WORLD FINANCIAL PROPERTIES, L.P.
and
THE BANK OF NEW YORK, as Trustee
-----------------------------
INDENTURE
Dated as of November 20, 1996
-----------------------------
$
Increasing Rate Convertible Notes due 2004
CROSS REFERENCE TABLE1
TIA Indenture
Section Section
310 (a) (1)............................................... 7.10
(a) (2)............................................... 7.10
(a) (3)............................................... N.A.2
(a) (4)............................................... N.A.
(a) (5)............................................... N.A.
(b)................................................... 7.8; 7.10
(c)................................................... N.A
311 (a)................................................... 7.11
(b)................................................... 7.11
(c)................................................... N.A
312 (a)................................................... 2.5
(b)................................................... 10.3
(c)................................................... 10.3
313 (a)................................................... 6.6
(b) (1)............................................... N.A.
(b) (2)............................................... 6.6
(c)................................................... 6.6
(d)................................................... 6.6
314 (a)................................................... 4.2; 4.3; 10.2
(b)................................................... N.A.
(c) (1)............................................... 10.4
(c) (2)............................................... 10.4
(c) (3)............................................... N.A.
(d)................................................... N.A
(e)................................................... 10.5
(f)................................................... N.A.
315 (a)................................................... 7.1
(b)................................................... 7.5
(c)................................................... 7.1
(d)................................................... 7.1
(e)................................................... 6.11
316 (a) (last sentence)................................... 2.9
(a) (1) (A)........................................... 6.5
(a) (1) (B)........................................... 6.4
(a) (2)............................................... N.A.
(b)................................................... 6.7
(c)................................................... 2.13
317 (a) (1)............................................... 6.8
(a) (2)............................................... 6.9
(b)................................................... 2.4
318 (c)................................................... 10.1
1. Notes: This Cross Reference Table shall not, for any purpose, be deemed to
be part of this Indenture.
2. N.A. means Not Applicable.
TABLE OF CONTENTS1
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.............. 1
SECTION 1.1. Definitions............................................. 1
SECTION 1.2. Other Definitions....................................... 15
SECTION 1.3. Incorporation by Reference of Trust Indenture
Act.................................................. 17
SECTION 1.4. Rules of Construction................................... 17
SECTION 1.5. Acts of Holders......................................... 17
ARTICLE 2 THE NOTES............................................... 18
SECTION 2.1. Form and Dating......................................... 18
SECTION 2.2. Execution and Authentication; Aggregate Principal
Amount............................................... 19
SECTION 2.3. Registrar and Paying Agent.............................. 19
SECTION 2.4. Paying Agent To Hold Money in Trust. ................... 20
SECTION 2.5. Noteholder Lists........................................ 20
SECTION 2.6. Transfer and Exchange................................... 21
SECTION 2.7. Replacement Notes....................................... 21
SECTION 2.8. Outstanding Notes....................................... 22
SECTION 2.9. Treasury Notes.......................................... 22
SECTION 2.10. Temporary Notes......................................... 23
SECTION 2.11. Cancellation............................................ 23
SECTION 2.12. Defaulted Interest...................................... 23
ARTICLE 3 REDEMPTION.............................................. 23
SECTION 3.1. Optional Right to Redeem; Notices to Trustee............ 23
SECTION 3.2. Selection of the Notes or Portions Thereof to be Redeemed. 24
SECTION 3.3. Notice of Redemption.................................... 24
SECTION 3.4. Effect of Notice of Redemption.......................... 25
SECTION 3.5. Deposit of Redemption Price............................. 25
SECTION 3.6. Notes Redeemed in Part.................................. 26
SECTION 3.7. Special Procedures for Change in Control Offer,
Excess Proceeds Offer and Capital Infusion Offer..... 26
ARTICLE 4 COVENANTS............................................... 29
SECTION 4.1. Payment of Principal, Premium and Interest.............. 29
SECTION 4.2. Provision of Reports and Other Information.............. 29
SECTION 4.3. Compliance Certificates................................. 31
SECTION 4.4. Further Instruments and Acts............................ 32
SECTION 4.5. Maintenance of Office or Agency......................... 32
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1 This Table of Contents shall not, for any purpose, be deemed to be part of
this Indenture.
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Page
SECTION 4.6. Limitation on Restricted Payments...................... 32
SECTION 4.7. Limitation on Additional Indebtedness.................. 33
SECTION 4.8. Limitation on Transactions with Affiliates............. 34
SECTION 4.9. Repurchase Upon Change in Control...................... 34
SECTION 4.10. Limitation on Use of Proceeds from Asset Sales......... 34
SECTION 4.11. Payment of Taxes and Other Claims...................... 35
SECTION 4.12. Corporate or Partnership or Other Existence............ 36
SECTION 4.13. Maintenance of Properties and Insurance................ 36
SECTION 4.14. Stay, Extension and Usury Laws......................... 36
SECTION 4.15. Payment for Consent.................................... 37
SECTION 4.16. Covenant to Comply with Securities Laws upon
Purchase of the Notes................................ 37
SECTION 4.17. Capital Infusion Offer................................. 37
SECTION 4.18. Officers' Certificates................................. 37
SECTION 4.19. Tag Along Rights....................................... 37
SECTION 4.20. Certain Amendments to Partnership Agreement............ 40
SECTION 4.21. Limitations on Subsidiary Owners....................... 40
ARTICLE 5 SUCCESSOR ENTITY....................................... 41
SECTION 5.1. When the Company May Merge or Transfer Assets.......... 41
SECTION 5.2. Surviving Entity Substituted........................... 42
ARTICLE 6 DEFAULTS AND REMEDIES.................................. 43
SECTION 6.1. Events of Default...................................... 43
SECTION 6.2. Acceleration........................................... 45
SECTION 6.3. Other Remedies......................................... 45
SECTION 6.4. Waiver of Past Defaults................................ 46
SECTION 6.5. Control by Holders..................................... 46
SECTION 6.6. Limitation on Suits.................................... 46
SECTION 6.7. Rights of Holders to Receive Payment................... 47
SECTION 6.8. Collection Suit by Trustee............................. 47
SECTION 6.9. Trustee May File Proofs of Claim....................... 48
SECTION 6.10. Priorities............................................. 48
ARTICLE 7 TRUSTEE................................................ 49
SECTION 7.1. Duties of Trustee...................................... 49
SECTION 7.2. Rights of Trustee...................................... 50
SECTION 7.3. Individual Rights of Trustee........................... 50
SECTION 7.4. Trustee's Disclaimer................................... 51
SECTION 7.5. Notice of Defaults..................................... 51
SECTION 7.6. Reports by Trustee to Holders.......................... 51
SECTION 7.7. Compensation and Indemnity............................. 51
SECTION 7.8. Replacement of Trustee................................. 52
SECTION 7.9. Successor Trustee by Merger............................ 53
SECTION 7.10. Eligibility; Disqualification.......................... 53
SECTION 7.11. Preferential Collection of Claims Against the Company.. 53
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Page
ARTICLE 8 DISCHARGE OF INDENTURE; LEGAL DEFEASANCE AND COVENANT
DEFEASANCE............................................. 54
SECTION 8.1. Legal Termination...................................... 54
SECTION 8.2. Company's Option to Effect Legal Defeasance or
Covenant Defeasance................................. 54
SECTION 8.3. Legal Defeasance and Discharge......................... 54
SECTION 8.4. Covenant Defeasance.................................... 54
SECTION 8.5. Conditions to Legal Defeasance and Covenant Defeasance. 55
SECTION 8.6. Reinstatement.......................................... 56
SECTION 8.7. Repayment to the Company............................... 56
SECTION 8.8. Survival of Holders' Conversion Rights and Company's
Obligation to Provide Reports....................... 56
ARTICLE 9 AMENDMENTS............................................. 57
SECTION 9.1. Without Consent of Holders............................. 57
SECTION 9.2. With Consent of Holders................................ 57
SECTION 9.3. Supplemental Indentures. .............................. 58
SECTION 9.4. Revocation and Effect of Consents, Waivers and Actions. 58
SECTION 9.5. Notation on or Exchange of the Notes. ................. 58
SECTION 9.6. Trustee to Sign Supplemental Indentures................ 59
SECTION 9.7. Effect of Amendments and Supplemental Indentures....... 59
ARTICLE 10 MISCELLANEOUS.......................................... 59
SECTION 10.1. Trust Indenture Act Controls........................... 59
SECTION 10.2. Notices................................................ 59
SECTION 10.3. Communication by Noteholder with Other Noteholders..... 60
SECTION 10.4. Certificate and Opinion as to Conditions Precedent..... 60
SECTION 10.5. Statements Required in Certificate or Opinion.......... 61
SECTION 10.6. Severability Clause.................................... 61
SECTION 10.7. Rules by Trustee, Paying Agent and Registrar........... 61
SECTION 10.8. Legal Holidays......................................... 61
SECTION 10.9. Governing Law; Submission to Jurisdiction.............. 61
SECTION 10.10. Indenture Controls..................................... 62
SECTION 10.11. Successors............................................. 62
SECTION 10.12. Multiple Originals; Counterparts....................... 62
ARTICLE 11 CONVERSION OF NOTES.................................... 62
SECTION 11.1. Conversion Privilege and Conversion Price.............. 62
SECTION 11.2. Exercise of Conversion Privilege....................... 63
SECTION 11.3. .................................................... 64
SECTION 11.4. Adjustment of Conversion Price......................... 64
SECTION 11.5. Notice of Adjustments of Conversion Price.............. 70
SECTION 11.6. Notice of Certain Partnership Action................... 70
SECTION 11.7. Issuance of Class A Interests.......................... 71
SECTION 11.8. Taxes on Conversions................................... 71
SECTION 11.9. Responsibility of Trustee.............................. 71
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Page
ARTICLE 12 REPRESENTATIONS AND WARRANTIES......................... 72
SECTION 12.1. Corporate/Partnership Status........................... 72
SECTION 12.2. Corporate/Partnership Power and Authority.............. 72
SECTION 12.3. No Violation........................................... 72
SECTION 12.4. Class A Interests Issuable upon Conversion of Notes.... 73
SECTION 12.5. Governmental Approvals................................. 73
SECTION 12.6. Investment Company Act; Public Utility Holding
Company Act......................................... 73
SECTION 12.7. Corporate/Partnership Structure; Capitalization........ 73
SECTION 12.8. No Default............................................. 74
SECTION 12.9. Licenses, etc.......................................... 74
SECTION 12.10. Compliance with Law.................................... 74
SIGNATURES .................................................... 75
SCHEDULE I OUTSTANDING INDEBTEDNESS............................... I-1
SCHEDULE II CONSENTS............................................... II-1
SCHEDULE III CORPORATE/PARTNERSHIP STRUCTURE; CAPITALIZATION. . .... III-1
EXHIBIT A FORM OF NOTES.......................................... A-1
EXHIBIT B CLOSING OPINION REQUIREMENTS........................... B-1
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Indenture, dated as of November 20, 1996, between WORLD FINANCIAL
PROPERTIES, L.P., a Delaware limited partnership (the "Company") and The Bank of
New York, a New York banking corporation, as trustee (the "Trustee").
In furtherance of the consummation and implementation of the
transactions contemplated in the Plan, the parties agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Company's Increasing Rate Convertible Notes due 2004 (the "Notes") issued
under this Indenture from time to time:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
"Acquisition" means the acquisition by any Acquisition Subsidiary of a
New Property or any New Property Equity Interest.
"Acquisition Subsidiary" means any Subsidiary of the Company that is
created after the date hereof specifically for the purpose of acquiring a New
Property or any New Property Equity Interest or that owns, at the time in
question, any direct or indirect interest in any such New Property or New
Property Equity Interest.
"Additional Partnership Interests" means any Partnership Interests
issued by the Company after the Effective Date, other than Class A Interests
issued upon conversion of any of the Notes or the Class B Interests outstanding
on the date hereof.
"Adjusted Tag-Along Amount" means, in respect of the Notes of any
Holder that has delivered a Tag-Along Notice relating to a particular Tag-Along
Sale, the product of (i) the maximum principal amount of Notes specified in such
Holder's Tag- Along Notice and (ii) a fraction, the numerator of which is the
actual percentage (which shall not be less than the Original Sale Percentage in
respect of such Tag-Along Sale) of all then outstanding Class A Interests
(computed on a basis that assumes all Notes (exclusive of accrued interest
thereon) have been converted to Class A Interests) that the applicable Tag-
Along Purchaser has agreed to purchase in such Tag-Along Sale and the
denominator of which is the Original Sale Percentage in respect of such
Tag-Along Sale plus the aggregate of (A) the Tag-Along Sale Percentages of each
Holder that has delivered a Tag-Along Notice in respect of such Tag-Along Sale
and (B) the Tag-Along Sale Percentages (as defined in the Partnership Agreement
as in effect on the date hereof) of each Tag-Along Partner (as defined in the
Partnership Agreement as in effect on the date hereof) in respect of such
Tag-Along Sale.
"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. A Person shall be deemed to "control"
(including the correlative meanings, the terms "controlling," "controlled by"
and "under common control with") a specified Person if the controlling Person
possesses (or is a member of a group (as such term
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is used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act as in effect on
the Effective Date) that possesses), directly or indirectly, the power to direct
or cause the direction of the management or policies of the specified Person,
whether through ownership of Equity Interests, by agreement or otherwise.
"Agent" means the Registrar or any Paying Agent or Conversion Agent of
the Company.
"Asset Sale" means, with respect to any Person, the sale, lease,
conveyance, disposition or other transfer by such Person of any of its assets
(including, without limitation, (a) by way of a sale-and-leaseback, merger,
consolidation or otherwise, (b) the sale, assignment or other transfer (by
merger, consolidation or otherwise) of any Equity Interests of any Subsidiary of
that Person and (c) any amendment, waiver, modification, transfer, sale or
assignment of any Management Agreement) other than (i) the issuance by the
Company or any of its Subsidiaries of its Equity Interests in a transaction that
constitutes a Capital Infusion, (ii) the lease or sublease of any real or
personal property in the ordinary course of business to existing tenants or new
tenants in respect of space to be occupied or used by such tenant, its
Affiliates or its subtenants in any building owned by the Company or any
Subsidiary of the Company, (iii) conversion of Cash Equivalents to cash in the
ordinary course of business, (iv) the consolidation or merger of the Company or
the sale, lease, conveyance or other disposition of all or substantially all of
the assets of the Company, in each case in accordance with the provisions of
Section 5.1 hereof, (v) if such Person is the Company or any Subsidiary of the
Company, the sale, lease, conveyance or other disposition of any assets to the
Company or to any Subsidiary of the Company that is not an Acquisition
Subsidiary and that does not have outstanding any Nonrecourse Debt or (vi) the
sale, lease, conveyance or other disposition, or any other transaction or any
series of related transactions, of the character described in clauses (a), (b)
or (c) above, the gross proceeds of which do not exceed $500,000.
"Average Life" means, as of the date of determination, with respect to
any Indebtedness, the quotient obtained by dividing (i) the sum of the products
of the numbers of years from the date of determination to the dates of each
successive scheduled principal payment (assuming the exercise by the obligor of
such debt security of all unconditional (other than as to the giving of notice)
extension options of each such scheduled payment date) of such Indebtedness
multiplied by the amount of such principal payment by (ii) the sum of all such
principal payments.
"Bankruptcy Court" means the United States District Court for the
Southern District of New York having jurisdiction over the Reorganization Cases
(as defined in the Plan) and, to the extent of any reference under Section 157,
Title 28, United States Code, the unit of such District Court constituted under
Section 151, Title 28, United States Code.
"Bankruptcy Law" means Title 11 of the United States Code, or any
similar Federal or state law for the relief of debtors.
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"Board Resolution" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors of such Person and to be in
full force and effect on the date of such certification.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which banking institutions in New York, New York are authorized by law or
required by executive order to close.
"Capital Infusion" means (i) the receipt by the Company or any
Subsidiary of the Company of Cash or other consideration for any issuance or
sale by the Company or any Subsidiary of the Company of any Equity Interest of
the Company or any Subsidiary of the Company (other than (w) the sale by the
Company or any Subsidiary of the Company of previously issued and then
outstanding Equity Interests of a Person in which the Company or the selling
Subsidiary, as the case may be, has a direct or indirect interest; (x) the
capital infusion of $75 million in Cash provided to the Company by the
Co-Proponents on the Effective Date pursuant to Section 18.12 of the Plan, (y)
the conversion of Class B Interests outstanding on the date hereof into Class A
Interests as required pursuant to the Partnership Agreement (as it exists on the
date hereof) and (z) capital contributions made by the Company or any Subsidiary
of the Company to the Company or another Subsidiary of the Company), (ii) the
receipt by the Company or any Subsidiary of the Company of Cash or other
consideration for any Indebtedness Incurred by the Company or any Subsidiary of
the Company, and (iii) any capital contribution to the Company or any Subsidiary
thereof (other than capital contributions made by the Company or any Subsidiary
of the Company to the Company or another Subsidiary of the Company); provided,
however, that none of the following shall constitute a Capital Infusion:
(a) any Emergency Capital Infusion made in the form of a
contribution to the capital of the Company, a purchase from the
Company of Equity Interests of the Company or a purchase of
Subordinated Debt from the Company;
(b) any Refinancing Transaction;
(c) any transfer of assets (other than Cash) to the Company as a
capital contribution to the Company, or in exchange for Equity
Interests of the Company or Subordinated Debt, in connection with an
Acquisition;
(d) the Incurrence of any Nonrecourse Debt issued in payment of,
or to finance, the purchase price of, and all reasonable and customary
out-of-pocket acquisition expenses actually incurred by the relevant
Acquisition Subsidiary in connection with, an Acquisition, provided
that the amount of the Nonrecourse Debt issued in connection with such
Acquisition does not exceed 80% of the purchase price of the New
Property or the New Property Equity Interest acquired in such
Acquisition;
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(e) any Cash capital contribution to the Company, or any amount
of Cash paid to the Company in exchange for Equity Interests of the
Company or Subordinated Debt, to the extent that such Cash is used to
pay a portion of the purchase price of, and all reasonable and
customary out-of-pocket acquisition expenses actually incurred by the
relevant Acquisition Subsidiary in connection with, an Acquisition
that is not paid or financed by the issuance of Nonrecourse Debt
referred to in clause (iv) above;
(f) the Incurrence by the Company of Permitted Indebtedness;
(g) the Incurrence of Indebtedness for borrowed money by the
Company or any Subsidiary of the Company so long as such Indebtedness
is, at all times, owed solely to the Company and Subsidiaries of the
Company that are not Acquisition Subsidiaries;
(h) any Nonrecourse Debt Refinancing Transaction or
(i) any Subordinated Debt Refinancing Transaction.
The amount of any Capital Infusion shall be deemed to be equal to the amount of
cash or other consideration (valued at the fair market value thereof) received
by the Company or any Subsidiary of the Company in such Capital Infusion (after
deducting therefrom all reasonable and customary out-of-pocket expenses actually
incurred by the Company or the relevant Subsidiary of the Company in connection
with such Capital Infusion); provided, however, that (A) if the Company or any
Subsidiary of the Company shall guarantee, or otherwise become contingently
liable with respect to or xxxxx x xxxx on any of its assets as security for,
Indebtedness of another Person (other than a nonrecourse pledge of shares of a
class of Capital Stock (which class of Capital Stock is entitled to elect one
director) of a GP Subsidiary Owner with respect to any Office Building Property
as security for Indebtedness secured by such Office Building Property), there
shall be deemed to be a Capital Infusion in an amount equal to the principal
amount of such Indebtedness of such other Person and (B) in the case of a
transaction of the character described in clause (i), (ii) or (iii) of this
definition in which any Subsidiary of the Company that is not a Wholly-Owned
Subsidiary is the recipient of a Capital Infusion, the amount of such Capital
Infusion shall be deemed to be the excess of (1) the amount of such Capital
Infusion in the absence of this clause (B) over (2) the amount of such Capital
Infusion attributable, directly or indirectly, to Persons (other than the
Company and its Subsidiaries) that hold, directly or indirectly, Equity
Interests of such Subsidiary.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
which would at such time be so required to be capitalized on the balance sheet
in accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock (including,
without
-4-
limitation, common and preferred stock), excluding warrants, options or other
rights to acquire Capital Stock.
"Cash" means money or currency or a credit balance each in U.S.
dollars in a demand, savings, passbook, money market or like account with a
commercial bank, savings and loan association or like organization or a
government securities dealer, other than an account evidenced by a negotiable
certificate of deposit.
"Cash Equivalents" means (i) direct obligations of the United States
of America or any agency thereof having maturities of not more than one year
from the date of acquisition, (ii) time deposits and certificates of deposit of
any domestic commercial bank of recognized standing, having capital and surplus
in excess of $500 million, with maturities of not more than one year from the
date of acquisition, (iii) commercial paper rated at least A-1 or the equivalent
thereof by Standard & Poor's Corporation or at least P-1 or the equivalent
thereof by Xxxxx'x Investor Services, Inc., in each case maturing within one
year after the date of acquisition and (iv) shares of any money market mutual
fund, or similar fund, which invests exclusively in investments of the types
described in clauses (i) through (iii) above.
