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EXHIBIT 4.1
AMB PROPERTY, L.P.,
AMB Property Corporation,
as Parent Guarantor
Certain Subsidiaries of AMB PROPERTY, L.P., now or in the future, parties hereto
as Subsidiary Guarantors
and
State Street Bank and Trust Company of California, N.A.
as Trustee
-----------------------------
Unsecured Senior Notes
Guarantees
-----------------------------
Indenture
Dated as of ________, 1998
-----------------------------
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TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.....................................................2
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS...........................11
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.........................12
SECTION 104. ACTS OF HOLDERS................................................13
SECTION 105. NOTICES, ETC., TO TRUSTEE AND OPERATING PARTNERSHIP............14
SECTION 106. NOTICE TO HOLDERS; WAIVER......................................14
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................14
SECTION 108. SUCCESSORS AND ASSIGNS.........................................15
SECTION 109. SEPARABILITY CLAUSE............................................15
SECTION 110. BENEFITS OF INDENTURE..........................................15
SECTION 111. GOVERNING LAW..................................................15
SECTION 112. LEGAL HOLIDAYS.................................................15
SECTION 113. COUNTERPARTS...................................................15
ARTICLE TWO
NOTE FORMS
SECTION 201. FORMS OF NOTES.................................................15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION............................................16
SECTION 203. NOTES ISSUABLE IN GLOBAL FORM..................................16
ARTICLE THREE
THE NOTES
SECTION 301. AMOUNT LIMITED; ISSUABLE IN SERIES.............................17
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SECTION 302. DENOMINATIONS..................................................18
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY
AND DATING................................................18
SECTION 304. TEMPORARY NOTES................................................19
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE............20
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES....................22
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED.................................................23
SECTION 308. PERSONS DEEMED OWNERS..........................................24
SECTION 309. CANCELLATION...................................................24
SECTION 310. COMPUTATION OF INTEREST........................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE........................25
SECTION 402. APPLICATION OF TRUST FUNDS.....................................26
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT..............................................26
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.............28
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE................................................29
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM...............................29
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF NOTES.......................................30
SECTION 506. APPLICATION OF MONEY COLLECTED.................................30
SECTION 507. LIMITATION ON SUITS............................................31
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SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM,
IF ANY, AND INTEREST......................................31
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.............................32
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.................................32
SECTION 511. DELAY OR OMISSION NOT WAIVER...................................32
SECTION 512. CONTROL BY HOLDERS OF NOTES....................................32
SECTION 513. WAIVER OF PAST DEFAULTS........................................32
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS........................33
SECTION 515. UNDERTAKING FOR COSTS..........................................33
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS.............................................33
SECTION 602. CERTAIN RIGHTS OF TRUSTEE......................................34
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES..............35
SECTION 604. MAY HOLD NOTES.................................................35
SECTION 605. MONEY HELD IN TRUST............................................35
SECTION 606. COMPENSATION AND REIMBURSEMENT.................................36
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS.................................................36
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............37
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................38
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS....39
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT............................39
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OPERATING PARTNERSHIP
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES
OF HOLDERS................................................41
SECTION 702. REPORTS BY TRUSTEE.............................................41
SECTION 704. OPERATING PARTNERSHIP TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS................................................41
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF OPERATING
PARTNERSHIP AND SALES, LEASES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN
CONDITIONS................................................42
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.....................42
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL...................42
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS................................................43
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS................44
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES...........................45
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES..............................45
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT............................45
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL
INDENTURES................................................45
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST............45
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY................................45
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SECTION 1003. MONEY FOR NOTES PAYMENTS TO BE HELD
IN TRUST..................................................46
SECTION 1004. AGGREGATE DEBT TEST............................................47
SECTION 1005. DEBT SERVICE TEST..............................................48
SECTION 1006. SECURED DEBT TEST..............................................48
SECTION 1007. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS.......................49
SECTION 1008. EXISTENCE......................................................49
SECTION 1009. MAINTENANCE OF PROPERTIES......................................49
SECTION 1010. INSURANCE......................................................49
SECTION 1011. PAYMENT OF TAXES AND OTHER CLAIMS..............................49
SECTION 1012. PROVISION OF FINANCIAL INFORMATION.............................50
SECTION 1013. WAIVER OF CERTAIN COVENANTS....................................50
SECTION 1014. STATEMENT AS TO COMPLIANCE.....................................51
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. APPLICABILITY OF ARTICLE.......................................51
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................51
SECTION 1103. SELECTION BY TRUSTEE OF NOTES TO BE
REDEEMED..................................................51
SECTION 1104. NOTICE OF REDEMPTION...........................................52
SECTION 1105. DEPOSIT OF REDEMPTION PRICE....................................53
SECTION 1106. NOTES PAYABLE ON REDEMPTION DATE...............................53
SECTION 1107. NOTES REDEEMED IN PART.........................................53
ARTICLE TWELVE
RESET PUT SECURITIES
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ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. OPERATING PARTNERSHIP'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE.........................53
SECTION 1202. DEFEASANCE AND DISCHARGE.......................................54
SECTION 1203. COVENANT DEFEASANCE............................................54
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE................54
SECTION 1205. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS
TO BE HELD IN TRUST; OTHER MISCELLANEOUS
PROVISIONS................................................56
SECTION 1206. REINSTATEMENT..................................................57
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF NOTES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED......................57
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.............................57
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS...........................58
SECTION 1304. QUORUM; ACTION.................................................58
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT
AND ADJOURNMENT OF MEETINGS...............................59
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS................60
ARTICLE FOURTEEN
THE GUARANTEES
SECTION 1401. GUARANTEES.....................................................60
SECTION 1402. PROCEEDINGS AGAINST THE GUARANTORS.............................63
SECTION 1403. GUARANTEES FOR BENEFIT OF HOLDERS OF NOTES.....................63
SECTION 1404. MERGER OR CONSOLIDATION OF GUARANTORS..........................64
SECTION 1405. ADDITIONAL GUARANTORS..........................................64
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AMB PROPERTY, L.P.
Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA")
and Indenture, dated as of _______ 1998
TIA SECTION INDENTURE SECTION
----------- -----------------
Section 310(a)(1)....................................607
(a)(2)....................................607
(b).......................................604, 608
Section 312(b).......................................701
(c).......................................701
Section 313..........................................101 ("Outstanding")
Section 313(a).......................................702
(c).......................................601, 702, 703
Section 314(a).......................................703
(a)(4)....................................1012
(c)(1)....................................102
(c)(2)....................................102
(e).......................................102
Section 315(a)-(d)...................................303
(e).......................................608
Section 316(a) (last sentence).......................101 ("Outstanding")
(c).......................................104
Section 317(a)(1)....................................503
(a)(2)....................................504
Section 318(a).......................................111
(c).......................................111
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA, which
provides that the provisions of Sections 310 to and including 317 of the TIA are
a part of and govern every qualified indenture, whether or not physically
contained therein.
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INDENTURE (the "Indenture"), dated as of ________, 1998, is among AMB
PROPERTY, L.P., a Delaware limited partnership (hereinafter called the
"Operating Partnership"), having its principal office at 000 Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, AMB PROPERTY CORPORATION, a Maryland
Corporation (hereinafter called the "Parent Guarantor"), having its principal
office at 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, each of the
Operating Partnership's Subsidiaries that either now or in the future are
parties hereto as guarantors (the "Subsidiary Guarantors") and State Street Bank
and Trust Company of California, N.A., a national banking association organized
and existing under the laws of the United States of America, as Trustee
hereunder (hereinafter called the "Trustee"), having its Corporate Trust Office
at 000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
RECITALS OF THE OPERATING PARTNERSHIP
Whereas, the Operating Partnership deems it necessary to issue for its
lawful purposes its unsecured and unsubordinated Notes in an aggregate principal
amount not to exceed $_____________ (the "Notes") in one or more series and to
provide the terms and conditions upon which the Notes are to be authenticated,
issued and delivered, and it has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the Notes.
Whereas, the Guarantors have duly authorized the execution and delivery
of this Indenture and their guarantees of the Notes (the "Guarantees") as
provided herein.
Whereas, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such provisions.
Whereas, all things necessary to make this Indenture a valid agreement
of the Operating Partnership and the Guarantors, in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash
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transaction" and "self-liquidating paper," as used in TIA Section 311,
shall have the meanings assigned to them in the rules of the Commission
adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used principally in Article Three, Article Five, Article
Six and Article Ten are defined in those Articles.
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person is merged or consolidated with or into, or becomes a Subsidiary of, the
Operating Partnership or (ii) assumed by the Operating Partnership or any of its
Subsidiaries in connection with the acquisition of assets from such Person.
Acquired Debt shall be deemed to be incurred on the date the acquired Person is
merged or consolidated with or into, or becomes a Subsidiary of, the Operating
Partnership or the date of the related acquisition, as the case may be.
"Act," when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Debt Service Charge" means, for any period, the interest expense
of the Operating Partnership and its Subsidiaries for such period (including,
without duplication, (i) all amortization of debt discount and premiums, (ii)
all accrued interest, (iii) all capitalized interest and (iv) the interest
component of capitalized lease obligations), determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language, customarily published on each Business Day, whether or not published
on Saturdays, Sundays or holidays, and of general circulation in each place in
connection with which the term is used or in the financial community of each
such place. Whenever successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in the same or in
different Authorized Newspapers in the same city meeting the foregoing
requirements and in each case on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
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"Board of Directors" means the board of directors of the General Partner
or, if the Operating Partnership shall be succeeded by a corporation pursuant to
the provisions of this Indenture, the board of directors of the Operating
Partership's corporate successor or any committee of such applicable board duly
authorized to act generally or in any particular respect hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the General Partner or, if the Operating
Partnership shall be succeeded by a corporation pursuant to the provisions of
this Indenture, of the Operating Partership's corporate successor to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day" means, unless otherwise specified with respect to any
securities pursuant to Section 301, any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which banking institutions in the
States of California or New York are authorized or required by law, regulation
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Shares" means, with respect to any Person that is a corporation,
capital stock issued by such Person other than Preferred Shares.
