to the
Securities of any series to all Holders of Securities of such series in the
manner provided in SECTION 106. Each notice shall include the name of the
successor Indenture Trustee with respect to the Securities of such series and
the address of its Corporate Trust Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Indenture Trustee with respect to all Securities, every such successor
Indenture Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Indenture Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective and such successor Indenture
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Indenture
Trustee; but, on the request of the Company or the successor Indenture
Trustee, such retiring Indenture Trustee shall, upon payment of all sums due
and owing to the Indenture Trustee under SECTION 607, execute and deliver an
instrument transferring to such successor Indenture
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Trustee all the rights, powers and trusts of the retiring Indenture Trustee
and shall duly assign, transfer and deliver to such successor Indenture
Trustee all property and money held by such retiring Indenture Trustee
hereunder.
(b) In case of the appointment hereunder of a successor
Indenture Trustee with respect to the Securities of one or more (but not all)
series, the Company, the retiring Indenture Trustee and each successor
Indenture Trustee with respect to the Securities of one or more series shall
execute and deliver an indenture supplemental hereto wherein each successor
Indenture 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 Indenture Trustee all the rights, powers,
trusts and duties of the retiring Indenture Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Indenture Trustee relates, (2) if the retiring Indenture 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 Indenture Trustee with respect to
the Securities of that or those series as to which the retiring Indenture
Trustee is not retiring shall continue to be vested in the retiring Indenture
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 Indenture Trustee, it
being understood that nothing herein or in such supplemental indenture shall
constitute such Indenture Trustees co-trustees of the same trust and that
each such Indenture Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Indenture Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Indenture
Trustee shall become effective to the extent provided therein and each such
successor Indenture Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Indenture Trustee with respect to the Securities of that or those
series to which the appointment of such successor Indenture Trustee relates;
but, on request of the Company or any successor Indenture Trustee, such
retiring Indenture Trustee shall duly assign, transfer and deliver to such
successor Indenture Trustee all property and money held by such retiring
Indenture Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Indenture Trustee relates;
PROVIDED, HOWEVER, that to the extent that such property and money is not
held by the Indenture Trustee in trust for the benefit of the Holders of
particular Securities, such retiring Indenture Trustee shall transfer and
deliver to such successor Indenture Trustee such property and money upon
payment of all sums due and owing to such retiring Indenture Trustee under
SECTION 607.
(c) Upon request of any such successor Indenture Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Indenture Trustee all such
rights, powers and trusts referred to in paragraph (a) and (b) of this
Section, as the case may be.
(d) No successor Indenture Trustee shall accept its appointment
unless at the time of such acceptance such successor Indenture Trustee shall
be qualified and eligible under this Article.
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Section 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to all or substantially all
the corporate trust business of the Indenture Trustee, shall be the successor
of the Indenture Trustee hereunder, PROVIDED such corporation shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities shall have been authenticated, but not
delivered, by the Indenture Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Indenture Trustee may
adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Indenture Trustee had itself
authenticated such Securities.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Indenture Trustee shall be or become a creditor of
the Company (or any other obligor upon the Securities), the Indenture Trustee
shall be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 614. INVESTMENT OF CERTAIN PAYMENTS HELD BY THE INDENTURE TRUSTEE.
Any amounts held by the Indenture Trustee hereunder, other than
pursuant to Article Thirteen hereof, shall be invested by the Indenture
Trustee from time to time at the written direction of the Company in such
investments as may be specified by the Company and reasonably agreed to by
the Indenture Trustee from time to time; PROVIDED, that in investing trust
funds pursuant to the terms of this Section and liquidating any investments
held in trust hereunder, the Indenture Trustee may, to the extent permitted
by law, purchase securities (including for the purposes of this paragraph
securities as to which the Indenture Trustee or a Indenture Trustee Affiliate
(as defined below) is the issuer or guarantor) from, and sell securities to,
itself or any Indenture Trustee Affiliate and purchase securities
underwritten by, or in which a market is made by, the Indenture Trustee or a
Indenture Trustee Affiliate. For the purposes hereof, a "INDENTURE TRUSTEE
AFFILIATE" shall mean an entity that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, the Indenture Trustee. Any income or gain realized as a result
of any such investment shall be promptly distributed (in no event later than
the next Business Day) to the Company after any intended amounts have been
paid to the Holders entitled thereto, except after the occurrence and during
the continuance of an Event of Default. The Indenture Trustee shall have no
liability to the Company for any loss resulting from any investment made in
accordance with this Section, and shall bear no expense in connection with
any investment pursuant to this Section. Any such investment may be sold
(without regard to maturity date) by the Indenture Trustee whenever necessary
to make any distribution required by this Indenture. Nothing herein shall
require the Indenture Trustee to invest funds held by it pursuant to the last
paragraph of SECTION 1003.