"Change in Control" means the occurrence of any of the following: (a)
any sale, lease, transfer, exchange or other disposition in one or more related
transactions of all or substantially all of (i) the assets or Equity Interests
of the Company, a Controlling Partner or the Company and its Subsidiaries (taken
as a whole) to any Person or group (as such term is used in Sections 13(d)(3)
and 14(d)(2) of the Exchange Act as in effect on the Effective Date; for
purposes of this definition the Company and the Controlling Partners shall be
deemed to be registrants within the meaning of the Exchange Act) other than to a
Person that is a Subsidiary of the Company both immediately before and
immediately after giving effect to such transactions; (b) the merger or
consolidation of the Company or a Controlling Partner with or into another
Person, or the merger of another Person into the Company or a Controlling
Partner or any other transaction, with the effect, in any such case, that (1)
the holders of Equity Interests of the Company or a Controlling Partner, as the
case may be, immediately prior to such transaction hold directly or indirectly
after such transaction 50% or less in value of the outstanding Equity Interests
of the Company, such Controlling Partner or the surviving entity, as relevant,
or (2) the Co-Proponents in the aggregate do not have the right to control
directly or indirectly (whether through ownership of Equity Interests, by
agreement or otherwise) the management and affairs of the Company, such
Controlling Partner or the surviving entity, as relevant; (c) the first date on
which the Co-Proponents in the aggregate own beneficially or of record 50% or
less in value of the outstanding Equity Interests of the Company or a
Controlling Partner; (d) the first date on or after the Effective Date on which
the Co-Proponents in the aggregate do not have the right to control directly or
indirectly (whether through ownership of Equity Interests, by agreement or
otherwise) the management and affairs of the Company and of each Controlling
Partner; or (e) the approval by a Controlling Partner or the required holders of
Equity Interests of the Company of any plan for the liquidation or dissolution
of the Company.
"Class A Interests" means Class A Units (as defined in the Partnership
Agreement (as in effect on the date hereof)) and any Equity Interests into which
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such Class A Units may be changed after the Effective Date and shall also
include Equity Interests of any successor or acquiring person referred to in
Section 11.4(c) received by or distributed to the holders of such Equity
Interests in the circumstances contemplated by Section 11.4(c).
"Class B Interests" means the Class B Units (as defined in the
Partnership Agreement (as in effect on the date hereof)) issued on the Effective
Date pursuant to Section 18.1.1 of the Plan.
"Commission" means the Securities and Exchange Commission and any
successor thereto.
"Consolidated Net Worth" of the Company means consolidated interest
holders' equity as determined in accordance with GAAP.
"Controlling Partner" means any general partner of the Company (other
than a general partner of the Company that has no authority to act on behalf of,
or to bind, the Company) or any Person exercising similar functions if the
Company is not a partnership.
"Conversion Agent" means the Trustee and any other person appointed by
the Company authorized by the Company to perform the duties of a Conversion
Agent specified in this Indenture.
"Conversion Notice" means a notice substantially in the form annexed
to the Notes.
"Convertible Securities" means evidences of indebtedness or other
securities or Equity Interests which are convertible into or exchangeable, with
or without payment of additional consideration in cash or property, for
Additional Partnership Interests, either immediately or upon the occurrence of a
specified date or a specified event.
"Co-Proponents" means, collectively, Canadian Imperial Bank of
Commerce, Dragon Holdings Limited, Citibank, N.A. and Brookfield Properties
Corporation.
"Core Properties" means, collectively, (i) that certain parcel of real
property located at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, together with the
office building and other improvements existing thereon, (ii) that certain
parcel of real property located at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx,
together with the office building and other improvements existing thereon, (iii)
that certain parcel of real property located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, together with the office building and other improvements existing thereon,
(iv) the leasehold interest in that certain parcel of real property located at
One World Financial Center, New York, New York, together with the office
building and other improvements existing thereon, (v) the leasehold interest in
that certain parcel of real property located at Two World Financial Center, New
York, New York, together with the office building and other improvements
existing thereon, and (vi) the leasehold interest in
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that certain parcel of real property located at Four World Financial Center, New
York, New York, together with the office building and other improvements
existing thereon; and "Core Property" means any of the foregoing.
"CP Certificate" means a written certificate signed in the name of the
Company by two officers of a Controlling Partner and delivered to the Trustee.
"Current Market Price" as of any date with respect to any security
means the average of the Quoted Prices of such security for the twenty-five (25)
consecutive trading days (or, if such security is publicly traded but has been
so traded for less than twenty-five (25) consecutive trading days, such shorter
period in which such security has been publicly traded) immediately preceding
such date; provided, however, that, if an event described in Section 11.4(a)(i)
through 11.4(a)(iii) occurs with respect to such security during the period from
the first of such consecutive trading days through the last of such consecutive
trading days, the computation of Current Market Price shall be appropriately
adjusted to take account of such event. "Quoted Price" of any security for any
date shall be the last reported sales price (or, in case no such sale takes
place on such date, the average of the reported closing bid and ask of prices)
of such security as reported by the principal national securities exchange on
which such security is listed or traded, or as reported by the NASDAQ National
Market System, or if such security is neither so reported nor listed or traded,
the average of the last reported bid and ask prices of such security in the
over-the-counter market on such date. If such security is not listed or traded
on any national securities exchange or quoted in the over-the-counter market,
the Current Market Price of such security shall be deemed to be the fair market
value of such security as determined in good faith by the Board of Directors of
a Controlling Partner and as evidenced by a Board Resolution, which resolution
shall be delivered as soon as practicable thereafter to the Trustee; provided,
however, that if the Current Market Price of such security is being valued in
connection with any Equity Interests owned or purchased by or issued, delivered
or otherwise distributed to any of the Company's Affiliates or its Related
Persons, then, unless such Equity Interests are being valued in connection with
a transaction in which a greater number of New Equity Securities are being
issued, delivered or otherwise distributed on the same terms and for the same
consideration to Persons that are not Affiliates or Related Persons of the
Company, the Current Market Price of such security shall be determined by the
opinion of a nationally recognized investment banking firm retained by the
Company, which opinion shall be delivered by the Company as soon as practicable
after its issuance or delivery to the Trustee.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Effective Date" means the date of this Indenture.
"Emergency Capital Infusion" means any Incurrence by the Company of
Subordinated Debt or any capital contribution to the Company, (i) the proceeds
of which are utilized by the Company or any Subsidiary of the Company solely to
cure an
-7-
existing default or prevent an imminent default on any Indebtedness secured
(directly or indirectly) by any interest in a Core Property or any other
Material Asset of the Company or such Subsidiary and (ii) as to which
transaction the Company shall have certified to the Trustee that, (a) in the
absence of such transaction the cash on hand then available to the Company and
its Subsidiaries (including any credit which may then be available under any
line of credit constituting Permitted Indebtedness) is insufficient to effect
such cure or prevent such imminent default and (b) the proceeds of such
transaction do not exceed by more than 10% the amount reasonably estimated by
the Company to be necessary to effect such cure or prevent such imminent
default.
"Equity Interests" means (a) Capital Stock, limited or general
partnership interests or units, interests in limited liability companies, joint
venture interests and other ownership interests in any Person, and (b) warrants,
options or other rights to acquire any of the above (including debt exchangeable
or convertible into any of the above).
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Excess Proceeds" means the Net Cash Proceeds of any Asset Sale that
are not used (or deemed to have been used) by the Company or the relevant
Subsidiary of the Company as provided in subsections (a), (b) or (c) of Section
4.10 of this Indenture within 180 days after receipt of same by the Company or
any Subsidiary of the Company.
"Exempt Subsidiary" means (a) any Significant Subsidiary that would
not be a Subsidiary if (i) it were not the record or beneficial owner, or the
operator or manager, of a Core Property referred to in clause (i) or (iv) of the
definition of Core Property, and (ii) it did not have any direct or indirect
interest in a Person that is the record or beneficial owner, or the operator or
manager, of a Core Property referred to in clause (i) or (iv) of the definition
of Core Property and (b) any Person referred to in subclause (ii)(x) or (ii)(y)
of this clause (b) if (i) by reason of a sale of an interest therein by the
Company or any of its Subsidiaries, the Company's direct and indirect Equity
Interest in any Core Property referred to in clause (ii), (iii), (v) or (vi) of
the definition of Core Property is less than 50% of the Company's direct or
indirect interest in such Core Property as of the date hereof and (ii) all
Persons (on a combined basis assuming that all of such Persons were required to
be included in the consolidated financial statements of the Company) in which
the Company has any direct or indirect interest which (x) are the record or
beneficial owner, or the operator or manager, of such Core Property, or (y) have
any direct or indirect interest in any Person that is the record or beneficial
owner, or the operator or manager, of such Core Property, would not (if
considered to be a single Subsidiary) be a Significant Subsidiary, as that term
is defined in Regulation S-X of the Securities Act of 1933, as in effect on the
date hereof.
"4% Holder" means any Holder which, if all Notes held by such Holder
were converted into Class A Interests immediately prior to the close of business
on the day immediately prior to the Tag-Along Notice Date, would, including any
Unrestricted
-8-
Units (as such term is defined in the Partnership Agreement as in effect on the
date hereof) as to which such Holder is a Record Holder (as such term is defined
in the Partnership Agreement as in effect on the date hereof), hold a number of
Class A Interests representing at least 4% of the Class A Interests then
outstanding.
"Full Payment Triggering Date" means the date upon which the Company
shall irrevocably deposit with the Paying Agent the purchase price for 100% of
the Notes in a Full Payment Triggering Offer.
"Full Payment Triggering Offer" means an offer by the Company to
purchase 100% of the then outstanding Notes pursuant to the terms and provisions
of Section 3.7 of this Indenture.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession.
"GP Subsidiary Owner" means, with respect to any Office Building
Property, any Subsidiary of the Company that (i) is a corporation, (ii) acts as
the general partner of the record or beneficial owner of such Office Building
Property and (iii) does not have any direct or indirect Equity Interest
exceeding 1.5% in the record or beneficial owner of such Office Building
Property.
"Holder" or "Noteholder" means a Person in whose name the Notes are
registered on the Register.
"Indebtedness" of any Person means, without duplication, (i) all
obligations of such Person for borrowed money or for the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business that are current liabilities in accordance with GAAP), (ii)
all obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (iii) all reimbursement obligations of such Person in respect of
letters of credit (whether or not such letters of credit have been drawn upon)
or bankers' acceptances, (iv) all Capital Lease Obligations of such Person, (v)
all Indebtedness of others guaranteed by such Person or for which such Person is
otherwise contingently liable, and (vi) all Indebtedness of others secured by a
Lien on any property of such Person, whether or not such Indebtedness is assumed
by such Person.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that, to the extent provided herein or required by the TIA, are deemed to be a
part hereof.
"Investment" means, when used with respect to any Person, any direct
or indirect advance, loan or other extension of credit (other than the creation
of receivables in the ordinary course of business) or capital contribution by
such Person (by means of transfers of cash or other property to others or
payments for property or services
-9-
for the account or use of others, or otherwise) to any other Person, or any
direct or indirect purchase or other acquisition by such Person of a beneficial
interest in Capital Stock, bonds, notes, debentures, Equity Interests or other
securities issued by any other Person.
"Lien" means, with respect to any property, any mortgage, pledge,
security interest, charge, hypothecation, collateral assignment, deposit
agreement, encumbrance, lien (statutory or otherwise), or security agreement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing and the filing of
any financing statement, other than notice filings not perfecting a security
interest, under the Uniform Commercial Code or comparable law of any
jurisdiction, domestic or foreign, in respect of any of the foregoing).
"Management Agreement" means any agreement that provides for or
otherwise permits the Company, any Subsidiary of the Company or any other
Affiliate of the Company that is controlled, directly or indirectly, by the
Company to receive any management or operating fee or leasing commission in
respect of services provided to or in respect of a Core Property or in respect
of any other real property having a value in excess of $20 million.
"Material Adverse Effect" means any material adverse effect on (a) the
business, condition (financial or otherwise), operations, properties or results
of operation of the Company or any Significant Subsidiary, either individually
or in the aggregate, (b) the rights and remedies of the Noteholders or the
Trustee hereunder or (c) the ability of the Company to perform its obligations
hereunder.
"Material Asset" means any asset of the Company or its Subsidiaries
having a fair market value (as determined in good faith by a Controlling Partner
of the Company) of at least $20,000,000.
"Net Cash Proceeds" means, with respect to any Asset Sale, the
proceeds of such Asset Sale in the form of Cash or Cash Equivalents, including
payments in respect of deferred payment obligations when received in the form of
Cash or Cash Equivalents, casualty loss insurance proceeds (to the extent not
applied to restore the affected property), condemnation awards (to the extent
not applied to restore the affected property), and proceeds from the conversion
of other property received in connection with any Asset Sale when converted to
Cash or Cash Equivalents, net of (i) brokerage commissions and all other
customary and reasonable fees and expenses directly related to such Asset Sale
actually paid by the seller of such asset(s), (ii) provision for all taxes paid
or payable directly as a result of such Asset Sale and, (iii) amounts to be
applied to the repayment of Indebtedness secured by a Lien on the asset or
assets that are the subject of such Asset Sale.
"New Property" means a Class A office building containing at least
400,000 square feet of gross floor area located in the United States or Canada.
"New Property Equity Interest" means Capital Stock, limited or general
partnership interests or units, interests in limited liability companies, joint
venture
-10-
interests and other ownership interests in any Person the principal assets of
which consist of one or more New Properties.
"Nonrecourse Debt" means Indebtedness of an Acquisition Subsidiary
that owns a New Property or New Property Equity Interests acquired in connection
with an Acquisition, provided that (i) such Acquisition Subsidiary shall at no
time have any assets which in the aggregate are material in respect of such
Acquisition Subsidiary other than the New Property or New Property Equity
Interests acquired in such Acquisition and assets used in connection with the
operation of such New Property, and (ii) neither the Company nor any Subsidiary
of the Company shall at any time as to such Indebtedness (a) provide credit
support of any kind (whether by undertaking, agreement or instrument
constituting Indebtedness or otherwise) or (b) be directly or indirectly liable
(as a guarantor, partner or otherwise); provided, however, that the foregoing
provisions of this definition shall not be construed to prohibit the Company or
any of its Subsidiaries from providing to any lender an environmental or similar
indemnity in customary form or from pledging, on a nonrecourse basis, shares of
a class of Capital Stock (which class of Capital Stock is entitled to elect one
director ) of the GP Subsidiary Owner with respect to such New Property.
"Nonrecourse Debt Refinancing Transaction" means any Incurrence of
Nonrecourse Debt by any Acquisition Subsidiary, the net proceeds of which are
used solely to Refinance Nonrecourse Debt of such Acquisition Subsidiary;
provided, however, that the principal amount of Nonrecourse Debt so Incurred
shall not exceed the sum of (i) the then outstanding principal amount, and any
prepayment premiums owing in respect, of the Nonrecourse Debt so Refinanced,
(ii) interest and accrued expenses owing in respect of the Nonrecourse Debt so
Refinanced, in each case accrued from the first day of the month in which such
refinancing occurs, and (iii) the amount of all reasonable and customary
transaction expenses actually incurred by the relevant Acquisition Subsidiary in
connection with such Nonrecourse Debt Refinancing Transaction.
"Notes" means the Increasing Rate Convertible Notes due 2004 of the
Company in the form of Exhibit A hereto issued under this Indenture in
accordance with Section 2.1.
"Noteholder" or "Holder" means a Person in whose name Notes are
registered on the Register.
"Office Building Property" means any Core Property or any New
Property.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be reasonably acceptable to the Trustee
and which opinion shall be reasonably satisfactory to the Trustee.
"Partnership Agreement" means the Amended and Restated Agreement of
Limited Partnership dated as of even date herewith by and among World Financial
Properties, Inc., JMB 000 Xxxx Xxxxxx Holding Company, LLC, Battery Park
Holdings Inc., Olympia & York Tower B Company, The Canadian Imperial Bank of
-11-
Commerce, WFP Holdings Limited Partnership, Emerald LP Holdings, Inc. and the
other persons and entities identified on Schedule I thereto.
"Partnership Interests" means the Class A Interests and any Equity
Interest into which such Class A Interests may be changed after the Effective
Date and any other Equity Interest of the Company (regardless of how
denominated) that has the right (subject to any prior rights of any other class,
type or form of Equity Interest) to participate in any distribution of the
assets or earnings of the Company without limit as to per unit of Equity
Interest amount, and shall also include Equity Interests of any successor or
acquiring Person referred to in Section 11.4(c) received by or distributed to
the holders of Equity Interests of the Company in the circumstances contemplated
by Section 11.4(c).
"Permitted Indebtedness" means Indebtedness of the Company that is
outstanding to provide working capital or other funds reasonably determined to
be necessary for the day to day operations of the Company and its Subsidiaries;
provided, however, that (i) such Indebtedness is not secured by any Lien, (ii)
the total principal amount of such Indebtedness outstanding at any time shall
not exceed $15 million, and (iii) for a period of at least 30 consecutive days
at any time during the immediately preceding 12 months, the aggregate
outstanding principal amount of Permitted Indebtedness shall be zero; and
provided further, that Permitted Indebtedness does not include any Indebtedness,
the proceeds of which are used (in whole or in part) to Refinance Nonrecourse
Debt or Subordinated Debt or for any purpose other than to provide working
capital or other funds necessary for the day to day operations of the Company
and its Subsidiaries.
"Person" means any individual, corporation, partnership, joint
venture, incorporated or unincorporated association, joint-stock company,
limited liability company, trust, unincorporated organization or government or
other agency or political subdivision thereof or other entity of any kind.
"Plan" means the Third Amended Joint Plan of Reorganization, dated
September 12, 1996.
"Record Date," when used with respect to any Interest Payment Date,
shall mean the fifteenth day of the month immediately preceding such Interest
Payment Date, whether or not such day is a Business Day.
"Redeemable Interests" means any partnership interests of the Company
that, by their terms (or by the terms of any security into which they are
convertible or for which they are exchangeable at the option of the holder
thereof), or upon the happening of any event, mature or are mandatorily
redeemable, in whole or in part, pursuant to a sinking fund obligation or
otherwise, or, at the option of the holder thereof, are redeemable in whole or
in part, or are exchangeable into a security that is owned by the Company or any
of its Subsidiaries or into Indebtedness of, or that is owned by, the Company or
any of its Subsidiaries, in each case on or prior to the scheduled maturity date
of the Notes.
-12-
"Redemption Date" or "redemption date" means the date specified for
redemption of a Note in accordance with the terms of the Notes and this
Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in Section 3.1.
"Refinancing Transaction" means any Incurrence of Indebtedness by the
Company or any Subsidiary of the Company, the net proceeds of which are used
solely to Refinance Indebtedness (other than Nonrecourse Debt or Subordinated
Debt) of the Company or any Subsidiary of the Company that is not an Acquisition
Subsidiary; provided, however, that (i) the principal amount of Indebtedness so
Incurred by the Company shall not exceed the sum of (a) the then outstanding
principal amount, and any prepayment premiums owing in respect, of the
Indebtedness of the Company that is Refinanced by the Indebtedness so Incurred
by the Company, (b) interest and accrued expenses owing in respect of the
Indebtedness of the Company that is so Refinanced, in each case accrued from the
first day of the month in which such refinancing occurs, and (c) the amount of
all reasonable and customary transaction expenses actually incurred by the
Company in connection with such Refinancing Transaction; and (ii) the principal
amount of Indebtedness so Incurred by the Company and its Subsidiaries shall not
exceed the sum of (a) the then outstanding principal amount, and any prepayment
premiums owing in respect, of the Indebtedness of the Company and its
Subsidiaries that is Refinanced by the Indebtedness so Incurred by the Company
and its Subsidiaries, (b) interest and accrued expenses owing in respect of the
Indebtedness of the Company and its Subsidiaries that is so Refinanced, in each
case accrued from the first day of the month in which such refinancing occurs,
and (c) the amount of all reasonable and customary transaction expenses actually
incurred by the Company and its Subsidiaries (other than any Acquisition
Subsidiary) in connection with such Refinancing Transaction; and, provided
further, that (x) all Indebtedness so Incurred ranks, relative to the Notes, no
more senior than the Indebtedness being Refinanced thereby and bears interest at
or below a market rate; (y) no Indebtedness so Incurred shall be secured by any
Lien on any property of the Company except (1) to the extent that there is a
Lien on such property as security for the Indebtedness being Refinanced and (2)
that Indebtedness secured by an Office Building Property may also be secured by
a nonrecourse pledge of shares of a class of Capital Stock (which class of
Capital Stock is entitled to elect one director) of the GP Subsidiary Owner with
respect to such Office Building Property, and (z) all Indebtedness so Incurred
shall have an Average Life not less than, and a stated maturity (including any
extensions available at the option of the Company) no earlier than, the Average
Life and stated maturity (including any extensions available at the option of
the Company), respectively, of the Indebtedness being Refinanced.
"Related Person" of any specified Person means (i) any Affiliate of
such Person (other than a Subsidiary of the Company), (ii) any Person that owns,
directly or indirectly, 20% or more of any then outstanding class, series or
type of Equity Interests (other than the Notes) of such Person, (iii) any Person
that owns, directly or indirectly, 10% of more of any then outstanding class,
series or type of Equity Interests of any Controlling Partner or of any other
Person that is a general partner of the Company, or (iv) any Affiliate of a
Person described in clause (i), (ii) or (iii) of this definition (other than a
Subsidiary of the Company).
-13-
"Securities Act" means the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the Commission thereunder.
"Significant Subsidiary" means any Subsidiary of the Company that (i)
is the record or beneficial owner, or the operator or manager, of any of the
Core Properties, (ii) owns, directly or indirectly, any Equity Interest in any
Person that is the record or beneficial owner, or the operator or manager, of
any of the Core Properties, or (iii) is a Significant Subsidiary, as that term
is defined under Regulation S-X of the Securities Act of 1933, as in effect on
the date hereof.