"Comparable Treasury Issue" means, with respect to Notes of any series
to be redeemed, the United States Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of such
Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of such Notes.
"Comparable Treasury Price" means with respect to any Redemption Date
(i) the average of the two remaining Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations from the four selected, or (ii) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations, the average
of all such quotations.
"Consolidated Income Available For Debt Service" for any period means
Consolidated Net Income of the Operating Partnership and its Subsidiaries for
such period, plus amounts which have been deducted and minus amounts which have
been added for (without duplication) (i) interest expense on Debt, (ii)
provision for taxes based on income, (iii) amortization of debt discount,
premium and deferred financing costs, (iv) provisions for gains and losses on
sales or other dispositions of properties and other investments, (v) property
depreciation and amortization, (vi) the effect of any non-cash items, and (vii)
amortization of deferred charges, all determined on a consolidated basis in
accordance with generally accepted accounting principles.
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"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Operating Partnership and its Subsidiaries for such period,
excluding (without duplication) (i) extraordinary items and (ii) the portion of
net income (but not losses) of the Operating Partnership and its Subsidiaries
allocable to minority interests in unconsolidated Persons to the extent that
cash dividends or distributions have not actually been received by the Operating
Partnership or one of its Subsidiaries, all determined on a consolidated basis
in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 000 Xxxx Xxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
"Corporation" or "corporation" includes corporations, associations, and
business trusts; provided, however, that for purposes of Article Eight, the term
"corporation" shall not include associations, companies or business trusts.
"Custodian" has the meaning specified in section 501.
"Debt" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of (i) borrowed money or evidenced
by bonds, notes, debentures or similar instruments, (ii) indebtedness secured by
any Lien on any property or asset owned by such Person, but only to the extent
of the lesser of (x) the amount of indebtedness so secured and (y) the fair
market value (determined in good faith by the board of directors of such Person
or, in the case of the Operating Partnership or a Subsidiary, by the Board of
Directors) of the property subject to such Lien, (iii) reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable, or (iv) any lease of property by such Person
as lessee which is required to be reflected on such Person's balance sheet as a
capitalized lease in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation of such Person to be liable for, or to pay,
as obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Debt of the types referred to above of another
Person (it being understood that Debt shall be deemed to be incurred by such
Person whenever such Person shall create, assume, guarantee or otherwise become
liable in respect thereof).
"Defaulted Interest" has the meaning set forth in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company and any successor to DTC in its
capacity as depositary for any Notes.
"Event Of Default" has the meaning specified in Section 501.
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"GAAP" and "generally accepted accounting principles" mean generally
accepted accounting principles, as in effect from time to time, as used in the
United States of America applied on a consistent basis.
"General Partner" means AMB Property Corporation, a Maryland corporation
until a successor shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "General Partner" shall mean such successor
corporation.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America, for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depositary receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depositary receipt.
"Guarantors" means the Parent Guarantor and each of the Subsidiary
Guarantors.
"Guarantees" means each Guarantee executed pursuant to the provisions of
this Indenture.
"Holder" means the Person in whose name a Note is registered in the Note
Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
(as such terms and provisions may be amended pursuant to the applicable
provisions hereof).
"Independent Investment Banker" means Xxxxxx Xxxxxxx & Co. Incorporated
or, if such firm is unwilling or unable to select the Comparable Treasury Issue,
an independent investment banking institution of national standing appointed by
the Operating Partnership after consultation with the Trustee.
"Interest Payment Date" when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"Lien" means any mortgage, deed of trust, lien, charge, pledge, security
interest, security agreement or other encumbrance of any kind.
"Maturity" when used with respect to any Note, means the date on which
the principal of such Note or an installment of principal becomes due and
payable as therein or herein provided,
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whether at the Stated Maturity or by declaration of acceleration, notice of
redemption, notice of option to elect repayment or otherwise.
"Note" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Note or Notes authenticated and delivered
under this Indenture; provided, however, that, if at any time there is more than
one Person acting as Trustee under this Indenture, "Notes" with respect to the
Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Notes
authenticated and delivered under this Indenture, exclusive, however, of Notes
of any series as to which such Person is not Trustee.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 305.
"Officers' Certificate" means a certificate signed by the Chairman, the
President or a Vice President and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the General Partner, and delivered to the
Trustee, provided that if the Operating Partnership shall be succeeded by a
corporation pursuant to the provisions of this Indenture, "Officers'
Certificate" shall mean a certificate signed by the Chairman, the President or a
Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of such successor corporation, and delivered to the Trustee.
"Operating Partnership" means the Person named as the "Operating
Partnership" in the first paragraph of this Indenture until a successor shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "Operating Partnership" shall mean such successor person.