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Section 615. RIGHTS AND PROTECTIONS OF INDENTURE TRUSTEE THAT ALSO ACTS AS
PAYING AGENT OR SECURITY REGISTRAR
In the event that the Indenture Trustee is also acting as Paying
Agent or Security Registrar hereunder, the rights and protections afforded to
the Indenture Trustee pursuant to this Article 6 shall also be afforded to
such Paying Agent or Security Registrar.
Section 616. APPOINTMENT OF AUTHENTICATING AGENT.
The Indenture Trustee may appoint an Authenticating Agent or Agents
with respect to one or more series of Securities which shall be authorized to
act on behalf of the Indenture Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer
or partial redemption thereof or pursuant to SECTION 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Indenture
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Indenture Trustee or the
Indenture Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Indenture
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Indenture Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision
or examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. If at any
time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
Agent shall be a party, or any corporation succeeding to all or substantially
all the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent; PROVIDED, such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the
Indenture Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Indenture Trustee and to the Company. The Indenture
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in
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case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Indenture Trustee may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class
mail, postage prepaid, to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of this section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Indenture Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: ____________________
Bankers Trust Company, As Indenture Trustee
By _______________________________________
As Authenticating Agent
By _______________________________________
Authorized Signatory
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ARTICLE SEVEN
Holders' Lists and Reports by Indenture Trustee and Company
Section 701. COMPANY TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
The Company will furnish or cause to be furnished to the Indenture
Trustee (a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Holders as of such Regular Record Date, as the case may be, and (b) at such
other times as the Indenture Trustee may request in writing, within 30 days
after the receipt by the Company of any such request, a list in similar form
and content as of a date not more than 15 days prior to the time such list is
furnished. Notwithstanding the foregoing, so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Indenture Trustee shall preserve, in as current a form
as is reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Indenture Trustee as provided in
SECTION 701 and the names and addresses of Holders received by the Indenture
Trustee in its capacity as Security Registrar. The Indenture Trustee may
destroy any list furnished to it as provided in SECTION 701 upon receipt of a
new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities,
and the corresponding rights and privileges of the Indenture Trustee, shall
be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Indenture Trustee that neither the
Company nor the Indenture Trustee nor any agent of either of them shall be
held accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act.
Section 703. REPORTS BY INDENTURE TRUSTEE.
(a) The Indenture Trustee shall transmit to Holders such reports
concerning the Indenture Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313(a) of the Trust
Indenture Act, the Indenture Trustee shall, within sixty days after each
[May 15] following the date of the first issuance of Securities hereunder
deliver to Holders a brief report, dated as of such [May 15], which complies
with the provisions of such Section 313(a). The Indenture Trustee also shall
comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
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(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Indenture Trustee with each stock
exchange upon which any Securities are listed, with the Commission and with
the Company. The Company promptly will notify the Indenture Trustee in
writing when any Securities are listed on any stock exchange or delisted
therefrom.
Section 704. REPORTS BY COMPANY.
The Company shall file with the Indenture Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
PROVIDED, that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Indenture Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
entity or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety
shall be a corporation, partnership or trust organized and validly existing
under the laws of the United States of America, any State thereof or the
District of Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Indenture Trustee, in form satisfactory
to the Indenture Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance
of every covenant and the satisfaction of every condition of this Indenture
on the part of the Company to be performed, observed or satisfied;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
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This Section shall not apply to any merger or consolidation in
which the Company is the surviving entity.
Section 802. SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in
accordance with SECTION 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor Person had been named as
the Company herein, and thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations and covenants under
this Indenture and the Securities.
Section 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL.
The Indenture Trustee, subject to the provisions of SECTIONS 601
and 603, shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any such consolidation, merger, conveyance, transfer
or lease, and any such assumption, complies with the provisions of this
Article before the Indenture Trustee shall execute any supplemental indenture
required pursuant to this Article.