"Special Offer Purchase Price" for any Notes means a price equal to
100% of the principal amount of such Notes, plus accrued and unpaid interest to
the Special Offer Purchase Date.
"Stated Maturity Date," when used with respect to the Notes, means the
date specified in the Notes as the fixed date on which the principal amount of
the Notes is due and payable.
"Subordinated Debt" means Indebtedness of the Company that is not
secured by any Lien, is not guaranteed, directly or indirectly, by any
Subsidiary of the Company and is fully subordinated in right of payment
(including to post-petition interest, whether or not allowed in any bankruptcy
or similar proceeding) to all obligations of the Company under the Notes and
this Indenture, and, so long as any Notes are outstanding, as to which no
payment shall be required to be made or shall be made (including in respect of
principal, interest or any other amounts), and no rights or remedies may be
exercised by any holder of such Subordinated Debt until 91 days after the
earlier of (i) payment in full of the Notes or (ii) the Full Payment Triggering
Date; provided, that in either case no bankruptcy or similar proceeding shall
have been commenced by or against the Company during such 91 day period.
"Subordinated Debt Refinancing Transaction" means any Incurrence of
Subordinated Debt by the Company, the net proceeds of which are used solely to
Refinance Subordinated Debt; provided, however, that the principal amount of
Subordinated Debt so Incurred shall not exceed the sum of (i) the then
outstanding principal amount, and prepayment premiums owing in respect, of the
Subordinated Debt so Refinanced, (ii) interest and accrued expenses owing in
respect of such Subordinated Debt, in each case accrued from the first day of
the month in which such refinancing occurs, and (iii) the amount of all
reasonable and customary transaction expenses actually incurred by the Company
in connection with such Subordinated Debt Refinancing Transaction.
"Subsidiary" of any Person means any Person of which more than 50% of
the total voting power of shares of Capital Stock or other Equity Interests then
entitled (without regard to the occurrence of any contingency) to vote generally
in the election of directors, managers, trustees or general or managing partner
thereof or the right or power to direct the management or policies thereof
(through control of the relevant general partner, by contract or otherwise) is
at the time owned, controlled or otherwise possessed, directly or indirectly, by
such Person or one or more of the other Subsidiaries of
-14-
such Person or any combination thereof. Notwithstanding the foregoing, the
Subsidiaries of the Company shall include each Person in which the Company owns
directly or indirectly any Equity Interest, but only if such Person (i) is the
record or beneficial owner, or the operator or manager, of any of the Core
Properties, or (ii) owns directly or indirectly any Equity Interest in any
Person that is the record or beneficial owner, or the operator or manager, of
any of the Core Properties; provided, however, that, for purposes of the
provisions of Article 4 hereof, no Person that is not then an Affiliate that is
directly or indirectly controlled by the Company shall be deemed to be a
Subsidiary of the Company by reason of the provisions of this sentence.
"Subsidiary Owner" means, with respect to any Office Building
Property, a Subsidiary of the Company that is the record or beneficial owner of,
or that owns, directly or indirectly, any Equity Interest in the record or
beneficial owner of, such Office Building Property.
"Tax Advance" means an advance to be made by the Company to a claims
reserve established in accordance with Section 20 of the Plan in the event that
such reserve does not have sufficient Cash to pay required taxes.
"TIA" means the Trust Indenture Act of 1939, as amended and as in
effect on the date of this Indenture; provided, however, that in the event the
TIA is amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"TIAA" means Teachers Insurance and Annuity Association of America.
"TIAA Note" means the Promissory Note due _____, 1999 of [New Tower A
LP] issued to TIAA, in the original principal amount of $3 million.
"Trust Officer," when used with respect to the Trustee, means any vice
president, any assistant vice president, any assistant secretary, any assistant
treasurer, any trust officer or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor.
"Wholly Owned Subsidiary" means any Subsidiary of the Company, all of
the outstanding Capital Stock and other Equity Interests of which is owned by
the Company (either directly or indirectly through Wholly Owned Subsidiaries).
"Withholding Advances" means amounts paid by the Company, on behalf of
a partner in the Company or an assignee of an Equity Interest in the Company, in
-15-
respect of any amount that the Company determines in its reasonable judgment is
required to be withheld under applicable law in connection with the interest of
such partner in the Company or its assignee, which amounts have not been paid or
otherwise satisfied (including by way of withholding, offset or deduction
against the interest of such partner or assignee) by such partner or assignee.
SECTION 1.2. Other Definitions.
Defined
Term in Section
"Acceleration Notice"................................... 6.2
"Act"................................................... 1.5
"Capital Infusion Offer"................................ 4.17
"Change in Control Offer"............................... 4.9
"Commission Reports".................................... 4.2
"Conversion Date"....................................... 11.2
"Conversion Price"...................................... 11.1
"Covenant Defeasance"................................... 8.4
"Defaulted Interest".................................... 2.12
"Event of Default"...................................... 6.1
"Excess Proceeds Offer"................................. 4.10
"Group"................................................. 4.19
"Incur" ................................................ 4.7
"Interest Payment Date"................................. 2.1
"Legal Defeasance"...................................... 8.3
"Legal Holiday"......................................... 10.8
"Majority Interest"..................................... 4.19
"Majority Tag-Along Sale"............................... 4.19
"Original Sale Percentage".............................. 4.19
"Paying Agent".......................................... 2.3
"Qualifying Interest"................................... 4.19
"Qualifying Tag-Along Sale"............................. 4.19
"Redemption Price"...................................... 3.1
"Refinance"............................................. 4.7
"Refinancing Indebtedness".............................. 4.7
"Register".............................................. 2.3
"Registrar"............................................. 2.3
"Special Offer"......................................... 3.7
"Special Offer Amount".................................. 3.7
"Special Offer Payment Date"............................ 3.7
"Special Offer Triggering Event"........................ 3.7
"Subordinated Debt Refinancing Indebtedness"............ 4.7
"Surviving Entity"...................................... 5.1
"Tag-Along Notice"...................................... 4.19
"Tag-Along Notice Date"................................. 4.19
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"Tag-Along Purchaser"................................... 4.19
"Tag-Along Sale"........................................ 4.19
"Tag-Along Sale Date"................................... 4.19
"Tag-Along Sale Notice"................................. 4.19
"Tag-Along Sale Percentage"............................. 4.19
"Tag-Along Sellers"..................................... 4.19
"Wholly Owned Affiliate"................................ 4.19
SECTION 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, such provision is, to
the extent required by the TIA, incorporated by reference in and made a part of
this Indenture. To the extent required by the TIA, all TIA terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another
statute or defined by Commission rule have the meanings assigned to them by such
definitions.
SECTION 1.4. Rules of Construction. Unless the context otherwise
requires:
(1) A term has the meaning assigned to it herein, whether defined
expressly or by reference;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including, without limitation;
(5) words in the singular include the plural, and words in the plural
include the singular; and
(6) "herein," "hereof" and other words of similar nature refer to this
Indenture as a whole and not to any particular or individual article, section or
part of an article or section (unless the context clearly otherwise requires).
SECTION 1.5. Acts of Holders.
(1) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing, in which instruments such Holders shall certify as to
whether they are Affiliates of the Company; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such
-17-
agent shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company if made in the manner provided in this
Section.
(2) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee reasonably
deems sufficient.
(3) The ownership of the Notes shall be proved by the Register as of
the record date for such action.
(4) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other act, the Company may,
at its option, by or pursuant to resolutions of its Controlling Partners, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of the Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act; provided
that no such authorization, agreement or consent by the Holders on such record
date shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture or such authorization, agreement or consent not
later than six months after the record date.
(5) In connection with every Act of Holders and otherwise as
reasonably requested by the Trustee (but in any case no less frequently than
semi-annually), the Company shall be required to deliver a CP Certificate which
identifies each Note (or portion thereof) held of record or beneficially by or
for each Affiliate of the Company or any Subsidiary of the Company (as of the
relevant record date, if any). For all purposes hereunder, Notes held in the
Subclass 7.11.1 Disputed Claims Debt/Equity Escrow (as defined in the Plan) and
all other Notes held by the Disbursing Agent (as defined in the Plan), including
in its capacity as escrow agent, shall be deemed to be held by an Affiliate of
the Company.
ARTICLE 2.
THE NOTES
SECTION 2.1. Form and Dating. The Notes and the Trustee's certificate
of authentication thereon shall be substantially in the form of Exhibit A
hereto. The Notes may have notations, legends or endorsements required by law,
stock exchange rules or agreements to which the Company is subject, if any. The
Company shall approve the form of the Notes and any notation, legend or
endorsement thereon, and such approval shall be evidenced by the execution of
such Notes by a Controlling Partner. The Notes shall be dated the date of their
authentication. The Notes shall bear interest from the earlier of the Effective
Date and December 1, 1996 at the rate per annum provided therein, payable
quarterly on February 1,
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May 1, August 1 and November 1 of each year, commencing with the first such date
after the Effective Date (each such date, an "Interest Payment Date"), shall
mature on May 1, 2004, and shall be issuable as registered Notes without coupons
in denominations of $1,000 and any integral multiple thereof.
The terms and provisions contained in the form of the Notes, annexed
hereto as Exhibit A, shall constitute, and are hereby expressly made, a part of
this Indenture. To the extent applicable, the Company and the Trustee by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.2. Execution and Authentication; Aggregate Principal Amount.
Two officers of a Controlling Partner shall sign the Notes for the Company by
facsimile or manual signature. The Controlling Partner's corporate seal, if any,
may be reproduced or imprinted on the Notes.
If a Person whose signature is on the Notes no longer holds that
office or position at the relevant Controlling Partner at the time the Trustee
authenticates the Notes, the Notes shall nevertheless be valid. In addition, if
a Person does not hold an office or position at the time the Notes are
authenticated, but holds such office or position on or prior to the delivery of
the Notes, the Notes shall nevertheless be valid. If the Controlling Partner
whose officers signed the Notes for the Company is no longer a Controlling
Partner at the time the Trustee authenticates the Notes, the Notes shall
nevertheless be valid.
The Notes shall not be valid until the Trustee manually signs the
certificate of authentication on the Notes. The Trustee's signature shall be
conclusive evidence that the Notes have been authenticated under this Indenture.
The Trustee shall authenticate for original issuance up to $__________
in aggregate principal amount of Notes upon receipt of (i) a written order of
the Company signed by two officers of a Controlling Partner and (ii) an Opinion
of Counsel addressed to the Trustee and the Noteholders in substantially the
form attached hereto as Exhibit B. The written order shall specify the amount of
the Notes to be authenticated, the date on which the Notes are to be
authenticated, the names, addresses and denominations in which the Notes shall
be registered and to whom the Notes shall be delivered. The aggregate principal
amount of the Notes outstanding at any time under this Indenture may not exceed
$__________ , except as provided in Section 2.7 of this Indenture.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate the Notes, which authenticating agent shall be
compensated by the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate the Notes whenever the Trustee may do so.
Except as provided in the preceding sentence, each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Agent to deal with the Company
or any Affiliate of the Company.
SECTION 2.3. Registrar and Paying Agent. The Company shall maintain an
office or agency within the City of New York, Borough of Manhattan, where the
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Notes may be presented for registration of transfer or for exchange
("Registrar") and an office or agency where the Notes may be presented for
payment ("Paying Agent"). Unless otherwise designated by the Company, the
Company's office or agency maintained for such purposes in the City of New York,
Borough of Manhattan, will be the office of the Trustee. The Notes will be
payable both as to principal and interest at the office of the Paying Agent, or,
at the option of the Company, payment of interest may be made by check mailed to
the Holders of the Notes at their respective addresses set forth in the
Register; provided, however, that upon the written request of any Holder that
holds at least $250,000 in aggregate outstanding principal amount of Notes, and
notwithstanding anything contained in this Indenture or in the Notes to the
contrary, the Company shall pay all amounts from time to time becoming due on or
in respect of such Notes by wire transfer or other commercially reasonable
method specified in such written request and at the address specified for such
purpose in such written request, or by wire transfer or other commercially
reasonable method and at such other address as such Holder may from time to time
specify to the Company in writing for such purpose; provided, further that, in
the case of all payments other than interest, such Notes must first be
surrendered as a condition to the right to receive payment. The Registrar shall
keep a register of the Notes, the names and addresses of the Noteholders and of
the transfer and exchange of the Notes (the "Register"). The Company may have
one or more additional Paying Agents. The term "Paying Agent" includes any
additional Paying Agent. Notwithstanding anything to the contrary contained
herein, neither the Company nor any Subsidiary or Affiliate of the Company may
serve as the Paying Agent.
The Company shall enter into an appropriate written agency agreement
with any Agent not a party to this Indenture. Each such agreement shall
implement the provisions of this Indenture that relate to such Agent and shall
incorporate the provisions of the TIA. The Company shall give prompt written
notice to the Trustee and the Holders of the name and address of any such Agent
and any change in the address of such Agent. The Company may change an Agent
without prior notice to the Holders. If the Company fails to maintain a
Registrar or Paying Agent, the Trustee shall act as such and shall be entitled
to receive appropriate compensation therefor in accordance with Section 7.7 of
this Indenture.
The Company initially appoints the Trustee to act as Conversion Agent,
Registrar and Paying Agent.
SECTION 2.4. Paying Agent To Hold Money in Trust. The Company shall
require each Paying Agent other than the Trustee to agree in writing that such
Paying Agent shall hold in trust in immediately available funds for the benefit
of Noteholders all money held by the Paying Agent for the payment of principal,
premium, if any, or interest on the Notes, and such Paying Agent shall notify
the Trustee in writing of any default by the Company in making any such payment.
The Company at any time may require a Paying Agent to pay all money held by it
as Paying Agent to the Trustee and account for any funds disbursed, and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to pay all money
held by it as Paying Agent to the Trustee and to account for any funds
disbursed. Upon doing so, the Paying Agent shall have no further liability for
the money so paid over to the Trustee.
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SECTION 2.5. Noteholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Noteholders and shall otherwise comply with the
provisions of TIA ss. 312(a). If the Trustee is not the Registrar, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of the Noteholders, and the Company shall otherwise
comply with the provisions of TIA ss. 312(a).
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or another Paying Agent, as the case may be, as to the
names and addresses of the Noteholders and the principal amount of the Notes.
SECTION 2.6. Transfer and Exchange.
(a) Transfer and Exchange of the Notes. The transfer and exchange of
the Notes shall be in accordance with this Indenture.
(b) General Provisions Relating to Transfers and Exchanges of the
Notes.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the
Company's request in accordance with the provisions of Section
2.2 hereof.
(ii) No service charge shall be made to a Holder for any registration
of transfer or exchange, but the Company may require from the
Holder payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge
payable upon exchanges, which shall be paid by the Company).
(iii) All Notes issued upon any registration of transfer or exchange
of the Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Notes surrendered upon such registration
of transfer or exchange.
(iv) Prior to due presentment for the registration of a transfer of
the Notes, the Trustee, any Agent and the Company may deem and
treat the Person in whose name the Notes are registered as the
absolute owner of the Notes for the purpose of receiving payment
of principal of, interest on, and premium, if any, on the Notes
and neither the Trustee, any Agent nor the Company shall be
affected by notice to the contrary.
SECTION 2.7. Replacement Notes. If a mutilated Note is surrendered to
the Trustee or if the Company and the Trustee receive evidence to their
satisfaction that a Note has been lost, destroyed or wrongfully taken, the
Company shall issue a replacement Note, and the Trustee shall authenticate such
replacement Note if the Trustee's requirements
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are met. If required by the Trustee or the Company, an indemnity bond shall be
provided by the Noteholder that is sufficient in the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss which any of them may suffer if the Note is
replaced. The Company and the Trustee may charge such Holder for their expenses
in replacing the Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.8. Outstanding Notes. Notes outstanding at any time are all
Notes that have been authenticated by the Trustee, except for those cancelled by
it, those delivered to it for cancellation and those described in this Section
2.8 as not outstanding. Notwithstanding anything to the contrary contained in
this Indenture (except as set forth in Section 2.9 hereof), neither the Company
nor any Affiliate of the Company shall be counted in respect of any Acts of
Holders or for purposes of determining whether Holders of the requisite portion
of Notes have authorized or agreed or consented to a request, direction, notice,
consent or waiver, or denied authorization with respect to any matter requiring
the agreement, consent, authorization or waiver of the Holders and all Notes
held by the Company or any Affiliate of the Company shall be deemed not to be
issued and not to be outstanding for purposes thereof. Except as specifically
provided herein, such Notes do not cease to be outstanding for other purposes
under this Indenture solely because an Affiliate of the Company owns the Notes
of record or beneficially.
If any Note is replaced pursuant to Section 2.7, such Note shall cease
to be outstanding as of the date it is replaced, unless the Trustee receives
proof satisfactory to it that the replaced Note is held by a bona fide
purchaser.
If the principal of, interest on, or Defaulted Interest, if any, or
premium, if any, on any Notes is considered paid under Section 4.1 hereof, such
amount shall cease to be outstanding, and any interest on such amount ceases to
accrue as of the date of such payment.
If any Note is redeemed, repurchased or converted, the principal
amount of such Note so redeemed, repurchased or converted shall cease to be
outstanding and interest thereon shall cease to accrue as of the date of such
payment.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a Redemption Date or Stated Maturity Date, money sufficient,
in immediately available funds, to pay all principal of, interest on and
premium, if any, payable on that date with respect to the Notes (or the portion
thereof to be redeemed or maturing, as the case may be), then on and after that
date such Notes (or portions thereof) shall no longer be deemed to be
outstanding and shall cease to accrue interest.
Upon a "Legal Defeasance" pursuant to Article 8, the Notes shall be
deemed to be outstanding to the extent provided in the applicable Section of
Article 8 hereof.
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SECTION 2.9. Treasury Notes. In determining whether the Holders of the
required principal amount of the Notes have concurred in any Act of Holders,
request, demand, authorization, direction, notice, waiver, consent or other
action, record and beneficial interests in the Notes owned by the Company or any
Affiliate of the Company and the voting rights related to such beneficial
interests in the Notes shall be disregarded, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only interests in the Notes that are listed as so
owned in the CP Certificate required to be delivered pursuant hereto shall be so
disregarded.
SECTION 2.10. Temporary Notes. Until definitive Notes are ready for
delivery, the Company may prepare, and the Trustee shall authenticate, upon
written order of the Company signed by two officers of a Controlling Partner,
temporary Notes. Temporary Notes shall be substantially in the form of
definitive Notes but may have variations that the Company reasonably considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare, and the Trustee shall authenticate, definitive Notes in exchange for
temporary Notes.
Until such exchange, such temporary Notes shall be entitled to the
same rights, benefits and privileges as definitive Notes.
SECTION 2.11. Cancellation. The Company at any time may deliver Notes
to the Trustee for cancellation. The Conversion Agent, Registrar and the Paying
Agent shall forward to the Trustee any Notes surrendered to them for conversion,
registration of transfer, exchange or payment. The Trustee and no one else shall
cancel all Notes surrendered for registration of transfer, exchange, payment,
conversion or cancellation and the Trustee shall dispose of such Notes as
directed in writing by the Company. The Company may not issue new Notes to
replace Notes it has paid for or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment
of interest on the Notes, it shall pay the defaulted interest in U.S. dollars in
immediately available funds, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the Persons who are Noteholders on a
subsequent special record date, in each case at the rate provided in the Notes
("Defaulted Interest"). Such special record date shall be the tenth day next
preceding the date fixed by the Company for the payment of Defaulted Interest,
whether or not such special record date is a Business Day. At least 15 days
before the special record date, the Company shall mail or cause to be mailed to
each Noteholder and the Trustee a notice that states the special record date,
the payment date and the amount of Defaulted Interest to be paid.
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ARTICLE 3.
REDEMPTION
SECTION 3.1. Optional Right to Redeem; Notices to Trustee.
(a) At any time on or after the date hereof to and including the
second anniversary of the Effective Date, the Company, at its option, may redeem
the Notes in whole or in part for Cash in accordance with this Section 3.1, at a
redemption price equal to 100% of the principal amount thereof outstanding at
the Redemption Date, plus accrued and unpaid interest to the Redemption Date
(the "Redemption Price"). Immediately following the close of business on the
second anniversary of the Effective Date, this right to redeem Notes shall
terminate and the Company shall have no other optional redemption rights.
(b) If the Company elects to redeem the Notes in whole or in part
pursuant to this Article 3, it shall notify the Trustee in writing of its
election to redeem the Notes, at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) and shall deliver
to the Trustee a CP Certificate setting forth the Redemption Date, the principal
amount of Notes to be redeemed and the Redemption Price.
SECTION 3.2. Selection of the Notes or Portions Thereof to be
Redeemed. If less than all of the Notes are to be redeemed at any time, the
Trustee shall select the portions of the Note to be redeemed by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of Notes of a denomination
larger than $1,000. The Trustee shall make the selection at least 35 but not
more than 65 days before the Redemption Date from the Notes not previously
called for redemption. The Notes and portions thereof so selected for redemption
by the Trustee shall be in principal amounts of $1,000 or an integral multiple
of $1,000. Provisions of this Indenture that apply to the Notes called for
redemption also apply to portions of the Notes called for redemption. The
Trustee shall notify the Company promptly in writing which Notes or portions of
the Notes are to be redeemed and, in the case of Notes selected for partial
redemption, the principal amount thereof to be redeemed.