"Operating Partnership Request" and "Operating Partnership Order" mean,
respectively, a written request or order signed in the name of the Operating
Partnership by the General Partner by its Chairman, any Vice Chairman, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the Trustee, provided that
if the Operating Partnership shall be succeeded by a corporation pursuant to the
provisions of this Indenture, "Operating Partnership Request" and "Operating
Partnership Order" shall mean, respectively, a written request or order signed
in the name of the Operating Partnership by its Chairman, any Vice Chairman, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Operating Partnership or the General Partner or who may be an
employee of or other counsel for the Operating Partnership or the General
Partner and who shall be reasonably satisfactory to the Trustee.
"Outstanding," when used with respect to Notes, means, as of the date of
determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
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(ii) Notes, or portions thereof, for whose payment at the
Maturity thereof money in the necessary amount has been theretofore
deposited (other than pursuant to Article Twelve hereof) with the
Trustee or any Paying Agent (other than the Operating Partnership) in
trust or set aside and segregated in trust by the Operating Partnership
(if the Operating Partnership shall act as its own Paying Agent) for the
Holders of such Notes, provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture
or provision therefor satisfactory to the Trustee has been made;
(iii) Notes, except to the extent provided in Sections 1202 and
1203, with respect to which the Operating Partnership has effected
defeasance and/or covenant defeasance as provided in Article Twelve; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Notes are held by a bona fide purchaser in
whose hands such Notes are valid obligations of the Operating
Partnership;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, Notes owned by the Operating
Partnership or any other obligor upon the Notes or any Affiliate of the
Operating Partnership or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Notes which
the Trustee knows to be so owned shall be so disregarded. Notes so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Operating Partnership
or any other obligor upon the Notes or any Affiliate of the Operating
Partnership or of such other obligor.
"Parent Guarantor" means AMB Property Corporation, a Maryland
corporation until a successor shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Parent Guarantor" shall mean such
successor person.
"Paying Agent" means any Person authorized by the Operating Partnership
to pay the principal of (and premium, if any) or interest on any Notes on behalf
of the Operating Partnership.
"Person" means any individual, corporation, business trust, partnership,
joint venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
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"Place of Payment," when used with respect to the Notes of or within any
series, means the place or places where the principal of (and premium, if any)
and interest on such Notes are payable as specified as contemplated by Sections
301 and 1002.
"Predecessor Note" of any particular Note means every previous security
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note.
"Preferred Shares" means, with respect to any Person that is a
corporation, capital stock issued by such Person that is entitled to a
preference or priority over any other capital stock issued by such Person upon
any distribution of such Person's assets, whether by dividend or upon
liquidation.
"Redemption Date," when used with respect to any Note to be redeemed, in
whole or in part, means the date fixed for such redemption pursuant to Section
1102.
"Redemption Price," when used with respect to any Note to be redeemed,
means an amount equal to the greater of (i) 100% of the principal amount of the
Notes to be redeemed and (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of interest
accrued to such Redemption Date) discounted to such Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus ____ basis points, plus, in either case, accrued and
unpaid interest on the principal amount being redeemed to such Redemption Date.
"Reference Treasury Dealer" means Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx, Sachs & Co., X.X. Xxxxxx Securities Inc. and any additional Reference
Treasury Dealer appointed by the Trustee after consultation with the Operating
Partnership and their successors; provided, however, that if Xxxxxx Xxxxxxx &
Co. Incorporated, Xxxxxxx, Sachs & Co., X.X. Xxxxxx Securities Inc. or such
additional Reference Treasury Dealer and their successors shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Operating Partnership will substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
time, on the third Business Day preceding such Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Notes of or within any series means the date specified for that
purpose as contemplated by Section 301, whether or not a Business Day.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer
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or assistant trust officer, the controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers.
"Securities Exchange Act of 1934" means the Securities Exchange Act of
1934, as amended, and any reference herein to such Act or a particular provision
or section thereof shall mean, unless otherwise expressly stated or the context
otherwise requires, such Act, provision or section, as the case may be, as
amended or replaced from time to time or as supplemented from time to time.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X promulgated under the
Securities Act of 1933, as in effect on January 1, 1998) of the Operating
Partnership.
"Special Record Date" for the payment of any Defaulted Interest on the
Notes of or within any series means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," when used with respect to any Note or any installment
of principal thereof or interest thereon, means the date specified in such Note
or pursuant to this Indenture as the fixed date on which the principal of such
Note or such installment of principal or interest is due and payable.
"Subsidiary" means (i) a corporation, partnership, joint venture,
limited liability company or other Person the majority of the shares, if any, of
the non-voting capital stock or other equivalent ownership interests of which
(except directors' qualifying shares) are at the time directly or indirectly
owned by the Operating Partnership and/or any other Subsidiary or Subsidiaries,
and the majority of the shares of the voting capital stock or other equivalent
ownership interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Operating Partnership, any other
Subsidiary or Subsidiaries, and (ii) any other Person the accounts of which are
consolidated with the accounts of the Operating Partnership.
"Subsidiary Guarantors" means AMB Property II, L.P., a Delaware limited
partnership, Long Gate LLC, a Delaware limited liability company, and any other
Subsidiary of the Operating Partnership that from time to time shall execute a
guarantee of the obligations of the Operating Partnership under any Debt of the
Operating Partnership.