ARTICLE NINE
Supplemental Indentures
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Indenture Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
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(3) to add any additional Events of Default with respect to all
or any series of Securities; or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the issuance
of Securities in uncertificated form or in the form of Book- Entry
Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities; PROVIDED, that any
such addition, change or elimination (i) 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
(ii) shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by SECTIONS 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Indenture 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 Indenture Trustee,
pursuant to the requirements of SECTION 611(b); or
(9) if allowed, without penalty under applicable laws and
regulations, to permit payment in the United States (including any of the
States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal,
premium, if any, or interest, if any, on Securities in bearer form or
coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein or to make any other provisions with respect to matters or
questions arising under this Indenture; PROVIDED, that such action pursuant
to this clause (10) other than with respect to a defective provision, shall
not adversely affect the interests of the Holders of Securities Outstanding
of any series in any material respect.
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Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely
affected by such supplemental indenture (or, if any of the Securities of that
series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount of such Securities as may be specified in the
terms thereof), by Act of said Holders delivered to the Company and the
Indenture Trustee, the Company, when authorized by a Board Resolution, and
the Indenture Trustee may enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; PROVIDED, HOWEVER, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to SECTION 502,
or change any Place of Payment where, or the coin or currency in which, any
Security or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or adversely affect any right of the Holder of any Security
to require the Company to repurchase such Securities, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, SECTION 513 or
SECTION 1009, except to increase any percentage set forth in such Sections 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; PROVIDED, HOWEVER, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the references
to "the Indenture Trustee" and concomitant changes in this Section and
SECTION 1009, or the deletion of this proviso, in accordance with the
requirements of SECTIONS 611(b) and 901(8).
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.
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It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Indenture Trustee shall be
entitled to receive, and (subject to SECTION 601) shall be fully protected in
relying upon, an Officers' Certificate and an Opinion of Counsel, each
stating that the execution of such supplemental indenture is authorized and
permitted by this Indenture and, in the case of such Opinion of Counsel, that
such supplemental indenture, when executed by the Trustee, will constitute a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles. The Indenture Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Indenture
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall if required by the Indenture Trustee, bear a notation in form approved
by the Indenture Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Indenture Trustee and the
Company, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Indenture Trustee in
exchange for Outstanding Securities of such series.
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ARTICLE TEN
Covenants
Section 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities of the series in accordance
with the terms of the Securities and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Indenture Trustee is hereby initially
appointed Paying Agent, and the Corporate Trust Office of the Indenture
Trustee is initially designated as the office or agency for the foregoing
purposes. The Company will give prompt written notice to the Indenture
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Indenture Trustee, and
the Company hereby appoints the Indenture Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to
time rescind such designations; PROVIDED, HOWEVER, that no such designation
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Indenture Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of
the principal of (and premium, if any) or interest on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the
Indenture Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Indenture Trustee) the Company will promptly
notify the Indenture Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Indenture Trustee to execute and deliver to the
Indenture Trustee an instrument in which such Paying Agent shall agree with
the Indenture Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Indenture Trustee notice of any default
by the Company (or any other obligor upon the Securities of that
series) in the making of any payment of principal (and premium,
if any) or interest on the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in trust
by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Indenture Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be
held by the Indenture Trustee upon the same trusts as those upon which such
sums were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any money deposited with the Indenture Trustee or any Paying Agent,
or received by the Indenture Trustee in respect of obligations deposited with
the Indenture Trustee pursuant to ARTICLE THIRTEEN, or then held by the
Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request (unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law), or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof
(unless the Company has remitted
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required moneys or other property to the appropriate governmental authority
under any applicable escheat or abandoned or unclaimed property laws, or has
otherwise been discharged under such laws or laws of similar applicability,
in which case such Holder shall look solely to its remedies (if any) under
such laws and not to the Company), and all liability of the Indenture Trustee
or such Paying Agent with respect to such trust money, and all liability of
the Company as trustee thereof shall thereupon cease; PROVIDED, HOWEVER, that
the Indenture Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once,
in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the City of [New York],
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
Section 1004. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income or profits of the Company or any
Subsidiary, and (2) all lawful claims for labor materials and supplies which,
if unpaid, might by law become a lien upon any property of the Company or any
Subsidiary; PROVIDED, HOWEVER, that the Company shall not be required to pay
or discharge or cause to be paid or discharged any such tax, assessment,
charge or claim (a) whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or (b) which is not of
material importance to the business, operations, financial condition or
results of operations of the Company and its Subsidiaries taken as a whole.
Section 1005. MAINTENANCE OF PROPERTIES.