SECTION 3.3. Notice of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail or cause to be mailed a
notice of redemption by first-class mail, postage prepaid, to Holders of the
Notes at the Holders' last addresses, as they shall appear on the Register. A
copy of such notice shall be mailed to the Trustee on the same day the notice is
mailed to Holders unless, pursuant to the Company's request made under the
provisions of this Section 3.3 below, the Trustee mails such notice to the
Holders on behalf of the Company.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the name and address of the Paying Agent;
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(4) if a Note is being redeemed in part, the portion of the principal
amount of the Note to be redeemed and that on and after the Redemption Date,
upon surrender of the Note, a new Note or Notes in principal amount equal to the
unredeemed portion will be issued;
(5) that Notes called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(6) that unless the Company defaults in making the redemption payment,
interest will cease to accrue on the Notes or portions thereof called for
redemption on and after the Redemption Date;
(7) the Conversion Price then in effect, that the Notes may be
converted pursuant to the provisions of Article 11 hereof at any time prior to
the close of business on the Redemption Date and that the conversion right will
expire in respect of the Notes or portions thereof called for redemption upon
the close of business on the Redemption Date unless the Company defaults in
making the redemption payment.
At the Company's written request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense within 15 days of
such request; provided, however, that (i) in all cases, the text of such notice
of redemption shall be prepared or approved by the Company and the Trustee shall
have no responsibility whatsoever with regard to such notice being accurate or
correct (except for the selection of the portions of the Notes for redemption
pursuant to Section 3.2) and (ii) notice containing such request shall be
accompanied by a CP Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice.
SECTION 3.4. Effect of Notice of Redemption. Once notice of redemption
is given, Notes or portions thereof called for redemption become due and payable
on the Redemption Date and at the Redemption Price. Upon the later of the
Redemption Date and the date the Notes or portions thereof are surrendered to
the Paying Agent, the Notes or portions thereof called for redemption shall be
paid at the Redemption Price, if money in immediately available funds sufficient
for that purpose has been deposited as provided in Section 3.5 hereof. If a
Redemption Date is on an Interest Payment Date and after the related Record Date
for such Interest Payment Date, any interest accrued and unpaid to the
Redemption Date shall be paid on such Interest Payment Date to the Person in
whose name the Notes are registered at the close of business on such Record Date
and the only remaining right of the Holder of the Notes or portions thereof
called for redemption shall be to receive the Redemption Price, excluding all
accrued interest thereon, upon surrender of such Notes to the Paying Agent.
Notice of redemption shall be deemed to be given when mailed by first
class mail to each Holder at its latest registered address, whether or not any
such Holder receives the notice.
SECTION 3.5. Deposit of Redemption Price. On or prior to the
Redemption Date, the Company shall irrevocably deposit with the Paying Agent in
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immediately available funds money sufficient to pay the Redemption Price of the
Notes or portions thereof to be redeemed on that date other than portions of the
Notes called for redemption which prior thereto have been delivered by the
Company to the Trustee for cancellation or delivered to the Trustee by the
Holder thereof for conversion pursuant to Article 11 hereof. If any Note called
for redemption is converted pursuant hereto, any money deposited with the
Trustee or any Paying Agent for the Redemption Price of such Note shall be paid
to the Company upon the Company's written request. The Paying Agent shall return
to the Company any money deposited with the Paying Agent by the Company in
excess of the amounts necessary to pay the Redemption Price of, and accrued
interest on, all Notes or portions thereof to be redeemed.
If the Company complies with the preceding paragraph, interest on the
Notes or portions thereof to be redeemed, whether or not the Notes are presented
for payment, will cease to accrue on the applicable Redemption Date. If any Note
called for redemption is not paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the
Redemption Date and such Note shall remain convertible until the principal of
such Note and accrued interest shall have been paid or duly provided for.
SECTION 3.6. Notes Redeemed in Part. Upon surrender of the Notes that
are redeemed in part, the Company shall issue, and the Trustee shall
authenticate and make available for delivery to the Holder, new Notes in an
authorized denomination equal in principal amount to the unredeemed portion of
the Notes surrendered.
SECTION 3.7. Special Procedures for Change in Control Offer, Excess
Proceeds Offer and Capital Infusion Offer. The following provisions shall apply
notwithstanding any other provision of this Article 3:
Within 30 days following any Change in Control or the occurrence of an
event upon the happening of which the Company is hereunder required to make an
Excess Proceeds Offer or a Capital Infusion Offer (any such event or Change in
Control hereinafter referred to as a "Special Offer Triggering Event"), the
Company shall mail, by first class mail, to each Holder at its last registered
address, with a copy to the Trustee, a notice, which shall govern the relevant
Change in Control Offer, Excess Proceeds Offer or Capital Infusion Offer (each
one of which is hereinafter referred to as a "Special Offer"), containing all
instructions and materials necessary to enable the Holders to tender the Notes
or portions thereof pursuant to the Special Offer, and shall state:
(i) that the Special Offer is being made pursuant to Section 4.9,
4.10 or 4.17, as applicable, and, in the case of a Change in
Control Offer, that all issued and outstanding Notes duly and
validly tendered and not subsequently withdrawn (in compliance
with the provisions of clause (vi) below) will be accepted for
payment and paid for by the Company or, in the case of an Excess
Proceeds Offer or a Capital Infusion Offer, the amount of the
Excess Proceeds or Capital Infusion, as applicable, to be applied
to the purchase of Notes (the "Special Offer Amount") pursuant to
such Excess Proceeds Offer or such Capital Infusion Offer and the
aggregate principal amount of Notes then outstanding;
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(ii) the Special Offer Purchase Price in such Special Offer and the
purchase date (the "Special Offer Payment Date"), which date
shall not be less than 21 Business Days nor more than 31 Business
Days following the date such notice is mailed, provided that the
Special Offer Payment Date shall in no event be later than 60
days (or up to an additional 30 days to the extent required by
applicable law) after the Special Offer Triggering Event;
(iii) that the Notes or portions thereof not tendered (or which are
tendered but subsequently withdrawn by the Holder prior to
acceptance for payment by the Company or, in the case of an
Excess Proceeds Offer or a Capital Infusion Offer, not accepted
for payment by reason of the proration provisions of such Offer)
will continue to accrue interest and shall continue to be
governed by the terms of this Indenture in all respects;
(iv) that, unless the Company defaults in the payment thereon, the
Notes or portions thereof that are tendered and not timely
withdrawn by Holders and accepted for payment pursuant to the
Special Offer will cease to accrue interest from and after the
Special Offer Payment Date;
(v) that Holders electing to have the Notes (or portions thereof)
purchased pursuant to a Special Offer will be required to
surrender the Notes, accompanied by such customary documents of
surrender and transfer as the Company or the Trustee reasonably
may request, duly completed, to the Trustee at the address of the
Trustee specified in the notice of the Special Offer prior to the
close of business on the Business Day immediately preceding the
Special Offer Payment Date;
(vi) a Holder will be entitled to withdraw or modify its election if
the Trustee receives at the address or facsimile number, as
applicable, of the Trustee specified in the notice of the Special
Offer, not later than the close of business on the Business Day
immediately preceding the Special Offer Payment Date, a facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of the Notes (or portions thereof) such Holder
delivered for purchase, and a statement that such Holder is
withdrawing or modifying its election to have all or part of such
Notes (or portions thereof) purchased;
(vii) that a Holder whose Notes are purchased only in part will be
issued new Notes in a principal amount equal to the unpurchased
portion of the Notes surrendered, provided that the Notes or
portions thereof purchased and each of such new Notes issued
shall be in a principal amount of $1,000 or an integral multiple
thereof;
(viii) in the case of a Change in Control Offer, the circumstances and
material facts regarding the Change in Control, including but not
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limited to information with respect to the historical
consolidated and combined financial information of the Company
and its Subsidiaries and pro forma consolidated and combined
financial information (other than projections) of the Company and
its Subsidiaries after giving pro forma effect to the Change in
Control, information regarding any Person or Persons acquiring
control, to the extent reasonably available, and the business
plans of such Person or Persons with respect to the Company, to
the extent reasonably available;
(ix) in the case of an Excess Proceeds Offer or a Capital Infusion
Offer, that if the Notes (or portions thereof) in an aggregate
principal amount exceeding the Special Offer Amount, as
applicable, are duly surrendered (and not withdrawn in compliance
with the provisions of clause (vi) above), the Company shall
purchase Notes on a pro rata basis (with such adjustments as may
be deemed appropriate by the Company so that Notes shall be
purchased only in principal amounts of $1,000 or integral
multiples thereof);
(x) the Conversion Price then in effect, the number of Class A
Interests into which the Notes may then be converted, that the
Notes may be converted pursuant to the provisions of Article 11
hereof at any time and that such conversion right will expire
with respect to the Notes (or the portion thereof) duly
surrendered (and not withdrawn in compliance with the provisions
of clause (vi) above) and accepted for payment by the Company
unless the Company defaults in the payment of the Special Offer
Purchase Price; and
(xi) in the case of a Special Offer that constitutes a Full Payment
Triggering Offer (whether pursuant to a Change in Control Offer
or otherwise), that from and after the Full Payment Triggering
Date relating thereto, the Company shall no longer be required to
comply with any of the covenants contained in Section 4.6
(Limitation on Restricted Payments), Section 4.7 (Limitation on
Additional Indebtedness), Section 4.10 (Asset Sales), Section
4.17 (Capital Infusion Offer) or Section 4.21 (Limitations on
Subsidiary Owners).
On or before the Special Offer Payment Date, the Company shall (i)
deposit with the Trustee or the Paying Agent immediately available funds
sufficient to pay the Special Offer Purchase Price of the Notes or portions
thereof accepted for payment, (ii) deliver or cause to be delivered to the
Trustee a CP Certificate specifying the Notes or portions thereof accepted for
payment, respectively, and (iii) accept for payment the Notes or portions
thereof tendered and not theretofore withdrawn, pursuant to the Special Offer,
except that, in the case of an Excess Proceeds Offer or Capital Infusion Offer,
the principal amount of the Notes accepted for payment need not exceed the
Special Offer Amount. The Trustee shall promptly mail to each Holder of the
Notes so tendered payment in an amount equal to the Special Offer Purchase Price
for such Notes or portions thereof accepted for payment, respectively, and, and
with respect to the Notes accepted for payment in part the
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Company shall issue and the Trustee shall promptly authenticate and mail to such
Holder one or more certificates evidencing new Notes equal in principal amount
to any unpurchased portion of the Notes surrendered. The Notes or portions
thereof purchased pursuant to a Special Offer will be cancelled by the Trustee.
The Company will publicly announce (or cause to be mailed to all Holders at
their last addresses as they shall appear in the Register a written notice
setting forth) the results of any Special Offer on or as soon as practicable
after the Special Offer Payment Date.
ARTICLE 4.
COVENANTS
SECTION 4.1. Payment of Principal, Premium and Interest.
The Company shall pay the principal of, interest on, and premium, if
any, on the Notes on (or prior to) the dates and in the manner provided in the
Notes or pursuant to this Indenture. An installment of principal, premium, if
any, or interest shall be considered paid on the applicable date due, if on such
date the Trustee or the Paying Agent holds, in accordance with this Indenture,
money, in immediately available funds, sufficient to pay all of such installment
then due no later than 12:00 noon on such date. The Company shall pay interest
on overdue principal and premium, if any, and, to the extent permitted by
applicable law, interest on overdue installments of interest (in each case,
including interest accruing on or after the commencement of a bankruptcy or
reorganization proceeding relating to the Company or the filing of a petition
relating to the same, whether or not a claim for such interest is allowed or
allowable in such proceeding), to the extent lawful, at the rate per annum borne
by the Notes plus 2%, which interest on overdue interest and/or principal shall
accrue from the date such amounts became overdue.
SECTION 4.2. Provision of Reports and Other Information.
(a) So long as any Notes remain outstanding, the Company shall cause
copies of all quarterly and annual reports and of the information, documents and
other reports which the Company is required to file with the Commission pursuant
to Section 13(a) or 15(d) of the Exchange Act ("Commission Reports") to be
delivered to the Trustee and mailed to the Holders at their addresses appearing
in the Register, in each case, within 5 days of filing with the Commission. If
for any reason the Company is not subject to the requirements of Section 13(a)
or 15(d) of the Exchange Act or shall cease to be required by the Commission to
file Commission Reports, the Company shall prepare and file with the Trustee and
mail to the Holders at their addresses appearing in the Register:
(i) not later than 45 days after the close of each of the
first three fiscal quarters of each fiscal year of the Company, a
report containing substantially the same information as is required to
be included in a report on Form 10-Q promulgated by the Commission
pursuant to the Exchange Act; and
(ii) not later than 120 days after the close of each fiscal
year of the Company, a report containing substantially the same
information as is required to be included in
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a report on Form 10-K promulgated by the Commission pursuant to the
Exchange Act;
provided, however, that in respect of the foregoing reports (a) the form of
financial statements included therein need not comply with the provisions of
Regulation S-X (but shall nevertheless be prepared in accordance with GAAP), (b)
the Company need not include any pro forma financial statements for periods
prior to the Effective Date, (c) no reporting of the matters contemplated in
Item 402 of Regulation S-K shall be required, except that there shall be
included a reasonably detailed description of the compensation from the Company
and its Subsidiaries of the five highest paid executive officers of the Company
and of all executive officers of the Company as a group, (d) substantially the
same information that would otherwise have been required to be included in a
Form 8-K if the Company were required to file Commission Reports shall be
included in the next report referred to in clause (i) or (ii) above, (e) such
reports shall include exhibit lists listing the same exhibits as are required to
be listed in a report on Form 8-K, Form 10-Q or Form 10-K, as the case may be,
and (f) any Noteholder shall be entitled to obtain from the Company a copy of
any exhibit so listed or required to be listed. For purposes of preparing and
providing Commission Reports that comply with rules and regulations issued by
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act, such
Commission Reports shall be prepared as if the Company were a "registrant"
within the meaning of Rule 12b-2 of the Exchange Act. The Company shall make all
such information available to investors who request it in writing. The Company
shall also comply with the provisions of TIA ss. 314(a).
(b) So long as any Notes remain outstanding, the Company shall cause
copies of all reports, information and notices (other than form K-1s and (to the
extent actually provided to Holders pursuant to Section 4.2) financial
statements provided to partners thereof) furnished to partners of the Company
generally to be delivered to the Trustee and mailed to the Holders at their
addresses appearing in the Register, in each case promptly after they are so
furnished.
(c) So long as any Notes remain outstanding, the Company shall, within
15 days after the making or adoption thereof, cause a copy of each amendment,
modification or waiver of or to the Partnership Agreement (as it may be amended
from time to time) to be delivered to the Trustee and mailed to the Holders at
their addresses appearing in the Register. At the request of any Holder or the
Trustee, the Company shall deliver to the Trustee and to such Holder at its
address appearing in the Register a true and complete copy of the Partnership
Agreement, as amended through the date of delivery thereof.
(d) So long as any Notes remain outstanding, the Company shall cause
notice of any proposed amendment, modification or waiver of or to the
Partnership Agreement referred to in the first or the second proviso to the
first sentence of Section 11.01(b) of the Partnership Agreement (as in effect on
the date hereof) to be mailed to the Holders at their addresses appearing in the
Register, in each case at least 15 days prior to the earlier of (i) any vote on
such amendment, modification or waiver or (ii) any record date for such vote.
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(e) So long as any Notes remain outstanding, the Company shall cause
to be delivered to the Trustee and mailed to Holders at their addresses
appearing in the Register, together with reports delivered pursuant to Section
4.2(a), a report identifying each Subsidiary of the Company that became an
Exempt Subsidiary during the relevant reporting period and each Subsidiary that
ceased to be an Exempt Subsidiary during such period. Such notice shall identify
the relevant Subsidiary and the date of such change in status.
(f) If the Company instructs the Trustee to distribute any of the
documents described in clause (a), (b), (c), (d) or (e) above to the
Noteholders, the Company shall provide the Trustee with a sufficient number of
copies of all such documents that the Company may be required to deliver to the
Noteholders under this Section 4.2.
SECTION 4.3. Compliance Certificates.
(a) The Company shall deliver to the Trustee and mail to the Holders
at their addresses appearing in the Register within 60 days after the end of
each fiscal quarter and 120 days after the end of each of the Company's fiscal
years (which as of the date hereof is the calendar year) a CP Certificate
stating whether or not the Company or any Controlling Partner knows of any
Default or Event of Default which occurred during such preceding fiscal period
or occurred in any other fiscal period and is continuing. Such certificate shall
contain a certification from each Controlling Partner as to its knowledge of the
Company's compliance with all conditions and covenants under this Indenture
during such preceding fiscal year and shall otherwise comply with TIA Section
314(a)(4). If a Controlling Partner knows of a Default or Event of Default, the
certificate shall describe any such Default or Event of Default, and its status.
(b) So long as it is not contrary to the then current recommendation
of the American Institute of Certified Public Accountants and so long as the
Company's accountants provide similar statements to other companies, the Company
shall deliver to the Trustee and mail to the Holders at their addresses
appearing in the Register within 120 days after the end of each fiscal year a
written statement by the Company's independent certified pubic accountants
stating (A) that their audit examination has included a review of the terms of
this Indenture and the Notes as they relate to accounting matters, and (B)
whether, in connection with their audit examination, any Default has come to
their attention and, if such a Default has come to their attention, specifying
the nature and period of the existence thereof; provided, however, that the
independent certified public accountants delivering such statement shall not be
liable in respect of such statement by reason of any failure to obtain knowledge
of any such Default or Event of Default that would not be disclosed in the
course of an audit examination conducted in accordance with GAAP. In the absence
of actual notice to the contrary, the Trustee shall be entitled to rely upon the
aforementioned statement of the Company's independent public accountants and
shall not be liable to anyone with respect thereto.
(c) The Company shall deliver to the Trustee and mail to the Holders
at their addresses appearing on the Register as soon as possible and in any
event within 10 Business Days after the Company or a Controlling Partner becomes
aware of the occurrence of a Default or Event of Default, which is continuing, a
CP Certificate setting forth the
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details of such Default or Event of Default, and the action which the Company
proposes to take with respect thereto.
(d) The Company shall deliver to the Trustee any information
reasonably requested by the Trustee in connection with the compliance by the
Trustee or the Company with the TIA.
SECTION 4.4. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.5. Maintenance of Office or Agency. The Company will
maintain or cause to be maintained, within the City of New York, Borough of
Manhattan, an office or agency (which may be an office of the Trustee, Registrar
or Paying Agent) where the Notes may be presented or surrendered for payment,
where the Notes may be surrendered for registration of transfer, exchange,
conversion or redemption and where notices and demands to or upon the Company in
respect of the Notes and this Indenture may be served. The corporate trust
office of the Trustee at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Department - Administration, shall initially be such
office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of any change of location of such office or
agency. If at any time the Company shall fail to maintain or cause to be
maintained any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
10.2 hereof.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that any such designation or rescission shall not in any manner relieve
the Company of its obligation to maintain an office or agency within the City of
New York, Borough of Manhattan. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in location
of any such other office or agency.
SECTION 4.6. Limitation on Restricted Payments. Until the Full Payment
Triggering Date, the Company shall not, and shall not permit any Subsidiary to,
directly or indirectly, (i) make any distribution on account of or in respect of
any Equity Interests issued by the Company (other than Tax Advances, Withholding
Advances and distributions by the Company of partnership interests of the
Company that are not Redeemable Interests) (ii) purchase, repurchase, redeem or
otherwise acquire or retire for value any Equity Interest issued by the Company
(other than the Notes pursuant hereto); or (iii) purchase, repurchase, redeem,
prepay, defease, or otherwise acquire or retire for value, or make any payment
of principal, interest or other amounts on or with respect to, any Indebtedness
of the Company that is subordinated in right of payment to the Notes; provided,
however, that none of the foregoing shall prohibit the conversion of Class B
Interests
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outstanding on the date hereof into Class A Interests pursuant to the terms of
the Partnership Agreement (as it exists on the date hereof).
SECTION 4.7. Limitation on Additional Indebtedness. Until the Full
Payment Triggering Date, the Company shall not, directly or indirectly, create,
incur, issue, assume, guarantee or otherwise become directly or indirectly
liable for the payment of, contingently or otherwise (collectively, "Incur"),
any Indebtedness.