"Total Assets" means the sum of (without duplication) (i) Undepreciated
Real Estate Assets and (ii) all other assets (excluding accounts receivable and
intangibles) of the Operating Partnership and its Subsidiaries, all determined
on a consolidated basis in accordance with generally accepted accounting
principles.
"Total Unencumbered Assets" means the sum of (without duplication) (i)
those Undepreciated Real Estate Assets which are not subject to a Lien securing
Debt and (ii) all other assets (excluding accounts receivable and intangibles)
of the Operating Partnership and its Subsidiaries not subject to a Lien securing
Debt, all determined on a consolidated basis in accordance with generally
accepted accounting principles.
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"Treasury Rate" means, with respect to any Redemption Date, (i) the
yield, under the heading which represents the average for the immediately
preceding week, appearing in the most recently published statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Stated Maturity of principal, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month) or
(ii) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or the TIA or a
particular provision thereof shall mean such Act or provision, as the case may
be, as amended or replaced from time to time or as supplemented from time to
time by rules or regulations adopted by the Commission under or in furtherance
of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder; provided, however, that
if at any time there is more than one such Person, "Trustee" as used with
respect to the Notes of any series shall mean only the Trustee with respect to
Notes of that series.
"Undepreciated Real Estate Assets" means, as of any date, the cost
(original cost plus capital improvements) of real estate assets of the Operating
Partnership and its Subsidiaries on such date, before depreciation and
amortization, all determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Unsecured Debt" means Debt of the Operating Partnership or any of its
Subsidiaries which is not secured by a Lien on any property or assets of the
Operating Partnership or any of its Subsidiaries.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Operating Partnership to the Trustee to take any action under
any provision of this Indenture, the Operating Partnership shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is
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specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been satisfied or complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been satisfied or complied
with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the General Partner, any
Guarantor, any general partner or manager of any Guarantor or any corporate
successor of the Operating Partnership or any Guarantor may be based, insofar as
it relates to legal matters, upon an Opinion of Counsel, or a certificate or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel or certificate or representations may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer or officers of the General Partner, any
Guarantor, any general partner or manager of any Guarantor or any corporate
successor of the Operating Partnership or any Guarantor, as applicable, stating
that the information as to such factual matters is in the possession of the
General Partner, any Guarantor, any general partner or manager of any Guarantor
or any corporate successor of the Operating Partnership or any Guarantor, as
applicable, unless such counsel knows that the certificate or opinion or
representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of the outstanding Notes of any series or all
series, as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agents duly appointed in writing. 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
Operating Partnership. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Note, shall be sufficient
for any purpose of this Indenture and conclusive in favor of the Trustee and the
Operating Partnership and any agent of the Trustee or the Operating Partnership,
if made in the manner provided in this Section. The record of any meeting of
Holders shall be proved in the manner provided in Section 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient in its
reasonable discretion.
(c) The ownership of Notes shall be proved by the Note Register.
(d) If the Operating Partnership shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Operating Partnership may, at its option, in or pursuant to a Board
Resolution, 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 Operating Partnership shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date shall
be the record date specified in or pursuant to such Board Resolution, which
shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than the
date such solicitation is completed. 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
outstanding Notes have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Notes shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
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(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Note
Registrar, any Paying Agent, any Authenticating Agent or the Operating
Partnership in reliance thereon, whether or not notation of such action is made
upon such Note.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND OPERATING PARTNERSHIP. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Operating Partnership
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Department, or
(2) the Operating Partnership by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Operating Partnership addressed to it at the address of
its principal office specified in the first paragraph of this Indenture
or at any other address previously furnished in writing to the Trustee
by the Operating Partnership.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides
for notice of any event to Holders by the Operating Partnership or the Trustee,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each such
Holder affected by such event, at his address as it appears in the Note
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders as shall be made with the
approval of the Trustee shall constitute a sufficient notification to such
Holders for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
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SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Operating Partnership and the Guarantors shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Note 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 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto, any Note Registrar, any Paying Agent, any Authenticating Agent and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Notes shall be
governed by and construed in accordance with the law of the State of New York.
This Indenture is subject to the provisions of the TIA that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, Stated Maturity or Maturity of any Note
shall not be a Business Day, then (notwithstanding any other provision of this
Indenture or any Note), payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding Business
Day with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date, or at the Stated Maturity or Maturity, as the
case may be, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date, Repayment
Date, Stated Maturity or Maturity, as the case maybe.
SECTION 113. COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
Indenture.
ARTICLE TWO
NOTE FORMS
SECTION 201. FORM OF NOTES. The Notes of each series shall be in
substantially the forms as shall be established in or pursuant to one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Operating Partnership may deem appropriate
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Notes
may be listed, or to conform to usage.