The Company will cause all of its material properties used or
useful in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company or any Subsidiary from selling or otherwise disposing for value its
properties in the ordinary course of its business.
Section 1006. TRUST EXISTENCE.
Subject to ARTICLE EIGHT, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its real
estate investment trust existence, rights (charter and statutory) and
franchises; PROVIDED, HOWEVER, that the Company shall not be required to
preserve any such right or franchise if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company.
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Section 1007. LIMITATION UPON LIENS.
[The Company will not itself, and will not permit any Subsidiary
to, create, incur, issue, assume, guarantee or secure any notes, bonds,
debentures or other similar evidences of indebtedness for money borrowed (notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
being hereinafter in this Section and SECTION 1008 called "DEBT"), secured by
any pledge of, or mortgage, lien, encumbrance or security interest on (such
pledges, mortgages, liens, encumbrances and security interests being hereinafter
in this Section, in SECTION 801 and in SECTION 1008 collectively called
"LIENS"), any property owned or leased by the Company or any Subsidiary, or on
any shares or Debt of any Subsidiary owned or held by the Company or any other
Subsidiary, without effectively providing that the Securities (together with, if
the Company shall so determine, any other Debt of the Company or such Subsidiary
then existing or thereafter created which is not subordinate to the Securities)
shall be secured equally and ratably with (or prior to) such secured Debt (for
the purpose of providing such equal and ratable security, the principal amount
of any Securities shall mean the aggregate principal amount of such Securities
which are Outstanding and shall not be less than that principal amount which
could be declared to be due and payable pursuant to SECTION 502 on the date of
the making of such effective provision, and the extent of such equal and ratable
security shall be adjusted, to the extent permitted by law, as and when said
principal amount changes over time pursuant to SECTION 502 and any other
provision hereof), so long as such secured Debt shall be so secured, unless,
after giving effect thereto, the aggregate principal amount of all such secured
Debt then outstanding PLUS Attributable Debt of the Company and its Subsidiaries
in respect of Sale and Leaseback Transactions entered into after the date of
this Indenture (other than Sale and Leaseback Transactions permitted by SECTION
1008(b)) would not exceed an amount equal to 10% of Consolidated Net Assets;
PROVIDED, HOWEVER, that nothing contained in this Section shall prevent,
restrict or apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(a) Liens on any property or assets of the Company or any
Subsidiary or on any shares or Debt existing as of the date of this
Indenture;
(b) Liens on all property or assets of, or on any shares or Debt
of, any corporation existing at the time such corporation becomes a
Subsidiary;
(c) Liens on any property or assets or shares or Debt existing
at the time of acquisition thereof (including acquisition through merger
or consolidation) or securing the payment of all or any part of the
purchase price or construction cost thereof or securing any Debt
incurred prior to, at the time of or within 120 days after the
acquisition of such property or assets or shares or Debt or the
completion of any such construction, whichever is later, for the purpose
of financing all or any part of the purchase price or construction cost
thereof (PROVIDED, such Liens are limited to such shares or Debt,
property or assets, improvements thereon and the land upon which such
property, assets and improvements are located and any other property or
assets not then constituting a property);
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(d) Liens on any property or assets to secure all or any, part
of the cost of development, operation, construction, alteration, repair
or improvement of all or any part of such property, or assets, or to
secure Debt incurred prior to, at the time of or within 120 days after
the completion of such development, operation, construction, alteration,
repair or improvement, whichever is later, for the purpose of financing
all or any part of such cost (PROVIDED, such Liens are limited to such
property or assets, improvements thereon and the land upon which such
property, assets and improvements are located and any other property or
assets not then constituting a property);
(e) Liens which secure Debt owing to the Company or another
Subsidiary by a Subsidiary;
(f) (i) Liens arising from the assignment of moneys due and to
become due under contracts between the Company or any Subsidiary and the
United States of America, any State, Territory, or possession thereof or
any agency, department, instrumentality or political subdivision of any,
thereof, (ii) Liens in favor of the United States of America, any State,
Commonwealth, Territory or possession thereof or any agency, department,
instrumentality or political subdivision of any thereof, pursuant to the
provisions of any contract not directly or indirectly in connection with
securing Debt or (iii) Liens arising in connection with obligations
issued by a State, Commonwealth, Territory or possession of the United
States of America, or any political subdivision or governmental