The foregoing limitation of this Section 4.7 shall not apply to:
(i) Indebtedness of the Company under this Indenture or represented by
the Notes; (ii) Indebtedness of the Company specifically contemplated
by the Plan to be outstanding on the Effective Date as listed on
Schedule I hereto; (iii) Indebtedness of the Company that constitutes a
Capital Infusion in respect of which the Company has not defaulted in
its obligations under Section 3.7 or 4.17 hereof; (iv) Indebtedness of
the Company Incurred in exchange for, or the proceeds of which are used
to extend, refinance, renew, replace, substitute or refund
(collectively, "Refinance"), Indebtedness permitted by clauses (i),
(ii) or (iii) of this Section 4.7 (the "Refinancing Indebtedness");
provided, however, that (A) the principal amount of such Refinancing
Indebtedness shall not exceed the then outstanding principal amount of
the Indebtedness of the Company so extended, refinanced, renewed,
replaced, substituted or refunded (including the reasonable
out-of-pocket costs of issuance, any interest and accrued expenses
owing in respect of such Refinanced Indebtedness, in each case accrued
from the first day of the month in which such refinancing occurs, and
any prepayment premium owing in respect of such Refinanced
Indebtedness), (B) such Refinancing Indebtedness ranks, relative to the
Notes, no more senior than the Indebtedness being Refinanced thereby,
(C) such Refinancing Indebtedness bears interest at or below a market
rate, (D) such Refinancing Indebtedness shall not be secured by any
Lien on any property of the Company except to the extent that there is
a Lien on such property as security for the Indebtedness being
Refinanced, and (E) such Refinancing Indebtedness (1) shall have an
Average Life not less than and a stated maturity (including any
extensions available at the option of the Company) not earlier than,
the Average Life and stated maturity (including any extensions
available at the option of the Company), respectively, of the
Indebtedness being Refinanced or (2) shall not have a scheduled
maturity (including any extensions available at the option of the
Company), principal repayment, sinking fund payment or mandatory
redemption on or prior to the maturity of the Notes; (v) Subordinated
Debt referred to in clause (a), (c) or (e) of the first proviso to the
definition of Capital Infusion; (vi) Indebtedness Incurred by the
Company in exchange for, or the proceeds of which are used to
Refinance, Indebtedness permitted by clause (v) of this Section 4.7
(the "Subordinated Debt Refinancing Indebtedness"); provided, however,
that (A) the principal amount of such Subordinated Debt Refinancing
Indebtedness shall not exceed the sum of (x) the then outstanding
principal amount, and prepayment premiums owing in respect, of the
Subordinated Debt so Refinanced, (y) interest and accrued expenses
owing in respect of the Subordinated Debt so Refinanced, in each case
accrued from the first day of the month in which such refinancing
occurs and (z) the amount of all reasonable and customary transaction
expenses actually incurred
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by the Company in connection with the Incurrence of such Subordinated
Debt Refinancing Indebtedness, and (B) such Subordinated Debt
Refinancing Indebtedness shall be Subordinated Debt; (vii) Indebtedness
for borrowed money of the Company owing to Subsidiaries of the Company
that are not Acquisition Subsidiaries, as referred to in clause (g) of
the first proviso to the definition of Capital Infusion; (viii)
Permitted Indebtedness; and (ix) Indebtedness of the Company which
consists solely of nonrecourse pledges of shares of a class of Capital
Stock (which class of Capital Stock is entitled to elect one director)
of a GP Subsidiary Owner with respect to an Office Building Property
which secures Indebtedness secured by such Office Building Property.
SECTION 4.8. Limitation on Transactions with Affiliates. Neither the
Company nor any of its Subsidiaries shall enter into or suffer to exist any
transaction or series of related transactions with any Related Person of the
Company (including, without limitation, the making of any Investment or
guarantee in, to, or for the benefit of, any such Related Person, the sale,
lease, transfer or other disposition of any properties or assets to, or for the
benefit of, any such Related Person or the purchase or lease of any property or
assets from, any such Related Person), unless (i) such transaction or series of
transactions is on terms that are no less favorable to the Company or the
relevant Subsidiary, as the case may be, than those that could have been
obtained in a comparable transaction on an arm's length basis from a Person that
is not a Related Person of the Company and (ii) with respect to any transactions
or series of related transactions that is of a value greater than $10,000,000,
the Company delivers to the Trustee an opinion from a nationally recognized
investment banking firm that such transaction or series of related transactions
is fair to the Company or the relevant Subsidiary, as the case may be, from a
financial point of view; provided, however, that, solely for purposes of
compliance with this covenant, banking and investment banking transactions that
are concluded as part of a public offering, securitization, syndication or
similar distribution in which non-affiliated financial intermediaries
participate shall be presumed to be on arm's length terms, but only to the
extent that the relevant Related Persons participate on the same basis and
capacity as the financial intermediaries that are not Related Persons.
SECTION 4.9. Repurchase Upon Change in Control. Upon the occurrence of
a Change in Control, the Company shall offer in accordance with the procedures
set forth in Section 3.7 of this Indenture (the "Change in Control Offer") to
purchase all issued and outstanding Notes at the Special Offer Purchase Price
and shall purchase as and when required by Section 3.7 of this Indenture, all
Notes tendered in conformity with such section.
SECTION 4.10. Limitation on Use of Proceeds from Asset Sales. Until
the Full Payment Triggering Date, neither the Company nor any Subsidiary shall,
directly or indirectly, consummate any Asset Sale with or to any Person other
than the Company or a Wholly Owned Subsidiary, unless (i) the Company or the
Subsidiary, as the case may be, receives consideration at the time of any such
Asset Sale at least equal to the fair market value of the asset sold or
otherwise disposed of, and (ii) at least 80% of the net proceeds from such Asset
Sale is received in Cash or Cash Equivalents (provided that the amount of any
liabilities (as shown on the Company's most recent consolidated balance sheet)
of the
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Company or any Subsidiary of the Company that are assumed by the transferee in
such Asset Sale shall be excluded from both the numerator and denominator when
calculating the percent of net proceeds received in Cash or Cash Equivalents for
purposes of this provision). Within 180 days after the receipt by the Company or
any Subsidiary of the Company of Net Cash Proceeds in respect of any Asset Sale,
the Company shall (or shall cause its relevant Subsidiary to) use all such Net
Cash Proceeds (a) to repay Indebtedness of the type described in subsections
(i), (ii), (iii) or (iv) of Section 4.7 of this Indenture, (b) to repay
Indebtedness of any Subsidiary of the Company to the extent of the fair market
value of any asset of the Company or any Subsidiary of the Company that is
pledged to secure such Indebtedness, (c) to make capital improvements to any of
the Core Properties then owned by the Company or any Subsidiary of the Company
or to acquire a New Property or New Property Equity Interests (except that the
amount of Net Cash Proceeds used to make capital improvements and/or to acquire
a New Property or New Property Equity Interests may not exceed 50% of the
aggregate of such Net Cash Proceeds), (d) to make an offer in accordance with
the procedures set forth in Section 3.7 of this Indenture (an "Excess Proceeds
Offer") to purchase Notes at the Special Offer Purchase Price, or (e) for any
combination of the above; provided that, so long as the Excess Proceeds of Asset
Sales at any time do not exceed $2,500,000, the Company need not make an Excess
Proceeds Offer; and provided, further, that if the aggregate amount of all
Excess Proceeds at any time exceeds $2,500,000, the Company shall use such
aggregate Excess Proceeds to make an Excess Proceeds Offer as set forth in this
Section 4.10. The Company shall be deemed to have used Net Cash Proceeds for the
purposes set forth in clause (c) of the preceding sentence when it has made a
binding commitment (which may be subject to customary contingencies or
conditions) to do so, provided that such Net Cash Proceeds are so used within 18
months following receipt of such Net Cash Proceeds or (if the Company determines
that application thereof cannot be effected pursuant to such binding commitment
within such 18 month period) are used within 15 days after such determination
for the purposes described in clause (a) or (b) of the second sentence of this
Section 4.10. If and to the extent that the principal amount of the Notes (plus
accrued interest thereon) tendered pursuant to any Excess Proceeds Offer is less
than the Excess Proceeds available to fund such offer, the Company may use such
remainder, or a portion thereof, for general purposes, without restriction by
this Section 4.10.
SECTION 4.11. Payment of Taxes and Other Claims. The Company shall and
shall cause each of its Subsidiaries to pay or discharge or cause to be paid or
discharged, before any penalty accrues thereon, (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
Subsidiary upon the income, profits or property of the Company or any Subsidiary
of the Company and (ii) all material lawful claims for labor, materials and
supplies which, if unpaid, would by law become a Lien upon the property of the
Company or any Subsidiary of the Company; provided that neither the Company nor
any Subsidiary of the Company shall be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the Holders.
SECTION 4.12. Corporate or Partnership or Other Existence. Subject to
Article 5 hereof, the Company shall and shall cause each of its Subsidiaries to
do or cause to
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be done all things necessary to preserve and keep in full force and effect its
partnership existence and the corporate, partnership or other existence of each
Subsidiary of the Company in accordance with the respective organizational
documents of such Subsidiary and the rights (charter and statutory), licenses
and franchises of the Company and its Subsidiaries and the Controlling Partners;
provided, however, that the Company shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any Subsidiary, if the Company shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Company and its
Subsidiaries taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
SECTION 4.13. Maintenance of Properties and Insurance. The Company
shall and shall cause each of its Subsidiaries to cause all material properties
owned by, or leased to, the Company or any Subsidiary of the Company and used in
the conduct of its business to be maintained and kept in normal condition,
repair and working order and supplied with all necessary equipment and shall
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 conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company or any Subsidiary of the Company from discontinuing the maintenance of
any such properties, if such discontinuance is desirable in the conduct of its
business and is not adverse in any material respect to the Holders.
The Company shall and shall cause each of its Subsidiaries to provide
or cause to be provided insurance (including self-insurance) against loss or
damage of the kinds customarily insured against by entities similarly situated
and owning like properties, including, but not limited to, liability insurance,
in such amounts, with such deductibles and by such methods as shall be customary
for entities similarly situated in the industry.
SECTION 4.14. Stay, Extension and Usury Laws. The Company covenants
(to the fullest extent it may lawfully do so) that it will not at any time
insist upon, plead or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law wherever enacted, now or at any
time hereafter enforced, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law has been enacted.
SECTION 4.15. Payment for Consent. Neither the Company, any
Controlling Partner nor any of their respective Subsidiaries or Affiliates
shall, directly or indirectly, pay or cause to be paid any consideration,
whether by way of interest, fee or otherwise, to any Holder of any Notes for or
as an inducement to obtaining any consent, waiver or amendment of any of the
terms or provisions of this Indenture or the Notes, unless such consideration is
offered in writing to all Holders of Notes on the same terms and conditions and
agreed to be paid, and paid, to all Holders of the Notes which so consent, waive
or agree to amend in the time frame set forth in the solicitation documents
relating to
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such consent, waiver or agreement (which time frame shall not consist of less
than 20 Business Days).
SECTION 4.16. Covenant to Comply with Securities Laws upon Purchase of
the Notes. In connection with any offer to purchase or purchase of the Notes (or
portions thereof) by the Company or any Subsidiary of the Company, the Company
shall (i) comply with Rule 13e-4 (other than, if not otherwise applicable, the
filing requirements of such rule) and Regulation 14E under the Exchange Act, and
(ii) otherwise comply with all Federal and state securities laws and regulations
so as to permit the rights and obligations hereunder (including Sections 3.7,
4.9, 4.10 and 4.17 hereof) to be exercised in the time and in the manner
specified in such Sections.
SECTION 4.17. Capital Infusion Offer. Upon each occurrence of a
Capital Infusion at any time prior to the Full Payment Triggering Date, the
Company shall offer in accordance with the procedures set forth in Section 3.7
of this Indenture (a "Capital Infusion Offer") to purchase at the Special Offer
Purchase Price sufficient Notes so that the aggregate of the principal amount of
all Notes (or portions thereof) offered to be purchased equals the amount of
such Capital Infusion.
SECTION 4.18. Officers' Certificates. Simultaneously with the
execution and delivery of this Indenture, (i) counsel to the Company shall
deliver to the Trustee on behalf of the Holders an Opinion of Counsel in the
form of Exhibit B hereto and (ii) the Company shall deliver to the Trustee on
behalf of the Holders CP Certificates that provide that all of the
representations and warranties set forth in Article 12 hereof are true, complete
and correct in all material respects.
SECTION 4.19. Tag Along Rights. (a) If at any time any limited or
general partner of the Company alone or together with any other such partners
(such partner or partners, "Tag-Along Sellers") proposes to enter into an
agreement (or substantially contemporaneous agreements, whether or not with the
same or affiliated parties) to sell or otherwise dispose of for value to any
Person or Group (as such term is defined in Sections 13(d)(3) and 14(d)(2) of
the Securities Exchange Act of 1934, as amended and in effect as of the date
hereof) other than a Wholly-Owned Affiliate (as defined in the Partnership
Agreement as in effect on the date hereof) of such partner or partners (a
"Tag-Along Purchaser") a Majority Interest (as defined in the Partnership
Agreement as in effect on the date hereof) in one or more related transactions
(such sale or other disposition for value being referred to as a "Majority
Tag-Along Sale"), then the Company shall cause the Tag- Along Sellers to afford
each Holder the opportunity to participate proportionately in such Majority
Tag-Along Sale in accordance with this Section 4.19. If at any time any
Tag-Along Sellers propose to enter into an agreement (or substantially
contemporaneous agreements, whether or not with the same or affiliated parties)
to sell or otherwise dispose of for value to any Tag-Along Purchaser a
Qualifying Interest (as defined in the Partnership Agreement as in effect on the
date hereof) in one or more related transactions (such sale or other disposition
for value being referred to as a "Qualifying Tag-Along Sale"; any Qualifying
Tag-Along Sale or any Majority Tag-Along Sale is sometimes referred to herein as
a "Tag- Along Sale"), then the Company shall cause the Tag-Along Sellers to
afford each 4% Holder the opportunity to participate proportionately in such
Qualifying Tag-Along Sale in
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accordance with this Section 4.19; provided, however, that if any Holder shall
have at any time exercised tag-along rights pursuant to this Section 4.19 or
pursuant to Section 9.08 of the Partnership Agreement, such exercise(s)
resulting in the sale or disposition of a portion, but not all, of such Holder's
Class A Interests and/or Notes, such Holder shall thereafter continue to be
deemed to be a 4% Holder notwithstanding that, as of the close of business on
the day immediately prior to the Tag-Along Notice Date relating to such
subsequent Qualifying Tag-Along Sale, such Holder no longer is a 4% Holder; and
provided, further, that no Holder shall be required to make any representation,
warranty or covenant in connection with a Tag-Along Sale, other than
representations and warranties as to its valid existence and its ownership,
authority and agreement to sell, free of liens, claims or encumbrances or any
right of set-off, the Notes proposed to be sold by it.
(b) The Company shall cause the relevant Tag-Along Sellers to provide
each Holder entitled to participate in such Tag-Along Sale pursuant to the
provisions of Section 4.19(a) hereof with written notice (the "Tag-Along Sale
Notice") not more than sixty (60) days nor less than twenty (20) days prior to
(the date of such Tag-Along Sale Notice being the "Tag-Along Notice Date") the
proposed date of the Tag-Along Sale (the "Tag- Along Sale Date"). Each Tag-Along
Sale Notice shall be accompanied by a copy of any written agreement relating to
the Tag-Along Sale (redacted to the extent necessary to comply with any
applicable confidentiality restriction but not so as to eliminate any
information otherwise required to be provided below) and shall set forth: (i)
the name and address of each proposed Tag-Along Purchaser of Class A Interests
in the Tag-Along Sale, (ii) the total percentage of Class A Interests (computed
on a basis that assumes all then outstanding Notes (exclusive of accrued
interest thereon) have been converted into Class A Interests) proposed to be
Transferred (as such term is defined in the Partnership Agreement as in effect
on the date hereof) by such Tag-Along Sellers (the "Original Sale Percentage"),
(iii) the proposed amount of consideration to be paid for such Class A
Interests, which consideration may be paid only in cash, and the terms and
conditions of payment offered by each proposed Tag- Along Purchaser, (iv) the
Tag-Along Sale Date and (v) the name and address of each Tag- Along Seller.
(c) Any Holder entitled to participate in the relevant Tag-Along Sale
pursuant to Section 4.19(a) hereof wishing to participate in the Tag-Along Sale
shall provide written notice (the "Tag-Along Notice") to the Company and the
relevant Tag-Along Sellers no less than five (5) Business Days prior to the
Tag-Along Sale Date. The Tag-Along Notice shall set forth the maximum principal
amount of Notes that such Holder elects to include in the Tag-Along Sale (the
percentage obtained by dividing (x) the number of Class A Interests issuable
upon conversion of such principal amount of Notes (exclusive of accrued interest
thereon) as of the close of business on the day immediately preceding the
Tag-Along Notice Date by (y) the number of Class A Interests outstanding as of
the close of business on the day immediately preceding the Tag-Along Notice Date
plus the number of Class A Interests issuable upon conversion of all outstanding
Notes (exclusive of accrued interest thereon) as of the close of business on the
day immediately preceding the Tag-Along Notice Date is herein referred to as
such Holder's "Tag-Along Sale Percentage"). The Tag-Along Notice given by any
Holder shall constitute such Holder's binding agreement to sell the principal
amount of Notes specified in the Tag-Along Notice on the terms and conditions
applicable to the Tag-Along Sale as if such Holder were selling a number of
Class A Interests equal to the
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number of Class A Interests issuable upon conversion of such principal amount of
Notes on the date of consummation of such Tag-Along Sale; provided, however,
that in the event that there is any material change in the terms and conditions
of such Tag-Along Sale applicable to the Holder (including, without limitation,
any decrease in the purchase price that occurs other than pursuant to an
adjustment mechanism set forth in the agreement relating to the Tag- Along Sale
or any failure to consummate the Tag-Along Sale within 90 days after the Tag-
Along Sale Date) after such Holder gives its Tag-Along Notice, then,
notwithstanding anything herein to the contrary, the Holder shall have the right
to withdraw from participation in the Tag-Along Sale with respect to all of its
Notes affected thereby. If the proposed Tag-Along Purchaser does not agree to
consummate the purchase for cash consideration of all of the Notes requested to
be included in the Tag-Along Sale by the Holders on the same terms and
conditions (except as otherwise provided in the last proviso to Section 4.19(a)
and as if such Holders were selling a number of Class A Interests equal to the
number of Class A Interests issuable upon conversion of such principal amount of
Notes on the date of consummation of such Tag-Along Sale) applicable to the
proposed purchase of the Original Sale Percentage of the Tag-Along Sellers, then
the Company shall cause such Tag-Along Sellers not to consummate the Tag-Along
Sale of any of their respective Class A Interests to such Tag-Along Purchaser,
unless the principal amount of Notes of each Holder that has delivered a
Tag-Along Notice to be purchased by the Tag-Along Purchaser in such sale shall
not be reduced below the Adjusted Tag-Along Amount in respect thereof and all
other terms and conditions of the Tag-Along Sale are the same for such Tag-Along
Sellers and the participating Holders (except as otherwise provided in the last
proviso to subsection 4.19(a) and as if the participating Holders were selling a
number of Class A Interests equal to the number of Class A Interests issuable
upon conversion of the principal amount of Notes being sold on the date of
consummation of such Tag-Along Sale).
If a Tag-Along Notice from any Holder is not received by the Company
no less than five (5) Business Days prior to the Tag-Along Sale Date, the
Company shall have no obligation to cause such Holder to be included in such
Tag-Along Sale, but only if such Tag-Along Sale is consummated on terms and
conditions which are no more favorable in any material respect to the Tag-Along
Sellers (and in any event, at no greater a purchase price, except as the
purchase price may be adjusted pursuant to the agreement relating to the
relevant Tag-Along Sale) than as stated in the Tag-Along Sale Notice and only if
such Tag- Along Sale is consummated on a date within sixty (60) days of the
Tag-Along Sale Date.
(d) On the date of closing of a Tag-Along Sale, each Holder shall
deliver such documentation, certificates or other instruments with respect to
the Notes to be sold by it in connection with such Tag-Along Sale as may be
reasonably required for the transfer of such Notes to the relevant Tag-Along
Purchaser, against delivery of the purchase price for such Notes, net of any
U.S. or state withholding taxes required to be withheld by the Tag- Along
Purchaser.
(e) The closing of any sale of Notes pursuant to this Section 4.19
shall take place at the offices of the Company (or at such other location as
shall be reasonably designated by the Company) concurrently with the closing of
any sale by the Tag-Along Sellers to the Tag-Along Purchaser.
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SECTION 4.20. Certain Amendments to Partnership Agreement. The Company
shall not permit to become effective any amendment to the Partnership Agreement
that would have the effect of (i) converting the interest of a holder of Class A
Interests issuable on conversion of the Notes from a limited partnership
interest into a general partnership interest, (ii) imposing any personal
liability on any holder of Class A Interests issuable on conversion of the Notes
or (iii) causing the rights and remedies available to any holder of a Class A
Interest issuable on conversion of the Notes to be different than those
available to the holder of any other Class A Interest.
SECTION 4.21. Limitations on Subsidiary Owners.
(a) Until the Full Payment Triggering Date, the Company shall not
permit any Subsidiary of the Company to at any time be a Subsidiary Owner with
respect to more than one Office Building Property, except that any GP Subsidiary
Owner may have an Equity Interest not in excess of 1.5% in the record or
beneficial owners of each of the Office Building Properties with respect to
which it is a GP Subsidiary Owner.
Until the Full Payment Triggering Date, except for Indebtedness of the
Company existing on the date hereof, Indebtedness permitted by clause (ix) of
Section 4.7, Refinancing Indebtedness permitted by clause (iv) of Section 4.7
and Indebtedness that constitutes a Capital Infusion in respect of which the
Company has not defaulted in its obligations under Sections 3.7 and 4.17 hereof,
the Company shall not permit to exist any Indebtedness of the Company of the
kind referred to in clause (v) or clause (vi) of the definition of
"Indebtedness"; provided, however, that the foregoing provisions of this
definition shall not be construed to prohibit the Company from providing to any
lender an environmental or similar indemnity in customary form.