The definitive Notes (and Guarantees) shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
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border or steel engraved borders or may be produced in any other manner, all as
determined by the officer executing such Notes (and Guarantees), as evidenced by
his or her execution of such Notes.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject
to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
State Street Bank and Trust Company of California, N.A., as Trustee
By:
--------------------------------
Authorized Signatory
SECTION 203. NOTES ISSUABLE IN GLOBAL FORM. The Notes shall be issuable
only in global form (without coupons). Beneficial owners of interests in the
permanent global Notes may exchange such interests for Notes of like tenor or
any authorized form and denomination only in the manner provided in Section 305.
DTC shall be the depositary with respect to the permanent global Notes.
Notwithstanding the provisions of Section 302, any such global Note shall
represent such of the Outstanding Notes of such series as shall be specified
therein and may provide that it shall represent the aggregate amount of
Outstanding Notes of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Notes of such series represented thereby may
from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Note in global form to reflect the amount, or any increase or
decrease in the amount, of Outstanding Notes represented thereby shall be made
by or at the direction of the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or pursuant to Section
301 or in the Operating Partnership Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Note in
permanent global form in the manner and upon instructions given by the Person or
Persons specified therein or pursuant to Section 301 or in the applicable
Operating Partnership Order. If an Operating Partnership Order pursuant to
Section 304 or 305 has been or is delivered, any instructions by the Operating
Partnership with respect to endorsement or delivery or redelivery of a Note in
global form shall be in writing but need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Note represented by a Note in global form if such Note was never issued and sold
by the Operating Partnership and the Operating Partnership delivers to the
Trustee the Note in global form together with written instructions (which need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Notes
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
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Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Note in global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Operating Partnership, any agent of the Operating
Partnership and the Trustee shall treat the Holder of a global Note as the
Holder of such principal amount of Outstanding Notes represented by such global
Note.
ARTICLE THREE
THE NOTES
SECTION 301. AMOUNT LIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Notes which may be authenticated and delivered under this
Indenture is limited to $____________.
The Notes shall be issued in three series. There shall be established in
one or more Board Resolutions or pursuant to authority granted by one or more
Board Resolutions and set forth or established in or pursuant to one or more
indentures supplemental hereto, prior to the issuance of Notes of any series,
any or all of the following, as applicable:
(1) the title of the Notes of the series (which shall distinguish
the Notes of such series from all other series of Notes);
(2) the limit upon the aggregate principal amount of the Notes of
the series that may be authenticated and delivered under this Indenture
(except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes of the
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Notes of the series
shall be payable;
(4) the rate or rates at which the Notes of the series shall bear
interest, the date or dates from which such interest shall accrue, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date for the interest payable on any Note on any Interest
Payment Date;
(5) the place or places, if any, other than or in addition to The
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any), interest payable in respect of, Notes of the series
shall be payable, any Notes of the series may be surrendered for
registration of transfer or exchange and notices or demands to or upon
the Operating Partnership in respect of the Notes of the series and this
Indenture may be served;
(6) the obligation, if any, of the Operating Partnership to
redeem, repay or purchase Notes of the series at the option of a Holder
thereof, and the period or periods within which or the date or dates on
which, the price or prices at which, and other terms
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and conditions upon which Notes of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(7) if other than the Trustee, the identity of each Note
Registrar and/or Paying Agent;
(8) provisions, if any, granting special rights to the Holders of
the series upon the occurrence of such events as may be specified;
(9) any deletions from, modifications of, or additions to the
Events of Default or covenants of the Operating Partnership with respect
to Notes of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set
forth herein;
(10) the Person to whom any interest on any Note of the series
shall be payable, if other than the Person in whose name that Note (or
one or more Predecessor Notes) is registered at the close of business on
the Regular Record Date for such interest, and
(11) any other terms of the series and any deletions from or
modifications or additions to this Indenture in respect of such Notes
(whether or not consistent with the other provisions of this Indenture).
All Notes of any one series and the Guarantees appertaining to any Notes
of such series shall be substantially identical except as to denomination and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Operating Partnership in the Board Resolution, or pursuant to
the Board Resolution and set forth in the Officers' Certificate, or in any
indenture or indentures supplemental hereto, as the case may be, pertaining to
such series of Notes. The terms of the Notes of any series may provide, without
limitation, that the Notes shall be authenticated and delivered by the Trustee
on original issue from time to time upon telephonic or written order of persons
designated in or pursuant to the relevant Board Resolution, Officers'
Certificate or supplemental indenture, as the case may be (telephonic
instructions to be promptly confirmed in writing by such person) and that such
persons are authorized to determine, consistent with such Board Resolution,
Officers' Certificate or supplemental indenture, as the case may be, such terms
and conditions of the Notes of such series as are specified in such Board
Resolution, Officers' Certificate or supplemental indenture, as the case may be.
All Notes of any one series must be issued at the same time(except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes of the series pursuant to Section 304, 305, 306,
906 or 1107).