authority of any of the foregoing, or the District of Columbia;
(g) any deposit or pledge as security for the performance of any
bid, tender, contract, lease or undertaking not directly or indirectly
in connection with the securing of Debt; any deposit or pledge with any
governmental agency required or permitted to qualify the Company or any
Subsidiary to conduct business, to maintain self-insurance or to obtain
the benefits of any law pertaining to workmen's compensation,
unemployment insurance, old age pensions, social security or similar
matters, or to obtain any stay or discharge in any legal or
administrative proceedings; deposits or pledges to obtain the release of
mechanics', workmen's, repairmen's, materialmen's or warehousemen's
liens or the release of property in the possession of a common carrier;
any security interest created in connection with the sale, discount or
guarantee of notes, chattel mortgages, leases, accounts receivable,
trade acceptances or other paper, or contingent repurchase obligations,
arising out of sales of merchandise in the ordinary course of business;
liens permitted by SECTION 1004; or other deposits or pledges similar to
those referred to in this subdivision (g);
(h) Liens arising by reason of any judgment, decree or order of
any court or other governmental authority, so long as any appropriate
legal proceedings which may have been initiated for the review of such
judgment, decree or order shall not have been finally terminated or so
long as the period within which such proceedings may be initiated shall
not have expired; and
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(i) any extension, renewal, substitution or replacement (or
successive extensions, renewals, substitutions or replacements), as a
whole or in part, of any of the Liens referred to in subdivisions (a)
through (h) above or the Debt secured thereby; PROVIDED, that (1) such
extension, renewal, substitution or replacement Lien shall be limited to
all or any part of the same property or assets, shares or Debt that
secured the Lien extended, renewed, substituted or replaced (plus
improvements on such property and any other property or assets not then
constituting a property) and (2) in the case of subdivisions (a) through
(c) above, the Debt secured by such Lien at such time is not increased.
Debt created by the Company or any Subsidiary shall not be
cumulated with a guarantee of the same Debt by the Company, or any other
Subsidiary for the same financial obligation.]
Section 1008. LIMITATION UPON SALES AND LEASEBACKS.
[The Company will not itself, and will not permit any Subsidiary
to, enter into any Sale and Leaseback Transaction after the date of this
Indenture, unless either:
(a) the Attributable Debt of the Company and its Subsidiaries in
respect of such Sale and Leaseback Transaction and all other Sale and
Leaseback Transactions entered into after the date of this Indenture
(other than Sale and Leaseback Transactions permitted by SECTION
1008(b)), plus the aggregate principal amount of Debt secured by Liens
on properties then outstanding (excluding any such Debt secured by Liens
covered in subdivisions (a) through (i) of the first paragraph of
SECTION 1007) without equally and ratably securing the Securities, would
not exceed 10% of Consolidated Net Assets, or
(b) the Company applies, within 120 days after the sale or
transfer, an amount equal to the fair market value of the property so
sold and leased back at the time of entering into such Sale and
Leaseback Transaction (as determined by any two of the following: [the
Chairman or Vice Chairman of the Board, the President, any Vice
Chairman, any Vice President, the Treasurer and the Controller] of the
Company) to (i) the purchase of any asset or any interest in an asset
which would qualify, after purchase, as a property or (ii) the
retirement of Funded Debt (including Securities of any series
constituting Funded Debt) of the Company (and any redemption of
Securities of any series pursuant to this provision shall, if provided
in the terms of such particular series of Securities, not be prohibited
pursuant to any redemption provision of such series otherwise
prohibiting redemption when such would constitute a refunding operation
or anticipated refunding operation or similar refunding operation);
PROVIDED, that the amount to be applied to the retirement of Funded Debt
of the Company shall be reduced by (i) the principal amount of
Securities delivered within 120 days after such sale or transfer to the
Indenture Trustee for redemption and cancellation, and (ii) the
principal amount of Funded Debt, other than Securities, voluntarily
retired by the Company within 120 days after such sale. For purposes of
clauses (i) and (ii) of the
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foregoing proviso, the principal amount of any Securities shall mean the
aggregate principal amount of such Securities which are Outstanding and
shall not be less than that principal amount which could be declared to
be due and payable pursuant to SECTION 502 at the time of determination.
Notwithstanding the foregoing, no retirement referred to in this
subdivision (b) may be effected by payment at maturity or pursuant to
any mandatory sinking fund payment or any mandatory prepayment
provision.
Notwithstanding the foregoing, where the Company or any Subsidiary
is the lessee in any Sale and Leaseback Transaction, Attributable Debt shall
not include any Debt resulting from the guarantee by the Company or any other
Subsidiary of the lessee's obligation thereunder.]