(b) Until the Full Payment Triggering Date, the Company shall not
permit any Subsidiary Owner with respect to any Office Building Property to be
contingently liable for (whether pursuant to a guarantee or otherwise), or to
have any of its property be subject to a Lien which secures, (i) any
Indebtedness in excess of $1,000,000 of any Subsidiary Owner with respect to any
other Office Building Property, or (ii) any Indebtedness in excess of $1,000,000
secured by a Lien on any other Office Building Property or on any Equity
Interest in any Subsidiary Owner with respect to any other Office Building
Property. The provisions of this Section 4.21(b) shall not be deemed to be
violated by any of the following:
(a) any contingent liability of, or any Lien on the property of, any
Subsidiary Owner with respect to any Office Building Property if
and to the extent that such contingent liability or Lien (a)
exists on the date hereof and (b) is for, or secures,
Indebtedness of the kind referred to in clause (i) or (ii) of the
preceding sentence outstanding on the date hereof or any
Indebtedness Incurred in a Refinancing Transaction to Refinance
such Indebtedness; provided, however, that, in the case of
Indebtedness so Incurred to Refinance such Indebtedness, (A) such
Incurred Indebtedness shall not be secured by any Lien on any
property of the Company or any Subsidiary Owner except (1) to the
extent that there is a Lien on such property as security for the
Indebtedness being Refinanced and (2) Indebtedness secured by an
Office Building Property
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may also be secured by a nonrecourse pledge of shares of a
class of Capital Stock (which class of Capital Stock is
entitled to elect one director) of the GP Subsidiary Owner
with respect to such Office Building Property, and (B) such
Incurred Indebtedness shall not be Indebtedness of the Company
or of any Subsidiary Owner except (1) to the extent that the
Indebtedness being Refinanced is Indebtedness of the Company
or such Subsidiary Owner, as the case may be, and (2) that
Indebtedness secured by an Office Building Property may also
be secured by a nonrecourse pledge of shares of a class of
Capital Stock (which class of Capital Stock is entitled to
elect one director) of the GP Subsidiary Owner with respect to
such Office Building Property.
(b) any contingent liability of, or any Lien on the Property of, a GP
Subsidiary Owner with respect to two or more Office Building
Properties if and to the extent that such contingent liability or
Lien is for, or secures, (a) any Indebtedness of any Subsidiary
Owner with respect to any of such Office Building Properties or
(b) any Indebtedness secured by a Lien on any of such Office
Building Properties or on any Equity Interest in any Subsidiary
Owner with respect to any of such Office Building Properties.
ARTICLE 5.
SUCCESSOR ENTITY
SECTION 5.1. When the Company May Merge or Transfer Assets. The
Company shall not consolidate with, merge with or into, or sell, lease,
transfer, convey or otherwise dispose of all or substantially all of its assets
(in one transaction or a series of related transactions) to, any Person (the
Person formed by or surviving such consolidation or merger, or to which such
sale, lease, conveyance or other disposition shall have been made, whether the
Company or another Person, being herein called the "Surviving Entity") unless:
(i) the Surviving Entity (if other than the Company) shall be a
corporation, limited liability company or partnership organized and
existing under the laws of the United States or any State thereof or
the District of Columbia and shall expressly assume, by a supplemental
indenture, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all of the obligations of the Company under the Notes
and this Indenture;
(ii) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have
occurred and be continuing; and
(iii) immediately after giving effect to such transaction on a
pro forma basis, the Consolidated Net Worth of the Surviving Entity
(without giving effect to any write-up of assets of the Company and/or
any other Person in which the Company owned, directly or indirectly,
any Equity Interest immediately prior to such transaction as a result
of purchase accounting but after adjusting (to fair market value) the
value of all real estate interests held immediately prior to such
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transaction by Persons other than the Company and Persons in which
the Company then owned, directly or indirectly, any Equity
Interest) is at least equal to the Consolidated Net Worth of the
Company immediately prior to such transaction.
SECTION 5.2. Surviving Entity Substituted. Upon any consolidation or
merger or any transfer of all or substantially all of the assets of the Company
in accordance with this Article 5, the Surviving Entity (if other than the
Company), upon compliance with the provisions of clause (i) of Section 5.1
hereof, 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
Surviving Entity had been named as the Company herein; and thereafter (provided
that there has been compliance with the provisions of Section 5.1) the
predecessor company shall be discharged and released from all obligations and
covenants under this Indenture and the Notes; provided, however, that nothing in
Article V shall limit or affect in any way the Company's obligations under this
Indenture which arise out of a Change in Control that occurred upon, or prior
to, the consummation of any consolidation, merger or transfer of all or
substantially all of the assets of the Company.
SECTION 5.3. CP Certificate and Opinion of Counsel. Any consolidation,
merger, sale, lease or conveyance permitted under Section 5.1 is also subject to
the condition that the Trustee receive a CP Certificate and an Opinion of
Counsel to the effect that such consolidation, merger, sale, lease or
conveyance, and the assumption by any Surviving Entity, complies with the
provisions of this Article and that all conditions precedent herein provided for
relating to such transactions have been complied with.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. An "Event of Default" occurs if one of
the following shall occur:
(i) the Company defaults in the payment, when due and payable, of
(A) interest on the Notes and the default continues for a period of 10
days, or (B) the principal of or premium, if any, on the Notes when
the same becomes due and payable, whether at maturity, on the
Redemption Date, on the Special Offer Payment Date, by acceleration or
otherwise;
(ii) the Company fails to make or consummate any Special Offer,
as, when and to the extent required by the provisions of Section 3.7
hereof and Sections 4.9, 4.10 or 4.17 hereof, as the case may be;
(iii) the Company fails to comply in any respect with any of the
provisions of Section 5.1 hereof;
(iv) any representation or warranty contained in Article 12 of
this Indenture shall be untrue as of the Effective Date in any
material respect;
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(v) the Company fails to comply in any respect with any provision
of Section 4.6, Section 4.7, Section 4.19 or Section 4.20 of this
Indenture and such failure continues for 30 days after receipt by the
Company of a written notice from the Trustee or the Holders of at
least 25% of the then outstanding principal amount of the Notes
(excluding any Note then held by the Company or an Affiliate of the
Company);
(vi) the Company fails to comply in any material respect with any
other provision in this Indenture or the Notes and such failure
continues for 30 days after receipt by the Company of a written notice
from the Trustee or the Holders of at least 25% of the then
outstanding principal amount of the Notes (excluding any Note then
held by the Company or an Affiliate of the Company);
(vii) there shall be a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness of the Company or any of its
Significant Subsidiaries (other than an Exempt Subsidiary), which
default shall have resulted in the acceleration of such Indebtedness
prior to its stated final maturity and the principal amount of such
Indebtedness exceeds $5,000,000;
(viii) there shall be judgments against the Company or any
Significant Subsidiary (other than an Exempt Subsidiary) rendered by a
court or other tribunal of competent jurisdiction aggregating (for the
Company and all Significant Subsidiaries (other than an Exempt
Subsidiary) in the aggregate) in excess of $5,000,000 and (a) such
judgments are not stayed or discharged within 60 days after their
entry or (b) an enforcement proceeding shall have been commenced (and
not discharged, stayed or settled) by any creditor upon any such
judgments;
(ix) the Company, a Controlling Partner, or any Significant
Subsidiary (other than an Exempt Subsidiary):
(A) commences a voluntary case or proceeding under any
Bankruptcy Law;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding under any Bankruptcy Law;
(C) consents to the appointment of a Custodian of it or for all
or any substantial part of its property;
(D) makes a general assignment for the benefit of its creditors;
(E) admits in writing its inability to pay its debts generally
as they become due; or
(F) dissolves or is deemed dissolved as a matter of law or
contract (unless, in the case of a partnership, the same is
contemporaneously reconstituted pursuant to a provision in
its partnership agreement);
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(x) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company, a Controlling Partner or
any Significant Subsidiary (other than an Exempt Subsidiary)
of the Company in an involuntary case or proceeding;
(B) appoints a Custodian of the Company, a Controlling Partner
or any Significant Subsidiary (other than an Exempt
Subsidiary) for all or a substantial part of its properties;
or
(C) orders the liquidation or dissolution of the Company, a
Controlling Partner, or any Significant Subsidiary (other
than an Exempt Subsidiary);
and in any such case the order or decree remains unstayed and in effect for
60 days;
(xi) default by the Company in the conversion of any Note in
accordance with the terms hereof and thereof, which default continues
for three Business Days after written notice thereof from any Holder
to the Company and the Trustee;
(xii) there is a default in payment, when due and payable, of any
installment of principal or interest on the TIAA Note, which default
shall have resulted in the acceleration of the TIAA Note prior to its
final stated maturity.
(xiii) there shall be a default under any mortgage, indenture or
instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness of the Company that is
subordinated in right of payment to the Notes, which default shall
have resulted in the acceleration of such Indebtedness prior to its
stated final maturity; or
(xiv) the opinion or the CP certificate contemplated by Section
4.18 hereof are not delivered to the Trustee on the date hereof.
SECTION 6.2. Acceleration. If an Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% of the then outstanding
principal amount of the Notes (excluding any Note then held by the Company or an
Affiliate of the Company), by written notice to the Company (and to the Trustee
if such notice is given by such Holders) (the "Acceleration Notice"), may, and
the Trustee at the written request of such Holders shall, declare all unpaid
principal of, premium, if any, on and accrued interest on the Notes to be
immediately due and payable, and thereupon the Trustee may in its discretion
proceed to protect and enforce the rights of the Holders of the Notes by
judicial proceedings to the extent that the Trustee has been fully indemnified
in connection therewith and subject to Section 6.5 hereof.
A copy of the Acceleration Notice shall be deemed to have been duly
delivered upon receipt, if personally delivered; when transmitted with
confirmation of receipt, if
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transmitted by telecopy; the day after being sent, if sent for next day delivery
to a domestic address by a recognized overnight delivery service; and upon
receipt, if sent by registered or certified mail, return receipt requested. Upon
a declaration of acceleration, such principal, premium, if any, and accrued
interest shall be immediately due and payable. Notwithstanding anything to the
contrary contained herein, if an Event of Default under Section 6.1(ix) or
Section 6.1(x) occurs with respect to the Company, all unpaid principal of,
premium, if any, and accrued interest on the Notes then outstanding shall become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder. Holders of a majority of the then outstanding
principal amount of the Notes (excluding any Note then held by the Company or an
Affiliate of the Company) by notice to the Trustee may rescind an acceleration
and its consequences, except an acceleration due to (i) default in payment of
principal, premium, if any, or interest on the Notes, (ii) failure to make or
consummate any Special Offer or to pay any amounts in connection therewith or
(iii) default in respect of conversion of a Note pursuant to Article 11.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of, premium, if any, or interest
on the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess the Notes or does not produce the Notes in the proceeding. A delay or
omission by the Trustee or any Noteholder in exercising any right or remedy
accruing upon an Event of Default or a Default shall not impair the right or
remedy or constitute a waiver of, or acquiescence in, the Event of Default or
the Default. No remedy is exclusive of any other remedy. To the extent permitted
by law, all available remedies are cumulative.
SECTION 6.4. Waiver of Past Defaults. The holders of at least 66 2/3%
of the then outstanding principal amount of the Notes (excluding any Note then
held by an Affiliate of the Company), by notice to the Trustee (and without
notice to any other Noteholder), may waive an existing Default or Event of
Default and its consequences except (a) an Event of Default or a Default in the
payment of principal of, premium, if any, or interest on the Notes, in respect
of conversion of a Note or in connection with the making or consummation of a
Special Offer, and (b) a Default in respect of a provision that under Section
9.2 hereof can be amended only with the consent of each Noteholder affected.
When a Default or Event of Default is waived, it is cured and ceases to exist,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right.
SECTION 6.5. Control by Holders. The holders of a majority of the then
outstanding principal amount of the Notes (excluding any Note then held by the
Company or an Affiliate of the Company) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines in good faith is unduly prejudicial to the rights of
other Noteholders or would involve the Trustee in personal liability. The
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
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SECTION 6.6. Limitation on Suits. Except as provided in Section 6.7
hereof, a Noteholder may not pursue any remedy with respect to this Indenture or
the Notes unless:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% of the then outstanding principal
amount of the Notes (excluding any Note then held by the Company or an Affiliate
of the Company) make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity or security
reasonably satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 30 days after
receipt thereof and the offer of indemnity or security; and
(5) during such 30-day period the holders of beneficial interests of a
majority of the then outstanding principal amount of the Notes (excluding any
Note then held by the Company or an Affiliate of the Company) do not give the
Trustee a direction inconsistent with the request.
Notwithstanding anything to the contrary contained in this Section
6.6, any Holder of the Notes shall have the right to institute a proceeding with
respect to this Indenture or the Notes or for any remedy in each of the
following instances:
(w) a Holder of a Note may institute suit for enforcement of payment
of principal of and premium, if any, or interest on such Note on or after the
due dates expressed in such Note (including upon acceleration thereof);
(x) a Holder of a Note may institute suit for enforcement of payment
of any Special Offer Purchase Price in respect of such Note after the relevant
Special Offer Payment Date;
(y) a Holder of a Note may institute suit for enforcement of its
conversion rights set forth in Article 11 hereof; or
(z) Holders of at least 66 2/3% of the then outstanding principal
amount of the Notes (excluding any Note then held by the Company or an Affiliate
of the Company) may institute any proceeding with respect to this Indenture or
the Notes or any remedy thereunder, including without limitation acceleration;
provided that, upon institution of any proceeding or exercise of any remedy such
holders provide the Trustee with prompt written notice thereof.
A Noteholder may not use this Indenture to prejudice the rights of any
other Noteholder or to obtain a preference or priority over any other
Noteholder.
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SECTION 6.7. Rights of Holders to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount, premium, if any, or interest, in respect of the Notes held
by such Holder, on or after the due dates expressed in the Notes, any Redemption
Date, any Special Offer Payment Date or to bring suit for the enforcement of any
such payment on or after such dates or to convert such Notes, shall not be
impaired or affected adversely without the consent of such Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default
described in Section 6.1(i) hereof occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Notes and the amounts
provided for in Section 7.7 hereof.
SECTION 6.9. Trustee May File Proofs of Claim. In connection with any
judicial proceeding involving the Company, its creditors or its property, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(1) to file and prove a claim for the whole amount of the principal
amount, premium, if any, and interest on the Notes and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7 hereof.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for the
Redemption Price, Special Offer Purchase Price, principal amount, premium or
interest, if
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any, as the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Notes; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Noteholders pursuant to this Section 6.10.
SECTION 6.11. Undertaking For Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as a Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant; provided, however, that the provisions of this
Section 6.11 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% of the aggregate principal amount of the Notes outstanding (excluding
any Note then held by the Company or an Affiliate of the Company), to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
premium, if any, Special Offer Purchase Price or interest on any Note on or
after the due date expressed in such Note, or to any suit instituted by any
Holder for the enforcement of such Xxxxxx's conversion rights in respect of any
Note after the date on which such Note has been surrendered for conversion in
accordance with the provisions of Section 11.2 hereof.
ARTICLE 7. TRUSTEE
SECTION 7.1. Duties of Trustee.
(1) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care in its exercise as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default:
(A) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(B) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture. However,
in the case of any such certificates or opinions which by
any provision hereof are specifically required to be
furnished to the
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Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(A) this paragraph (3) does not limit the effect of paragraph
(2) of this Section 7.1;
(B) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(C) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5 hereof.
(4) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (1), (2), (3) and (5) of this Section 7.1 and
Section 7.2.
(5) The Trustee shall be under no obligation to perform any duty or
to exercise any of the rights or powers vested in it by this Indenture or to
expend or risk its own funds or otherwise incur any financial liability at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity reasonably
satisfactory to it against any loss, liability or expense which might be
incurred by it in compliance with such request or direction.
(6) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall not be liable for the payment of any interest on any money deposited with
it except to the extent agreed upon with the Company in writing.
SECTION 7.2. Rights of Trustee.
(1) Subject to Section 7.1(2)(B), the Trustee may rely on any
document reasonably believed by it to be genuine and to have been signed or
presented by the proper Person. The Trustee need not investigate any fact or
matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require a CP Certificate and an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such CP Certificate and Opinion of Counsel.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
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(4) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers conferred upon it by the Indenture.
(5) The Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon.
SECTION 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of the Notes
(or certain portions thereof) and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Paying
Agent or Registrar may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11 hereof.
SECTION 7.4. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Notes. It
shall not be accountable for the use or application of any moneys paid over by
the Trustee in accordance with any provision of this Indenture, or for the use
or application of any moneys received by any Paying Agent other than the
Trustee. It shall not be responsible for any statement in any registration
statement for the Notes under the Securities Act (other than statements
contained in any Form T-1 filed with the Commission under the TIA) or in this
Indenture or the Notes (other than its certificate of authentication).
SECTION 7.5. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to the
Noteholders, as their names and addresses appear on the Register, notice of the
Event of Default within 30 days after a Trust Officer receives written notice
thereof stating that it is a notice of "Default" and citing the applicable
subsection of Section 6.1 and identifying this Indenture, unless such Default
has been cured or waived. The Trustee shall not be deemed to have notice of any
Default until a Trust Officer shall have received written notice thereof
referring expressly to this Indenture and citing the applicable subsection of
Section 6.1 hereof. The second sentence of this Section 7.5 shall be in lieu of
the proviso to Section 315(b) of the TIA and said proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 7.6. Reports by Trustee to Holders. Within 60 days
after each September 1 beginning with September 1, 1997, the Trustee shall mail
to each Noteholder a brief report dated as of such September 1 in accordance
with and to the extent required under Section 313(a) of the TIA. The Trustee
shall also comply with the reporting requirements of Section 313(b) of the TIA,
to the extent applicable. In addition, the Trustee shall mail to each Noteholder
copies of all materials received from the Company pursuant to the Indenture and
not otherwise provided to the Noteholders. All reports sent by the Trustee
pursuant to this Section 7.6 will be sent in compliance with Section 313(b) of
the TIA.
SECTION 7.7. Compensation and Indemnity. The Company agrees:
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(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the 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) to reimburse the Trustee upon its request for all
reasonable and documented expenses, disbursements and advances (if any) incurred
or made by the Trustee in accordance with any provision of this Indenture,
including the reasonable compensation and the expenses, disbursements and
advances of its agents and counsel) and all reasonable expenses, disbursements
and advances incurred or made by the Trustee in connection with any membership
on any creditor's committee, excluding, however, any such expense, disbursement
or advance that may be attributable to the negligence or bad faith of the
Trustee or its agents or counsel;
(3) to reimburse the Trustee's counsel on the Effective Date
for its fees and expenses in connection with review and revision and delivery of
this Indenture and related documentation; and
(4) to indemnify the Trustee in its capacity as such, (which
for purposes of this subsection (4) shall include its officers, directors,
employees, and agents) for, and to hold it harmless against, any and all loss,
liability, costs, claim (including the fees and disbursements of counsel), or
expense, incurred without negligence or bad faith on its part, arising out of or
in connection with the acceptance or administration of this Indenture or
performance of its duties hereunder, including the reasonable and documented
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 Trustee shall have a claim and lien prior to the Notes as
to all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 7.7, except with respect to funds
held in trust for the payment of principal of, premium, if any, or interest on
particular Notes or portions thereof.
The Company's payment obligations pursuant to this Section 7.7
shall survive the resignation or removal of the Trustee and the discharge of
this Indenture. When the Trustee renders services or incurs expenses after the
occurrence of a Default specified in Section 6.1(viii) or Section 6.1(ix)
hereof, the compensation for services and expenses are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.8. Replacement of Trustee. The Trustee may resign
for any reason by so notifying the Company in writing at least 45 days prior to
the date of the proposed resignation; provided, however, no such resignation
shall be effective until a successor Trustee has accepted its appointment
pursuant to this Section 7.8. The Holders of at least a majority of the then
outstanding principal amount of the Notes (excluding any Note then held by the
Company or an Affiliate of the Company) may remove the Trustee by so notifying
the Trustee and the Company in writing and may appoint a successor Trustee
subject to the consent of the Company. The Trustee shall resign and the Company
may remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged bankrupt or insolvent or an order of
relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a Custodian, receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Noteholders. Subject to payment of all amounts owing to the
Trustee under Section 7.7 hereof and subject further to its lien under Section
7.7, the retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee.
If a successor Xxxxxxx does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of beneficial interests of at least a majority of the then outstanding
principal amount of the Notes (excluding any Note then held by an Affiliate of
the Company) may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
SECTION 7.9. Successor Trustee by Xxxxxx. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets (including this Trusteeship) to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee; provided that such successor is
eligible under Section 7.10 hereof.
SECTION 7.10. Eligibility; Disqualification. There shall at all times
be a Trustee hereunder which shall (i) be a corporation organized and doing
business under the laws of the United States of America or of any state thereof
authorized under such laws to exercise corporate trustee power and (ii) be
subject to supervision or examination by Federal or state authority. The Trustee
shall at all times satisfy the requirements of TIA ss. 310(a)(1). The Trustee
shall have a combined capital and surplus of at least $50,000,000 or such other
amount as required by the TIA hereafter, as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA ss.
310(b). In determining whether the Trustee has conflicting interests as defined
in TIA ss. 310(b)(1), the provisions contained in the proviso to TIA ss.
310(b)(1) shall be deemed incorporated herein. If the Trustee
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acquires any such conflicting interest, it must eliminate such conflict within
90 days, apply to the Commission for permission to continue as Trustee under
this Indenture, or resign. If at any time the Trustee shall cease to be eligible
in accordance with the provisions of this Section, it shall resign immediately
in the manner and with the effect specified in Section 7.8.
SECTION 7.11. Preferential Collection of Claims Against the Company.
If the Trustee shall be or become a creditor of the Company (or any other
obligor under the Notes), the Trustee shall be subject to the provisions of the
TIA regarding the collection of claims against the Company (or any such other
obligor). If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect specified in Section 7.8.
ARTICLE 8.
DISCHARGE OF INDENTURE; LEGAL DEFEASANCE
AND COVENANT DEFEASANCE
SECTION 8.1. Legal Termination. This Indenture shall cease to be of
further effect (except that the Company's obligations under Section 7.7 and the
Trustee's and Paying Agent's obligations under Section 8.7 shall survive), when
the Notes previously authenticated and delivered (other than destroyed, lost or
stolen Notes which have been replaced or paid) have been delivered to the
Trustee for cancellation or conversion and the Company has paid and delivered
all sums payable or deliverable, and issued all Class A Interests required to be
issued, by it hereunder.