SECTION 302. DENOMINATIONS. The Notes of any series shall be issuable
in denominations of $1,000 and any integral multiple thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Notes
shall be executed on behalf of the Operating Partnership by its General Partner
by such General Partner's Chairman, President or any Vice President. If a
Guarantor is a corporation its Guarantee shall be executed on behalf of the
Guarantor by its Chairman, President or any Vice President and attested to by
its Treasurer, any Assistant Treasurer, its Secretary or any Assistant Secretary
and if a Guarantor is a partnership or a limited liability company its
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Guarantee shall be executed on behalf of such Guarantor by the Chairman,
President or any Vice President and attested to by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of its general partner or
manager, as applicable. The signature of any of these officers on the Notes or
Guarantee may be manual or facsimile signatures of the present or any future
such authorized officer and may be imprinted or otherwise reproduced on the
Notes or the Guarantees.
The Guarantees or Notes bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Operating
Partnership's General Partner, the Guarantors (or the general partner or manager
of such Guarantor) or any corporate successor of the Operating Partnership, as
applicable shall bind the Operating Partnership or the applicable Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or Guarantees or
did not hold such offices at the date of such Notes or Guarantees.
Each Note and Guarantee shall be dated the date of its authentication.
No Note or Guarantee shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Note a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding the
foregoing, if any Note shall have been authenticated and delivered hereunder but
never issued and sold by the Operating Partnership, and the Operating
Partnership shall deliver such Note to the Trustee for cancellation as provided
in Section 309 together with a written statement (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Note has never been issued and sold by the Operating Partnership, for all
purposes of this Indenture such Note shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. TEMPORARY NOTES. Pending the preparation of definitive
Notes of any series, the Operating Partnership may execute, and upon Operating
Partnership Order the Trustee shall authenticate and deliver, temporary Notes
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued, in registered form, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Notes may determine, as conclusively evidenced by
their execution of such Notes. In the case of Notes of any series, such
temporary Notes may be in global form.
If temporary Notes of any series are issued, the Operating Partnership
will cause definitive Notes of that series to be prepared without unreasonable
delay. After the preparation of definitive Notes of such series, the temporary
Notes of such series shall be exchangeable for definitive Notes of such series
upon surrender of the temporary Notes of such series at the office or agency of
the Operating Partnership in a Place of Payment for that series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Notes of any series,
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the Operating Partnership shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of the
same series of authorized denominations. Until so exchanged, the temporary Notes
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Notes of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Operating Partnership shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Operating Partnership in a Place
of Payment a register for any series of Notes (the registers maintained in such
office or in any such office or agency of the Operating Partnership in a Place
of Payment being herein sometimes referred to collectively as the "Note
Register") in which, subject to such reasonable regulations as it may prescribe,
the Operating Partnership shall provide for the registration of Notes and of
transfers and exchanges of Notes. The Note Register shall be in written form or
any other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office and at the office of its
affiliate in the Borough of Manhattan, The City of New York at the address set
forth in Section 1002 (or at such other address at which the Trustee's
affiliate's New York office may subsequently be located), is hereby initially
appointed "Note Registrar" for the purpose of registering Notes and transfers
and exchanges of Notes on such Note Register as herein provided. In the event
that the Trustee shall cease to be Note Registrar, it shall have the right to
examine the Note Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Note of any series at any office or agency of
the Operating Partnership in a Place of Payment for that series, the Operating
Partnership shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Notes of
the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions. Subject to the provisions of this
Section 305, at the option of the Holder, Notes of any series may be exchanged
for other Notes of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Notes to be exchanged at any such
office or agency. Whenever any such Notes are so surrendered for exchange, the
Operating Partnership shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive.
Any permanent global Note shall be exchangeable only as provided in this
paragraph. If the depositary for any permanent global Note is DTC, then, unless
the terms of such global Note expressly permit such global Note to be exchanged
in whole or in part for definitive Notes, a global Note may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC,
or to a successor to DTC for such global Note selected or approved by the
Operating Partnership or to a nominee of such successor to DTC. If at any time
(i) DTC notifies the Operating Partnership that it is unwilling or unable to
continue as depositary for the applicable global Note or Notes or if at any time
DTC ceases to be a clearing agency registered under the Securities Exchange Act
of 1934 if so required by applicable law or regulation, and, in either case, a
successor depositary is not appointed by the Operating Partnership within 90
days after the Operating Partnership receives such notice or becomes aware of
such ineligibility, (ii) the Operating Partnership in its sole discretion
determines that such global Notes shall be
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exchangeable for definitive Notes or (iii) there shall have occurred and be
continuing an Event of Default under this Indenture with respect to the Notes of
any series and beneficial owners representing a majority in aggregate principal
amount of the Outstanding Notes represented by such global Notes advise DTC to
cease acting as depositary, then the Operating Partnership shall execute, and
the Trustee shall authenticate and deliver, definitive Notes of like series,
rank, tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such global Note or Notes. If any beneficial owner of
an interest in a permanent global Note is otherwise entitled to exchange such
interest for Notes of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Note shall have been given, then without unnecessary delay but in any
event not later than the earliest date on which such interest may be so
exchanged, the Operating Partnership shall execute, and the Trustee shall
authenticate and deliver, definitive Notes in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Note. On or after the earliest date on which such interests may be so
exchanged, such permanent global Note shall be surrendered for exchange by DTC
or such other depositary as shall be specified in the Operating Partnership
Order with respect thereto to the Trustee, as the Operating Partnership's agent
for such purpose. If a Note is issued in exchange for any portion of a permanent
global Note after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, Interest
or Defaulted Interest, as the case may be, such interest will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Note, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Note is payable in
accordance with the provisions of this Indenture.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Operating Partnership, evidencing the same
Debt, and entitled to the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange or redemption shall (if so required by the Operating Partnership or the
Note Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Operating Partnership and the Note
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Notes, but the Operating Partnership may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 304, 906 or 1107.