Section 1009. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in SECTIONS 1004 to 1008, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Indenture Trustee in respect of any such covenant or condition
shall remain in full force and effect.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to waive compliance with
any covenant or condition hereunder. If a record date is fixed, the Holders
on such record date, or their duly designated proxies, and only such Persons,
shall be entitled to waive any such compliance, whether or not such Holders
remain Holders after such record date.
Section 1010. COMPLIANCE CERTIFICATE.
The Company will furnish to the Indenture Trustee on or before
[May 1] in each year (beginning the first [May 1] after the date of original
issuance of Securities hereunder) a brief certificate (which need not comply
with SECTION 102) from the principal executive, financial or accounting
officer of the Company stating that in the course of the performance by the
signer of his or her duties as an officer of the Company he or she would
normally have knowledge of any default or non-compliance by the Company in
the performance of any covenants or conditions contained in this Indenture,
stating whether or not he or she has knowledge of any such default or
non-compliance and, if so, specifying each such default or non-compliance of
which the signer has knowledge and the nature thereof. For purposes of this
SECTION 1010, non-compliance or default shall be determined without regard to
any grace period or requirement of notice provided pursuant to the terms of
the Indenture.
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Section 1011. INSURANCE. The Company will, and will cause each of
its Subsidiaries to, keep all of its insurable properties insured against
loss or damage in commercially reasonable amounts with insurers of recognized
responsibility.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by SECTION 301 for
Securities of any series) in accordance with this Article.
Section 1102. ELECTION TO REDEEM: NOTICE TO INDENTURE TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or Officers' Certificate. In
case of any redemption at the election of the Company of the Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Indenture Trustee), notify the Indenture Trustee in writing of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In the case of any redemption of Securities (a) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture or (b) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Indenture Trustee
with an Officers' Certificate evidencing compliance with such restriction or
condition.
Section 1103. SELECTION BY INDENTURE TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to
be redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Indenture Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such
method as the Indenture Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of a portion of the principal amount
of any Security of such series; PROVIDED, that the unredeemed portion of the
principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. If less than all of the Securities of such series and of a
specified tenor are to be redeemed (unless such redemption affects only a
single Security), the particular Securities to be redeemed shall be selected
not more than 60 days prior to
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the Redemption Date by the Indenture Trustee, from the Outstanding Securities
of such series and specified tenor not previously called for redemption in
accordance with the preceding sentence.
The Indenture Trustee shall promptly notify the Company in writing
of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall identify the Securities to be
redeemed (including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price, plus accrued interest, if any,
(3) in the case of partial redemption of any Securities, 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 are to be
surrendered for payment of the Redemption Price,
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(6) that the redemption is for a sinking fund, if such is the
case, and
(7) that there exists a conversion privilege.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's request, by
the Indenture Trustee in the name and at the expense of the Company
(PROVIDED, that the Indenture Trustee has received the notice of redemption
at least 45 days prior to the Redemption Date unless a shorter period is
agreed to by the Indenture Trustee) and shall be irrevocable.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
On or prior to 11:00 a.m., New York City time, on the Redemption
Date, the Company shall deposit with the Indenture Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in SECTION 1003) an amount of money in the currency
or currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to SECTION 301 for the Securities of such
series) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the Securities or portions thereof which are to be redeemed on that date.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified, and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; PROVIDED, HOWEVER, that, unless
otherwise specified as contemplated by SECTION 301, installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of SECTION 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor
in the Security.
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Section 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the
Indenture Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Indenture Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing),
and the Company shall execute, and the Indenture Trustee shall authenticate
and deliver or make available for delivery to the Holder of such Security
without service charge, a new Security or Securities of the same series and
of like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered. If a Book-Entry
Security is so surrendered, such new Security so issued shall be a new
Book-Entry Security.
ARTICLE TWELVE
Sinking Funds
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise
specified as contemplated by SECTION 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "MANDATORY
SINKING FUND PAYMENT", and any payment in excess of such minimum amount
provided for by the terms of 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 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided
for by the terms of Securities of such series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a
credit Securities of a series 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 or any part of any
sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the
terms of such series; PROVIDED, that such Securities have not been previously
so credited. Such Securities shall be received and credited for such purpose
by the Indenture Trustee
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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 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for
any series of Securities, the Company will deliver to the Indenture Trustee
an Officers' Certificate specifying the amount of the next ensuing 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 1202 and stating the basis for
such credit and that such Securities have not been previously so credited
and will also deliver to the Indenture Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date
the Indenture Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in SECTION 1103 and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in SECTION 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in SECTIONS 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE
OR COVENANT DEFEASANCE.