SECTION 8.2. Company's Option to Effect Legal Defeasance or Covenant
Defeasance. The Company may, at its option at any time, elect to have either
Section 8.3 or Section 8.4 applied to the Notes upon compliance with the
conditions set forth below in this Article 8.
SECTION 8.3. Legal Defeasance and Discharge. Upon the Company's
exercise of the option provided in Section 8.2 applicable to this Section 8.3,
the Company shall be deemed to have been discharged from its obligations with
respect to the Notes (other than those specified below or in Section 8.8), on
the date the conditions set forth in Section 8.5 are satisfied (hereinafter
"Legal Defeasance"). For this purpose, such Legal Defeasance means that the
Company shall be deemed to have paid and discharged the entire Indebtedness
represented by the Notes, which shall thereafter be deemed to be "outstanding"
only for the purposes of the sections of, and matters under, this Indenture
referred to in clauses (A) and (B) below and to have satisfied all its other
obligations under the Notes and this Indenture insofar as the Notes are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of the Notes to receive, solely from the trust fund described in Section
8.5(i) and as more fully set forth in such Section, payments in respect of the
principal of, premium, if any, and interest on the Notes when such payments are
due, (B) the Company's obligations with respect to the Notes under Sections 2.3,
2.6, 2.7 and 2.10, (C) the rights, powers, trusts, duties and
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immunities of the Trustee hereunder and the Company's obligations in connection
therewith, and (D) this Article 8 and Article 11. Subject to compliance with
this Article 8, the Company may exercise its option under this Section 8.3
notwithstanding the prior exercise of its option under Section 8.4.
SECTION 8.4. Covenant Defeasance. Upon the Company's exercise of the
option provided in Section 8.2 applicable to this Section 8.4 on the date the
conditions set forth in Section 8.5 are satisfied, (i) the Company shall be
released from its obligations under Articles 4 and 5 hereof except Sections 4.1
and 4.2 and (ii) the occurrence of an event specified in Section 6.1 with
respect to any of the provisions of Articles 4 or 5 hereof shall not be deemed
to be an Event of Default on and after the date the conditions set forth below
are satisfied (hereinafter, "Covenant Defeasance").
SECTION 8.5. Conditions to Legal Defeasance and Covenant Defeasance.
The following shall be the conditions to application of Section 8.3 or Section
8.4 to the then outstanding Notes:
(i) the Company must have irrevocably deposited with the Trustee, in
trust, for the benefit of the Holders of the Notes, Cash in immediately
available funds sufficient (excluding interest income), in the opinion of a
nationally recognized firm of independent public accountants, to pay the
principal of, premium, if any, and interest on, with respect to the Notes on the
Stated Maturity Date of the Notes or on the Redemption Date, as the case may be,
of such principal of, premium, if any, and interest on the Notes; (ii) in the
case of Legal Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that the Holders of the Notes will not recognize
income, gain or loss for Federal income tax purposes as a result of such Legal
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, which opinion will state that (A) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling to
such effect, or (B) since the Effective Date there has been a change in the
applicable Federal income tax laws or regulations to such effect; (iii) in the
case of Covenant Defeasance, the Company shall have delivered to the Trustee an
Opinion of Counsel confirming that the Holders of the Notes 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 time as would have been the case if
such Covenant Defeasance had not occurred; (iv) such Legal Defeasance or
Covenant Defeasance shall not result in a breach or violation of or constitute a
default under any material agreement or instrument to which the Company is a
party or by which it is bound; (v) the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that after the 91st day (or such
other applicable date) following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally; (vi) the Company shall
have delivered to the Trustee a CP Certificate stating that the deposit was not
made by the Company with the intent of preferring the Holders over the other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others; and (vii) the Company shall have
delivered to the Trustee a CP
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Certificate and an Opinion of Counsel, each stating that all conditions
precedent to such Legal Defeasance or Covenant Defeasance have been satisfied.
After such irrevocable deposit made pursuant to this Section 8.5 and
satisfaction of the other applicable conditions set forth in this Section 8.5,
the Trustee upon request shall acknowledge in writing the discharge of the
Company's obligations under this Indenture except for those surviving
obligations specified above.
The Trustee shall hold in trust Cash deposited with it pursuant to
this Section 8.5. It shall apply the deposited money through the Paying Agent
and in accordance with this Indenture to the payment of principal of, premium,
if any, and interest on the Notes.
SECTION 8.6. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money in accordance with Section 8.3 or Section 8.4 by reason of
any legal proceeding or of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to apply all such
money in accordance with this Article 8; provided, however, that if the Company
makes any payment of principal, premium, if any, or interest on the Notes
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Notes to receive such payment from the money
held by the Trustee or Paying Agent.
SECTION 8.7. Repayment to the Company. Subject to Section 7.7, the
Trustee and the Paying Agent shall promptly pay to the Company upon written
request any excess money (including money which becomes excess by reason of
conversions of Notes) held by them at any time. The Trustee and the Paying Agent
shall return to the Company upon written request any money held by them for the
payment of any amount with respect to the Notes that remains unclaimed for two
years after the date upon which such payment shall have become due; provided,
however, that the Trustee or such Paying Agent, before being required to make
such return, may, in the name and at the expense of the Company, cause to be
published once in The Wall Street Journal or a comparable daily newspaper of
national circulation or mail to each such Holder notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such mailing or publication, any unclaimed money then
remaining will be returned to the Company. After the unclaimed money is returned
to the Company, Holders entitled to the money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
SECTION 8.8. Survival of Holders' Conversion Rights and Company's
Obligation to Provide Reports. Notwithstanding anything to the contrary in this
Article 8, the right of Holders to convert any Notes held by them into Class A
Interests of the Company pursuant to Article 11 shall not be impaired or
terminated by reason of any Legal Defeasance or Covenant Defeasance but shall
continue in existence until the Stated Maturity Date of the Notes or the Notes
are redeemed or repurchased pursuant to Article 3.
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Notwithstanding anything to the contrary in this Article 8, the Company's
obligation to provide all reports under Section 4.2 shall continue after any
Legal Defeasance or Covenant Defeasance until the Stated Maturity Date of the
Notes or the Notes are redeemed pursuant to Article 3.
ARTICLE 9.
AMENDMENTS
SECTION 9.1. Without Consent of Holders. From time to time, the
Company and the Trustee, without notice to or the consent of the Holders of the
Notes, may amend or supplement this Indenture or the Notes as follows:
(1) to comply with Article 5 hereof;
(2) to cure any ambiguity or to correct or supplement any provision
herein that may be defective or inconsistent with any other provision herein;
provided that no such amendment or supplement shall adversely affect the
interests of the Noteholders in any respect; or
(3) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Section 11.4(c).
SECTION 9.2. With Consent of Holders. With the written consent of the
Holders of at least 66 2/3% of the then outstanding principal amount of the
Notes (excluding any Note then held by the Company or an Affiliate of the
Company), the Company and the Trustee may amend or supplement this Indenture or
the Notes or may waive any existing Default or future compliance by the Company
with any provisions of this Indenture or the Notes (other than a continuing
Default or Event of Default in the payment of principal, premium, if any, or
interest on the Notes). However, without the consent of each Noteholder
affected, a waiver or an amendment to this Indenture or the Notes may not (with
respect to any portion held by a non-consenting Holder of the Notes):
(1) reduce the percentage of principal amount of the Notes whose
Holders must consent to an amendment or waiver or to the rescission of an
acceleration of the Notes or increase the percentage of principal amount of the
Notes whose Holders must consent to any acceleration of the Notes; or
(2) make any change to the Stated Maturity Date or the time, currency
or amount of payment of the principal of, premium, if any, or any interest on,
the Notes or alter any of the redemption provisions or other provisions with
respect thereto; or
(3) waive a default in the payment of the principal of, premium, if
any, or interest on, the Notes, or in respect of conversion of a Note or in
connection with the making or consummation of a Special Offer; or
(4) make any change to this Section 9.2;
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(5) make any change to the provisions of this Indenture which
adversely affects the conversion right set forth in Article 11 hereof; or
(6) make any change to any definition which would have the effect of
making a change in items (1) through (5) above.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplement, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment or waiver under this Section 9.2 becomes effective,
the Company promptly shall mail or cause to be mailed to each Holder a notice
briefly describing the amendment or waiver. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such amendment or waiver.
SECTION 9.3. Supplemental Indentures. Every amendment to this
Indenture or the Notes shall be set forth in a supplemental indenture executed
pursuant to this Article 9 which shall comply with the TIA.
SECTION 9.4. Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, supplement, waiver or other action by Holders becomes
effective a consent to it or any other action by a Holder of the Notes hereunder
is a continuing consent by the Holder and every subsequent Holder of the Notes
or portion of the Notes that evidences the same obligation as the consenting
Xxxxxx's Notes or portion thereof, even if notation of the consent, waiver or
action is not made on the Notes. However, any such Holder or subsequent Holder
may revoke the consent, waiver or action as to such Holder's Notes or portion of
the Notes if the Trustee receives notice of revocation before the consent of the
requisite then outstanding principal amount of the Notes has been obtained and
becomes effective. After an amendment, supplement, waiver or action becomes
effective, it shall bind every Noteholder, except as provided in Section 9.2
hereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, notwithstanding the
first two sentences of the immediately preceding paragraph, those Persons who
were Holders at such record date (or their duly designated proxies), subject to
Section 9.7 and excluding Affiliates of the Company, and only those Persons,
shall be entitled to consent to such amendment, supplement or waiver or to
revoke any consent previously given, whether or not such Persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 30 days after such record date, unless consents from holders of the
then outstanding principal amount of the Notes required hereunder for such
amendment, supplement or waiver to be effective shall have also been given and
not revoked within such 30-day period.
SECTION 9.5. Notation on or Exchange of the Notes. Notes authenticated
and made available for delivery after the execution of any supplemental
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indenture pursuant to this Article 9 may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the reasonable judgment of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and made available for delivery by the Trustee in
exchange for the outstanding Notes.
SECTION 9.6. Trustee to Sign Supplemental Indentures. Upon the request
of the Company, the Trustee shall join with the Company in the execution of any
amendment or supplemental indenture authorized or permitted by the terms of this
Indenture but the Trustee shall not be obligated to execute any such amendment
or supplemental indenture which adversely affects its own rights, duties,
liabilities or immunities under this Indenture or otherwise. In signing such
amendment or supplemental indenture the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, a CP Certificate and Opinion of
Counsel stating that such amendment or supplemental indenture is authorized or
permitted by this Indenture.
SECTION 9.7. Effect of Amendments and Supplemental Indentures. Upon
the execution of any amendment or supplemental indenture under this Article 9,
this Indenture shall be modified in accordance therewith, and such amendment or
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of the Notes theretofore or thereafter authenticated and made
available for delivery hereunder shall be bound thereby.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by operation of
subsection (c) of Section 318 of the TIA, the imposed duties shall control. The
provisions of Sections 310 to 317, inclusive, of the TIA that impose duties on
any Person (including provisions automatically deemed included in an indenture
unless the indenture provides that such provisions are excluded) are a part of
and govern this Indenture, except as, and to the extent, expressly excluded from
this Indenture, as permitted by the TIA.
SECTION 10.2. Notices. Any notice, request or communication shall be
in writing and delivered (i) in Person or mailed by first-class mail, postage
prepaid, or (ii), in the case of notices to the Company, by telecopy (with the
original delivered by mail immediately thereafter) addressed as follows:
if to the Company:
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WORLD FINANCIAL PROPERTIES, L.P.
c/o World Financial Properties, Inc.
One Liberty Plaza
New York, New York 1______
Telephone: _______________
Telecopy: ________________
Attention: ______________________
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Department Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Noteholder shall be mailed to
the Noteholder at the Noteholder's address as it appears on the Register and
shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Noteholders, it
shall simultaneously mail a copy to the Trustee and each Registrar and Paying
Agent.
SECTION 10.3. Communication by Noteholder with Other Noteholders.
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar, the Paying Agent and anyone else shall have
the protection of TIA Section 312(c).
SECTION 10.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) a CP Certificate stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 10.5. Statements Required in Certificate or Opinion. Each CP
Certificate and Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each Person making such CP Certificate or Opinion
of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such CP
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he has made
such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement that, in the opinion of such Person, such covenant or
condition has been complied with; provided, however, that with respect to
matters of fact, an Opinion of Counsel may rely on a CP Certificate or
certificates of public officials.
SECTION 10.6. Severability Clause. In case any provision in this
Indenture or in the Notes 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 10.7. Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Noteholders.
The Registrar and Paying Agent may make reasonable rules for their functions.
SECTION 10.8. Legal Holidays. A "Legal Holiday" is any day other than
a Business Day. If any specified date (including a date for giving notice but
excluding any record date) is a Legal Holiday, the action shall be taken on the
next succeeding Business Day, and, if the action to be taken on such date is a
payment in respect of the Notes, no principal, premium, if any, or interest
installment shall accrue for the intervening period; provided, however, that if
such payment is in respect of principal then interest shall continue to accrue
thereon until the date such payment is actually made.
SECTION 10.9. Governing Law; Submission to Jurisdiction. THIS
INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO INSTRUMENTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS. The Company hereby irrevocably submits to the
jurisdiction of any New York State or United States Federal court sitting in New
York City over any action or proceeding arising out of or relating to this
Indenture or the Notes and the Company hereby irrevocably agrees that all claims
in respect of such action or proceeding may be heard and determined in such New
York State or Federal court. The Company agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by
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suit on the judgment or in any other manner provided by law. The Company further
waives any objection to venue in such State on the basis of forum non
conveniens. The Company agrees that any action or proceeding brought against the
Trustee or any Noteholder shall be brought only in a New York State or United
States Federal court sitting in New York City.
Nothing in this Section 10.9 shall affect the right of the Trustee or
any Noteholder to serve legal process in any other manner permitted by law or
affect the right of the Trustee or any Noteholder to bring any action or
proceeding against the Company or its property in the courts of any other
jurisdictions.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether from
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, the Company
hereby irrevocably waives such immunity in respect of its obligations under the
Indenture and the Notes.
SECTION 10.10. Indenture Controls. Notwithstanding anything to the
contrary contained in the Plan or the Order of the Bankruptcy Court confirming
the Plan, if there is any conflict or inconsistency between the terms and
provisions of the Plan or such Order and this Indenture, the terms and
provisions of this Indenture shall control as among the Company, the Noteholders
and the Trustee.
SECTION 10.11. Successors. All agreements of the Company in this
Indenture and the Notes shall bind its successors and assigns. All agreements of
the Trustee in this Indenture shall bind its successor and assigns.
SECTION 10.12. Multiple Originals; Counterparts. The parties may sign
any number of copies of this Indenture in counterparts. Each signed copy shall
be an original, but all of them together represent the same agreement. One
signed copy is enough to prove this Indenture.
ARTICLE 11.
CONVERSION OF NOTES
SECTION 11.1. Conversion Privilege and Conversion Price. Subject to
and upon compliance with the provisions of this Article, at the option of the
Holder thereof, any Note or any portion of the principal amount thereof which is
$1,000 or an integral multiple of $1,000 may be converted at the principal
amount thereof, or of such portion thereof, plus accrued and unpaid interest
thereon through the relevant date of conversion into Class A Interests
(calculated to the nearest 1/10,000th of a Class A Interest, with 5/100,000ths
of a Class A Interest being considered as nearer to the next highest 1/10,000th
of a Class A Interest) at the Conversion Price (as hereinafter defined),
determined as hereinafter provided, in effect at the time of conversion. In case
a Note or portion thereof is called for redemption pursuant to Section 3.1, such
conversion right in respect of the Note or portion so called shall expire at the
close of business on the Redemption Date, unless the Company defaults in making
the payment due upon such redemption.
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The price at which Class A Interests shall be delivered upon
conversion (the "Conversion Price") shall initially be $______ per Class A
Interest, and shall be adjusted from time to time as provided herein, including,
without limitation, pursuant to Section 11.4.
SECTION 11.2. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Notes to be converted shall
surrender such Notes, accompanied by written notice, to the Conversion Agent at
the office of the Conversion Agent or, if less than the entire principal amount
thereof is to be converted, the portion thereof to be converted. Notes
surrendered for conversion during the period from the close of business on any
regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (unless such Notes have been called
for redemption on a Redemption Date within such period) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment Date
on the principal amount of Notes being surrendered or delivered for conversion,
as the case may be. Except as provided in the immediately preceding sentence or
in Section 11.1, no other adjustment shall be made for accrued interest on a
converted Note.
Within the Business Day on which any Notes and executed Conversion
Notice are received by the Conversion Agent, the Conversion Agent shall:
(i) notify the Company by facsimile transmission and send by
facsimile transmission a copy of such facsimile (unless the Conversion
Agent with which the Note is deposited is itself the Trustee) to the
Trustee, of the following: (a) the principal amounts of all Notes
deposited on the same occasion by the same Holder which are to be
converted, the number of Class A Interests deliverable upon conversion
and the name and address of such Holder as it appears in the Register
and (b) the date such Notes and the related executed Conversion Notice
were received by it (the "Conversion Date") and the Conversion Price in
respect of such conversion;
(ii) cancel all Notes delivered with such Conversion Notice
and (unless the relevant Conversion Agent is also the Trustee) dispatch
such cancelled Notes promptly to or to the order of the Trustee
together with a certificate stating the serial numbers (if applicable)
of the Notes so delivered; and
(iii) dispatch as soon as practicable and in any event within
three days after satisfaction by the Holder of all conditions precedent
to conversion to the Company, the Conversion Notice and, to the Trustee
(unless the relevant Conversion Agent is also the Trustee), a copy
thereof.
Notes shall be deemed to have been converted immediately prior to the
close of business on the day of surrender of such Notes to the Conversion Agent
for conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Notes as Holders shall cease, and the person or
persons entitled to receive the Class A Interests, issuable upon conversion
shall be treated for all purposes as the record holder or holders of such Class
A Interests at such time. As promptly as practicable on or after the Conversion
Date, but in no event more than three Business Days after the Conversion Date,
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the Company shall issue and shall deliver at the office of the Conversion Agent
a certificate or certificates for the number of Class A Interests (including
fractional Interests) issuable upon conversion; provided, however, that if the
Company reasonably determines in good faith that applicable law requires the
Company to withhold any taxes otherwise payable by a Holder in connection with
the exercise of the conversion privilege, the Company shall give prompt written
notice of such determination to such Holder and such Holder shall be obligated
to fund such tax withholding.* In the event that such Holder does not fund such
tax withholding within fifteen (15) Business Days of receipt of a written demand
for such funding by the Company, the amount of such tax withholding shall be
deemed to be a Withholding Advance (as such term is defined in the Partnership
Agreement as in effect on the date hereof) and the Company shall have all of the
rights and remedies in respect of such Withholding Advance as are provided in
Section 7.12(b) of the Partnership Agreement as in effect on the date hereof.
Upon request by a Holder in advance of any conversion, the Company shall notify
such Holder, within a reasonable period of time, of its determination to
withhold any taxes in connection with any conversion by such Holder.
In the case of any Note which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Note or
Notes of authorized denominations in aggregate principal amount equal to the
unconverted portion of the principal amount of such Note in the case of
certificated Notes.
SECTION 11.3. Intentionally Deleted.
SECTION 11.4. Adjustment of Conversion Price. The Conversion Price and
the kind of Equity Interests issuable upon Conversion of Notes shall be subject
to adjustment as set forth below in this Section 11.4. The Company shall give
Holders notice of any event described below which requires an adjustment
pursuant to this Section 11.4 in accordance with the provisions of Section 11.5.
(a) Distributions, Subdivisions and Combinations. If at any
time the Company shall (i) fix a record date for the purpose of
determining the holders of Class A Interests entitled to receive a
distribution of Partnership Interests; (ii) subdivide its outstanding
Partnership Interests into a larger number of Partnership Interests;
(iii) combine its outstanding Partnership Interests into a smaller
number of Partnership Interests; or (iv) issue any other Equity
Interests by reclassification of the Partnership Interests (other than
pursuant to Section 11.4(c) below); then the Conversion Price shall be
proportionately decreased in the case of such a distribution of
Partnership Interests or such a subdivision, or proportionately
increased in the case of such a combination, or the kind of Equity
Interests of the Company which may be purchased shall be adjusted in
the case of such a reclassification of the Partnership Interests, each
on the record date for such distribution or effective date of such
--------
* [Xxxxxx to suggest language for form of Conversion Notice to the extent
necessary to provide for admission of the converting Holder as a
Limited Partner and for agreement of converting Holder to be bound by
Partnership Agreement as a Limited Partner.]
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subdivision, combination or reclassification, as the case may be, such
that each Holder shall be entitled to receive, upon conversion of the
Notes held by such Holder, the aggregate number and kind of Partnership
Interests which, if such Notes had been fully converted immediately
prior to such date, it would have owned upon such conversion and been
entitled to receive by virtue of such distribution, subdivision,
combination or reclassification.