Unless, pursuant to SECTION 301, provision is made that either or
both of (a) defeasance of the Securities of a series under SECTION 1302 or
(b) covenant defeasance of the Securities of a series under SECTION 1303
shall not apply to the Securities of a series, then the provisions of such
Section or Sections, as the case may be, together with the other provisions
of this Article Thirteen, with such modifications thereto as may be specified
pursuant to SECTION 301 with respect to any Securities, shall be applicable
to the Securities of such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such series, elect
to have either SECTION 1302 (if applicable) or SECTION 1303 (if applicable)
applied to the Outstanding Securities of such series upon compliance with the
conditions set forth below in this ARTICLE THIRTEEN.
Section 1302. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option (if applicable) to have
this Section applied to any series of Securities, the Company shall be deemed
to have been discharged from its obligations with respect to the Outstanding
Securities of such series on and after the date the conditions precedent set
forth below are satisfied (hereinafter, "DEFEASANCE"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by the Outstanding Securities
of such series which shall thereafter be
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deemed to be "OUTSTANDING" only for the purposes of the Sections of this
Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Indenture Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of Outstanding
Securities of such series to receive, solely from the trust fund described in
SECTION 1304 as more fully set forth in such Section, payments of the
principal of (and premium, if any) and interest on such Securities when such
payments are due, (B) the Company's obligations with respect to such
Securities under SECTIONS 305, 306, 1002 and 1003 and such obligations as
shall be ancillary thereto, (C) the rights, powers, trusts, duties,
immunities and other provisions in respect of the Indenture Trustee hereunder
and (D) this Article Thirteen. Subject to compliance with this ARTICLE
THIRTEEN, the Company may exercise its option under this SECTION 1302
notwithstanding the prior exercise of its option under SECTION 1303 with
respect to the Securities of such series. Following a defeasance, payment of
such Securities may not be accelerated because of an Event of Default.
Section 1303. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if applicable) to have
this Section applied to any Series of Securities, the Company shall be
released from its obligations under SECTIONS 801, 1007 and 1008 (and any
covenant made applicable to such Securities pursuant to SECTION 301) and the
occurrence of an event specified in SECTION 501(4) (with respect to any of
SECTIONS 801, 1007 or 1008 or any such covenant) (and any other Event of
Default applicable to such Securities that are determined pursuant to SECTION
301 to be subject to this provision) shall not be deemed to be an Event of
Default with respect to the Outstanding Securities of such series on and
after the date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and such Securities shall thereafter be deemed not to
be "OUTSTANDING" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with SECTIONS 801, 1007 or 1008 (and any other covenant made
applicable to such Security pursuant to SECTION 301) and any such Events of
Default, but shall continue to be deemed "OUTSTANDING" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with
respect to the Outstanding Securities of such series, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant whether
directly or indirectly by reason of any reference elsewhere herein to any
such Section or such other covenant or by reason of any reference in any such
Section or such other covenant to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. Notwithstanding the defeasance by the Company of its
obligations under SECTION 801, any successor shall be required to assume the
Company's obligations under SECTION 607 as a condition to such succession.
Section 1304. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
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The following shall be the conditions precedent to application of
either SECTION 1302 or SECTION 1303 to the Outstanding Securities of or
within such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Indenture Trustee (or another indenture trustee satisfying
the requirements of SECTION 609 who shall agree to comply with the provisions
of this ARTICLE THIRTEEN applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount (in such currency, currencies or currency units in
which such Securities are then specified as payable at Maturity), or (B) U.S.
Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in an amount, or
(C) a combination thereof in an amount, sufficient, without reinvestment, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Indenture
Trustee, to pay and discharge, and which shall be applied by the Indenture
Trustee (or other qualifying indenture trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest on the Outstanding Securities
of such series upon the Maturity of such principal, premium, if any, or
interest and (ii) any mandatory sinking fund payments applicable to such
Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities. Before such
a deposit the Company may make arrangements satisfactory to the Indenture
Trustee for the redemption of Securities at a future date or dates in
accordance with ARTICLE ELEVEN, which shall be given effect in applying the
foregoing. For this purpose, "U.S. GOVERNMENT OBLIGATIONS" means securities
that are (x) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the option
of the issuer thereof, and shall also include a depositary receipt issued by
a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian
with respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depositary receipt; PROVIDED,
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as SECTIONS 501(5) and 501(6) are concerned, at any
time during the period ending on the 91st day after the date of such deposit
or, if longer, ending on the day following the expiration of the longest
preference period applicable to the Company in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
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(3) Such defeasance or covenant defeasance shall not (A) cause
the Indenture Trustee for the Securities of such series to have a conflicting
interest as defined in SECTION 608 or for purposes of the Trust Indenture Act
with respect to any Securities of the Company or (B) result in the trust
arising from such deposit to constitute, unless it is qualified as, a
regulated investment company under the Investment Company Act of 1940, as
amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or material instrument to which the Company is a
party or by which it is bound.
(5) In the case of an election under SECTION 1302, the Company
shall have delivered to the Indenture Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (y) since the date of this Indenture
there has been a change in the applicable federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that,
the Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of such
defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(6) In the case of an election under SECTION 1303, the Company
shall have delivered to the Indenture Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such covenant defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to SECTION 301.
(8) The Company shall have delivered to the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
SECTION 1302 or the covenant defeasance under SECTION 1303 (as the case may
be) have been complied with.
Section 1305. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of SECTION 1003,
all money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Indenture Trustee or other qualifying indenture trustee
(collectively, for purposes of this SECTION 1305, the "INDENTURE TRUSTEE")
pursuant to SECTION 1304 in respect of the Outstanding Securities of such
series shall be held in trust and applied by the Indenture Trustee, in
accordance with the provisions of such
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Securities and this Indenture, to the payment, either directly or through any
Paying Agent (but not including the Company acting as its own Paying Agent)
as the Indenture Trustee may determine, to the Holders of such Securities, of
all sums due and to become due thereon in respect of principal (and premium,
if any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Indenture Trustee against
any tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to SECTION 1304 or the principal
and interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Indenture
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
SECTION 1304 which in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Indenture Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
Section 1306. REINSTATEMENT.
If the Indenture Trustee or the Paying Agent is unable to apply any
money in accordance with SECTION 1305 by reason of any order or judgment or
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under the
Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to this ARTICLE THIRTEEN until such time as the
Indenture Trustee or Paying Agent is permitted to apply all such money in
accordance with SECTION 1305; PROVIDED, HOWEVER, that if the Company makes
any payment of principal of (and premium, if any) or interest on any such
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Indenture Trustee or the Paying Agent.
Section 1307. QUALIFYING INDENTURE TRUSTEE.
Any indenture trustee appointed pursuant to SECTION 1304 for the
purpose of holding trust funds deposited pursuant to that Section shall be
appointed under any agreement in form acceptable to the Indenture Trustee and
shall provide to the Indenture Trustee a certificate of such indenture
trustee, upon which certificate the Indenture Trustee shall be entitled to
conclusively rely, that all conditions precedent provided for herein to the
related defeasance or covenant defeasance have been complied with. In no
event shall the Indenture Trustee be liable for any acts or omissions of said
indenture trustee.
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ARTICLE FOURTEEN
of Organizers, Promoters, Shareholders, Officers, Trustees and
Employees
Section 1401. EXEMPTION FROM INDIVIDUAL LIABILITY.
No recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture, or of any Security, or for any claim based
thereon or otherwise in respect thereof, shall be had against any organizer,
promoter, shareholder, officer, trustee, or employee, as such, past, present
or future, of the Company or of any successor entity, either directly or
through the Company or any successor entity, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture,
any supplemental indenture modifying this Indenture and the obligations
issued hereunder are solely real estate investment trust obligations of the
Company, and that no such personal liability whatever shall attach to, or is
or shall be incurred by, the organizers, promoters, shareholders, officers,
trustees, or employees, as such, of the Company or of any successor entity,
or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture, in any supplemental indenture modifying this
Indenture or in any of the Securities or implied therefrom; and that any and
all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such organizer, promoter, shareholder, officer, trustee, or employee,
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture, in any supplemental indenture modifying this Indenture, or in
any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture, any supplemental indenture modifying this Indenture and the issue
of such Securities.
*****
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the day and year first above written.
PRIME GROUP REALTY TRUST
By: _______________________________________
Name:
Title:
BANKERS TRUST COMPANY, as Indenture Trustee
By: _______________________________________
Name:
Title:
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