(b) Certain Other Distributions. If at any time the Company
shall fix a record date for the purpose of determining the holders of
Class A Interests entitled to receive any distribution (including any
such distribution made in connection with a consolidation or merger,
but excluding any distribution referred to in Section 11.4(a)) of:
(i) any evidences of indebtedness, any Equity
Interests of the Company (including Convertible Securities but
excluding Partnership Interests) or any other securities or
property of any nature whatsoever (including cash but
excluding normal cash distributions permitted under applicable
law so long as in each case such cash is payable solely out of
earnings or undistributed income of the Company); or
(ii) any warrants or other rights to subscribe for or
purchase any evidences of its indebtedness, any Equity
Interests of the Company (including Convertible Securities) or
any other of its securities or its property of any nature
whatsoever;
then the Conversion Price shall be adjusted to equal the Conversion
Price in effect prior to such distribution multiplied by a fraction,
(x) the numerator of which shall be (A) the Current Market Price of one
Class A Interest on such record date minus (B) the amount allocable to
one Class A Interest of the fair value of any and all such evidences of
indebtedness, Equity Interests, other securities or property or
warrants or other subscription or purchase rights so distributable (as
determined in good faith by the Controlling Partner(s) and supported by
an opinion from an investment banking firm of nationally recognized
standing), and (y) the denominator of which shall be such Current
Market Price of one Class A Interest. Such adjustments shall be made
whenever such a record date is fixed. A reclassification of Class A
Interests into Partnership Interests and other Equity Interests of the
Company shall be deemed a distribution by the Company to the holders of
Class A Interests of such other Equity Interests within the meaning of
this Section 11.4(b) and, if the outstanding Class A Interests shall be
changed into a larger or smaller number of Partnership Interests as a
part of such reclassification, such change shall be deemed a
subdivision or combination, as the case may be, of the outstanding
Class A Interests within the meaning of Section 11.4(a).
(c) Adjustments for Consolidation, Merger, Sale of Assets,
Reorganization, etc. (i) In case the Company after the date hereof (w)
shall consolidate with or merge into any other Person and shall not be
the continuing or surviving Person of such consolidation or merger, or
(x) shall permit any other Person to consolidate with
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or merge into the Company and the Company shall be the continuing or
surviving Person but, in connection with such consolidation or merger,
the Class A Interests shall be changed into or exchanged for Equity
Interests or other securities of the Company or any other Person or
cash or any other property, or (y) shall transfer all or substantially
all of its properties or assets to any other Person, or (z) shall
effect a capital reorganization or reclassification of the Class A
Interests (other than a capital reorganization or reclassification for
which adjustment in the Conversion Price is provided in Section 11.4(a)
or Section 11.4(b)), then, and in the case of each such transaction,
proper provision shall be made so that, upon the basis and the terms
and in the manner provided herein, each Holder shall be entitled upon
the conversion of Notes at any time after the consummation of such
transaction, to the extent such Notes are not converted prior to such
transaction, to receive at the Conversion Price in effect at the time
immediately prior to the consummation of such transaction in lieu of
the Class A Interests issuable upon such conversion prior to such
transaction the Equity Interests and other securities, cash and
property to which such Holder would have been entitled upon the
consummation of such transaction if such Holder had converted such
Notes immediately prior thereto, subject to adjustments (subsequent to
such action) as nearly equivalent as possible to the adjustments
provided for in this Section 11.4.
(ii) Notwithstanding anything contained herein to the
contrary, the Company will not effect any of the transactions described
in clauses (w) through (z) of Section 11.4(c)(i) unless, prior to the
consummation thereof, the surviving Person (if other than the Company)
in any merger or consolidation described in such clauses, each Person
which acquires the Company's assets in any transaction described in
clause (y) above, and each Person (other than the Company) which may be
required to deliver any Equity Interests, securities, cash or property
upon the conversion of the Notes as provided herein, shall assume, by
written instrument delivered to, and reasonably satisfactory to, the
Trustee, the obligations of the Company hereunder to deliver to Holders
such Equity Interests, securities, cash or property as such Holders
shall be entitled to receive upon conversion of the Notes (and if the
Company shall survive the consummation of such transaction, such
assumption shall be in addition to, and shall not release the Company
from, any continuing obligations of the Company hereunder), and such
Person shall have similarly delivered to the Trustee, an Opinion of
Counsel stating that this Indenture shall thereafter continue in full
force and effect and the terms hereof (including, without limitation,
all of the provisions of this Section 11.4) shall be applicable to the
Equity Interests, securities, cash or property which such Person may be
required to deliver upon any conversion of Notes pursuant hereto.
(d) Issuance of Partnership Interests, Warrants or other
Rights. If at any time the Company shall issue or sell to any Person
any Additional Partnership Interests or warrants or other similar
rights to subscribe for or purchase any Additional Partnership
Interests or Convertible Securities, whether or not the rights to
exchange or convert thereunder are immediately exercisable (but
excluding any distributions for which an adjustment is to be made
pursuant to Sections 11.4(a) or 11.4(b) above), and the price per
Additional Partnership Interest or for which such
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Additional Partnership Interests are issuable upon the exercise of such
warrants or other rights or upon conversion or exchange of such
Convertible Securities shall be less than the Current Market Price per
Partnership Interest then in effect, or without consideration, then the
Conversion Price upon each such issuance shall be adjusted to the
lesser of (x) the Conversion Price that would be in effect in the
absence of the adjustment provided for in this Section 11.4(d) and (y)
that price, which shall be determined by multiplying the Conversion
Price by a fraction:
(1) the numerator of which shall be the
number of Partnership Interests outstanding
immediately prior to the issuance of such Additional
Partnership Interests plus the number of Partnership
Interests which the aggregate consideration for the
total number of such Additional Partnership Interests
so issued would purchase at the Current Market Price
therefor then in effect, and
(2) the denominator of which shall be the
number of Partnership Interests outstanding
immediately after the issuance of such Additional
Partnership Interests.
In the case of the issuance or sale of warrants or other rights or
Convertible Securities, any adjustment under this Section 11.4(d) shall
be made on the basis that (i) the maximum number of Additional
Partnership Interests issuable pursuant to all such warrants or other
similar rights or necessary to effect the conversion or exchange of all
such Convertible Securities shall be deemed to have been issued and
outstanding, (ii) the price per Additional Partnership Interest shall
be deemed to be the lowest possible price per Partnership Interest in
any range of prices per Partnership Interest at which such Additional
Partnership Interests are available to such holders, and (iii) the
Company shall be deemed to have received all of the consideration
payable therefor, if any, as of the date of the actual issuance of such
warrants or other similar rights. No further adjustments of the
Conversion Price shall be made upon the actual issue of such
Partnership Interests upon exercise of such warrants or other similar
rights or upon the actual issue of such Partnership Interests upon such
conversion or exchange of such Convertible Securities. For the purposes
of this Section 11.4(d), the date as of which the Current Market Price
of Partnership Interests shall be computed shall be the earliest of (x)
the date on which the Company shall enter into a firm contract for the
issuance of such warrants or other similar rights or (y) the date of
actual issuance of such warrants or other similar rights. Such
adjustments shall be made upon the date of the issuance or sale of such
warrants or other similar rights.
(e) Issuance of Convertible Securities. If at any time the
Company shall issue or sell to any Person any Convertible Securities
(other than securities distributed in a transaction described in
Sections 11.4(a), 11.4(b) or 11.4(d) above), whether or not the rights
to exchange or convert thereunder are immediately exercisable, the
price per Partnership Interest for which Partnership Interests are
issuable upon such conversion or exchange shall be less than the
Current Market Price per Partnership Interest then in effect on the
date of such issuance or sale or if, after any such
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issuance or sale, the price per Partnership Interest for which
Additional Partnership Interests may be issuable thereafter is amended,
and such price as so amended shall be less than the Current Market
Price in effect at the time of such amendment, then the Conversion
Price upon each such issuance or amendment shall be adjusted (if such
adjustment would result in a lower Conversion Price than would be in
effect in the absence of the adjustment provided for in this Section
11.4(e)) as provided in Section 11.4(d) above on the basis that (i) the
maximum number of Additional Partnership Interests necessary to effect
the conversion or exchange of all such Convertible Securities shall be
deemed to have been issued and outstanding, (ii) the price per
Additional Partnership Interest shall be deemed to be the lowest
possible price in any range of prices at which such Additional
Partnership Interests are available to such holders, and (iii) the
Company shall be deemed to have received all of the consideration
payable therefor, if any, as of the date of actual issuance of such
Convertible Securities. No adjustment of the Conversion Price shall be
made under this Section 11.4(e) upon the issuance of any Convertible
Securities which are issued pursuant to the exercise of any warrants or
other subscription or purchase rights therefor, if any such adjustment
shall previously have been made upon the issuance of such warrants or
other rights pursuant to Section 11.4(d). No further adjustments of the
Conversion Price shall be made upon the actual issue of such
Partnership Interests upon conversion or exchange of such Convertible
Securities and, if any issue or sale of such Convertible Securities is
made upon exercise of any warrant or other right to subscribe for or to
purchase any such Convertible Securities for which adjustments of the
Conversion Price have been or are to be made pursuant to other
provisions of this Section 11.4, no further adjustments of the
Conversion Price shall be made by reason of such issue or sale. For the
purposes of this Section 11.4(e), the date as of which the Current
Market Price of Partnership Interests shall be computed shall be the
earlier of (x) the date on which the Company shall enter into a firm
contract for the issuance of such Convertible Securities or (y) the
date of actual issuance of such Convertible Securities. Such
adjustments shall be made upon each issuance or amendment of
Convertible Securities and shall become effective immediately after
such issuance or amendment.
(f) Superseding Adjustment. If, at any time after any adjustment to
the Conversion Price shall have been made pursuant to Section 11.4(d) or 11.4(e)
above as the result of any issuance of warrants, rights or Convertible
Securities, and either
(i) such warrants or rights, or the right of
conversion or exchange of any other Convertible Securities,
shall expire, and all or a portion of such warrants or rights,
or the right of conversion or exchange with respect to all or
a portion of such other Convertible Securities, as the case
may be, shall not have been exercised; or
(ii) the consideration per Partnership Interest for
which Partnership Interests are issuable pursuant to such
warrants or rights, or the terms of such other Convertible
Securities, shall be increased solely by virtue of provisions
therein contained for an automatic increase in such
consideration per Partnership Interest upon the occurrence of
a specified date or event;
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then such previous adjustment shall be rescinded and annulled
and the Additional Partnership Interests which were deemed to
have been issued by virtue of the computation made in
connection with the adjustment so rescinded and annulled shall
no longer be deemed to have been issued by virtue of such
computation. Thereupon, a re-computation shall be made of the
effect of such rights or options or other Convertible
Securities on the Conversion Price on the basis of
(iii) treating the number of Additional Partnership
Interests or other property, if any, theretofore actually
issued or issuable pursuant to the previous exercise of any
such warrants or rights or any such right of conversion or
exchange, as having been issued on the date or dates of any
such exercise and for the consideration actually received and
receivable therefor (including all amounts received in respect
of the issuance or continuance of the validity of such
warrants or rights or any such right of conversion or
exchange); and
(iv) treating any such warrants or rights or any such
other Convertible Securities which then remain outstanding as
having been granted or issued immediately after the time of
such increase of the consideration per Partnership Interest
for which Partnership Interests are issuable under such
warrants or rights or other Convertible Securities.
(g) When Adjustments To Be Made. No adjustment in the Conversion Price
shall be required by this Section 11.4 if such adjustment either by itself or
with other adjustments not previously made would require an increase or decrease
of less than 1% in such price. Any adjustment representing a change of less than
such minimum amount which is postponed shall be carried forward and made as soon
as such adjustment, together with other adjustments required by this Section
11.4 and not previously made, would result in a minimum adjustment.
Notwithstanding the foregoing, any adjustment carried forward shall be made no
later than ten Business Days prior to the earlier of the Stated Maturity Date
and any Redemption Date. All calculations under this Section 11.4(g) shall be
made to the nearest cent. For the purpose of any adjustment, any specified event
shall be deemed to have occurred at the close of business on the date of its
occurrence.
(h) When Adjustments Not Required. If the Company shall fix a record
date for the purpose of determining the holders of Class A Interests entitled to
receive a distribution and shall, thereafter and before the distribution to such
holders thereof, legally abandon its plan to pay or deliver such distribution,
then thereafter no adjustment shall be required by reason of the taking of such
record and any such adjustment previously made in respect thereof shall be
rescinded and annulled.
(i) Other Action Affecting Class A Interests. In case after the date
hereof the Company shall take any action affecting Class A Interests other than
an action described in this Section 11.4, and the failure to make any adjustment
would not fairly protect the conversion rights contemplated hereby in accordance
with the
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essential intent and principle of this Section 11.4, then the
Conversion Price shall be adjusted in such manner and at such time as
shall be equitable in the circumstances.
SECTION 11.5. Notice of Adjustments of Conversion Price. Whenever the
Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price in
accordance with Section 11.4 and shall prepare a CP Certificate setting
forth the adjusted conversion price and showing in reasonable detail
the facts upon which such adjustment is based, and such certificate
shall forthwith be filed at each office or agency maintained for the
purpose of conversion of Notes; and
(b) such CP Certificate and a notice stating that the
Conversion Price has been adjusted and setting forth the adjusted
Conversion Price shall, as soon as practicable, be mailed by the
Company to all Holders at their last addresses as they appear in the
Register.
SECTION 11.6. Notice of Certain Partnership Action. In case:
(a) the Company shall declare any distribution on its Class A
Interests (including cash but excluding normal cash distributions
(other than the first cash distribution paid by the Company) permitted
under applicable law so long as in each case such cash is payable
solely out of earnings or undistributed income of the Company); or
(b) the Company shall authorize the granting to holders of its
Class A Interests of rights to subscribe for or to purchase any Equity
Interests; or
(c) of any reclassification of the Class A Interests of the
Company, or of any consolidation or merger to which the Company is a
party, or the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Notes, and shall cause to be
mailed to all Holders at their last addresses as they shall appear in the
Register, at least 20 days (or 10 days in any case specified in clause (a) or
(b) above) prior to the applicable record date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
distribution or rights or, if a record is not to be taken, the date as of which
the holders of Partnership Interests of record to be entitled to such
distribution or rights are to be determined, or (y) the date on which such
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up is expected to become effective, and the date as of
which it is expected that holders of Class A Interests of record shall be
entitled to exchange their Class A Interests for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
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Failure to give the notice requested by this Section or any defect therein shall
not affect the legality or validity of any distribution, right,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, or the vote upon any such action.
SECTION 11.7. Issuance of Class A Interests. The Company covenants
that all Class A Interests which may be issued upon conversion of Notes will
upon issue be duly and validly issued and fully paid and nonassessable and,
except as provided in Section 11.8, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
SECTION 11.8. Taxes on Conversions. The Company will pay any and all
taxes (other than withholding taxes referred to in the penultimate paragraph of
Section 11.2 and taxes based on the income of the Holder of the Note or Notes
being converted or of the Person in whose name the Class A Interests issued and
delivered on such conversion are issued) that may be payable in respect of the
issue or delivery of Class A Interests on conversion of Notes pursuant hereto.
The Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of Class A
Interests in a name other than that of the Holder of the Note or Notes to be
converted, and no such issue or delivery shall be made unless and until the
person requesting such issue has paid to the Company the amount of any such tax,
or has established to the satisfaction of the Company that such tax has been
paid.
SECTION 11.9. Responsibility of Trustee. Neither the Trustee, subject
to the provisions of Section 7.1, nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder to determine whether any facts
exist which may require any adjustment of the Conversion Price, or with respect
to the nature or extent of any such adjustment when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent makes
any representation or shall be accountable with respect to the validity or value
(or the kind or amount) of any Class A Interests, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of
any Note. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to make any cash payment or to issue, transfer or
deliver any Class A Interests or stock certificates or other securities or
property upon the surrender of any Note for the purpose of conversion; and
neither the Trustee, subject to the provisions of Section 7.1, nor any
Conversion Agent shall be responsible for any failure of the Company to comply
with any of the covenants of the Company contained in this Article.
ARTICLE 12.
REPRESENTATIONS AND WARRANTIES
The Company hereby makes the following representations and warranties
for the benefit of the Trustee and the Holders in connection with the issuance
of the Notes hereunder. The following representations and warranties shall be
true as of the Effective Date.
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SECTION 12.1. Corporate/Partnership Status. Each of the Company, each
Significant Subsidiary of the Company and each Controlling Partner (a) is a duly
organized and validly existing corporation (in the case of the Controlling
Partners and Significant Subsidiaries of the Company that are corporations) or
partnership (in the case of the Company and Significant Subsidiaries of the
Company that are partnerships) in good standing under the laws of the
jurisdiction of its incorporation or formation, (b) has all requisite corporate
or partnership power and authority, as the case may be, to own its property and
assets and to transact the business in which it is engaged or presently proposes
to engage and (c) is duly qualified and authorized to do business and is in good
standing as a foreign corporation or foreign partnership, as the case may be, in
every jurisdiction where the failure to be so qualified would result in a
Material Adverse Effect.
SECTION 12.2. Corporate/Partnership Power and Authority. Each of the
Company and each Controlling Partner has all requisite corporate or partnership
power and authority, as the case may be, to execute, deliver and carry out the
terms and provisions of the Indenture and the Notes issued thereunder to which
it is a party and has taken all necessary corporate or partnership action, as
the case may be, to authorize the execution, delivery and performance by it of
the Indenture and the execution and the authentication by the Trustee of the
Notes. A Controlling Partner has duly executed and delivered the Indenture and
the Notes on behalf of the Company, and each of the Indenture and the Notes
constitutes the Company's legal, valid and binding obligation, enforceable in
accordance with its terms, except as enforceability may be limited by applicable
insolvency, bankruptcy or similar laws affecting creditors' rights generally, or
general principles of equity, whether such enforceability is considered in a
proceeding in equity or at law.
SECTION 12.3. No Violation. Neither the execution, delivery or
performance by the Company or any Controlling Partner of the Indenture and the
Notes, nor the compliance by any such Person with the terms and provisions
hereof and thereof, (a) will contravene any applicable provision of any law,
statute, rule, regulation, order, writ, injunction or decree of any court or
governmental instrumentality, other than any of the foregoing which would not
result in a Material Adverse Effect, or (b) will conflict with or result in any
breach of, or constitute a default under or result in breach of, any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the Company (or of any
Controlling Partner or any Subsidiary of the Company) pursuant to the terms of,
any indenture, mortgage, loan agreement, note, lease or other agreement,
document or instrument to which the Company, any Controlling Partner or any
Subsidiary of the Company is a party or by which any of them may be bound or to
which any of their respective properties may be subject, other than any of the
foregoing which would not result in a Material Adverse Effect, or (c) will, with
respect to the Company or any Controlling Partner or any Subsidiary of the
Company that is a partnership, violate any provisions of the partnership
agreement of such Person (or the partnership agreement of any partnership of
which such Person is a partner), or (d) will, with respect to any Controlling
Partner or any Significant Subsidiary of the Company that is a corporation,
violate any provision of its Certificate of Incorporation or By-Laws.
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SECTION 12.4. Class A Interests Issuable upon Conversion of Notes. The
Company has authorized the creation, and no payments are required to be made to
the Company in connection with the issuance, of Class A Interests upon
conversion of Notes.
SECTION 12.5. Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection with
(i) the execution, delivery and performance of the Indenture or the issuance of
the Notes or (ii) the legality, validity, binding effect or enforceability of
the Indenture or the Notes, except for those listed on Schedule II, each of
which has been duly obtained or completed.
SECTION 12.6. Investment Company Act; Public Utility Holding Company
Act. None of the Company, any Controlling Partner or any Subsidiary of the
Company is (x) an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended, (y) a "holding company" or a "subsidiary company" of a "holding
company" or an "affiliate" of either a "holding company" or a "subsidiary
company" within the meaning of the Public Utility Holding Company Act of 1935,
as amended, or (z) subject to any other federal or state law or regulation which
purports to restrict or regulate its ability to borrow money.
SECTION 12.7. Corporate/Partnership Structure; Capitalization.
Schedule III hereto sets forth, as of immediately following the effectiveness of
the transactions to be consummated on the Effective Date pursuant to the Plan, a
complete list of (a) all Affiliates of the Company or any Subsidiary of the
Company that are known to the Company to have any record or beneficial interest
in any of the Notes, (b) all Subsidiaries of the Company, (c) each holder of an
Equity Interest in the Company or in any Subsidiary of the Company and the
interest so held, (d) all Indebtedness secured by any Core Property and all
guarantees of such Indebtedness; and (e) all Subsidiary Owners with respect to
each Core Property, all persons having any Equity Interest in each Subsidiary
Owner with respect to each Core Property and, in each case, the amount of such
Equity Interest. A true and correct copy of the Partnership Agreement (as in
effect on the date hereof) has been delivered to the Trustee.
SECTION 12.8. No Default. None of the Company, any Controlling Partner
or any Subsidiary of the Company is in default in any material respect beyond
any applicable grace period under or with respect to any material agreement,
instrument or undertaking to which it is a party or by which it or any of its
property is bound in any respect, the existence of which default would result in
a Material Adverse Effect.
SECTION 12.9. Licenses, etc. The Company, the Controlling Partners and
the Subsidiaries of the Company have obtained and hold in full force and effect,
all material franchises, licenses, permits, certificates, authorizations,
qualifications, accreditation, easements, rights of way and other rights,
consents and approvals which are necessary for the operation of the Core
Properties and their respective businesses as presently conducted.
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SECTION 12.10. Compliance with Law. The Company, the Controlling
Partners and the Subsidiaries of the Company are in compliance with all laws,
rules, regulations, orders, judgments, writs and decrees, noncompliance with
which would result in a Material Adverse Effect.
SECTION 12.11. Capital Infusion. The Company has received from the
Co-Proponents or their Affiliates on the Effective Date an aggregate capital
contribution of $75 million in Cash.
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SIGNATURES
IN WITNESS WHEREOF, the undersigned , being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
WORLD FINANCIAL CENTER
PROPERTIES, L.P.
By: World Financial Properties, Inc.
its Managing General Partner
By:
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
Name:
Title:
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