The Operating Partnership or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Note if such
Note may be among those selected for redemption during a period beginning at the
opening of business 15 days before selection of the
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Notes to be redeemed under Section 1103 and ending at the close of business on
the day of the mailing of the relevant notice of redemption, or (ii) to register
the transfer of or exchange any Note so selected for redemption in whole or in
part, except, in the case of any Note to be redeemed in part, the portion
thereof not to be redeemed, or (iii) if applicable, to issue, register the
transfer of or exchange any Note which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Note not to be so
repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN NOTES. If any
mutilated Note or a Note with a Guarantee appertaining thereto is surrendered to
the Trustee or the Operating Partnership, together with, in proper cases,
indemnity as may be required by the Operating Partnership or the Trustee to save
each of them or any agent of either of them harmless, the Operating Partnership
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Note of the same series and principal amount, containing
identical terms and provisions and bearing a number not contemporaneously
outstanding, with Guarantees corresponding to the Guarantees appertaining to the
surrendered Note.
If there shall be delivered to the Operating Partnership and to the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Note or Guarantee, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Operating Partnership or the Trustee that such Note or
Guarantee has been acquired by a bona fide purchaser, the Operating Partnership
shall execute and upon its request the Trustee shall authenticate and deliver,
in lieu of any such destroyed, lost or stolen Note or in exchange for the Note
to which a destroyed, lost or stolen Guarantee appertains, a new Note of the
same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding with Guarantees corresponding
to the Guarantees appertaining to such destroyed, lost or stolen Note or to the
Note to which such destroyed, lost or stolen Guarantee appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Note has become or is about to
become due and payable, the Operating Partnership in its discretion may, instead
of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Operating
Partnership may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Operating Partnership, whether or not the
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes or Guarantees.
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SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Notes in accordance with the
provisions of Section 301, interest on any Note that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Note (or one or more Predecessor Notes) is
registered at the close of business on the Regular Record Date for such interest
at the office or agency of the Operating Partnership maintained for such purpose
pursuant to Section 1002; provided, however, that each installment of interest
on any Note may at the Operating Partnership's option be paid by (i) mailing a
check for such interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 308, to the address of such Person as it
appears on the Note Register or (ii) wire transfer to an account maintained by
the payee located in the United States.
Unless otherwise provided as contemplated by Section 301, interest, if
any, payable on any permanent global Note on any Interest Payment Date will be
paid to DTC, with respect to that portion of such permanent global Note held for
its account by Cede & Co. (or by another nominee of DTC or by DTC) for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Note to the accounts of the beneficial owners
thereof.
Except as otherwise specified with respect to a series of Notes in
accordance with the provisions of Section 301, any interest on any Note of any
series that is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered Holder thereof on the relevant Regular Record
Date by virtue of having been such Holder, and such Defaulted Interest may be
paid by the Operating Partnership, at its election in each case, as provided in
clause (1) or (2) below:
(1) The Operating Partnership may elect to make payment of any Defaulted
Interest to the Persons in whose names the Notes of such series (or their
respective Predecessor Notes) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Operating Partnership shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Note of such series and the date of the proposed payment (which shall not
be less than 20 days after such notice is received by the Trustee), and at the
same time the Operating Partnership shall deposit with the Trustee an amount of
money (except as otherwise specified pursuant to Section 301 for the Notes of
such series) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Operating Partnership of such Special Record Date and, in the name and at the
expense of the Operating Partnership, shall cause notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such series at his address as it
appears in the Note Register not less than 10 days prior to such Special Record
Date. The Trustee shall in the name
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and at the expense of the Operating Partnership, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of Payment, but
such publications shall not be a condition precedent to the establishment of
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the Notes of
such series (or their respective Predecessor Notes) are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2).
(2) The Operating Partnership may make payment of any Defaulted Interest
on the Notes of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Notes may be listed, and
upon such notice as may be required by such exchange, if, after notice given by
the Operating Partnership to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Note delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Note.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a Note
for registration of transfer, the Operating Partnership, the Guarantors, the
Trustee and any agent of the Operating Partnership or the Trustee may treat the
Person in whose name such Note is registered as the owner of such Note for the
purpose of receiving payment of principal of (and premium, if any), and (subject
to Sections 305 and 307) interest on, such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Operating
Partnership, the Guarantors, the Trustee nor any agent of the Operating
Partnership, the Guarantors or the Trustee shall be affected by notice to the
contrary.
None of the Operating Partnership, the Guarantors, the Trustee, any
Paying Agent or the Note Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Note in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Note, nothing
herein shall prevent the Operating Partnership, the Trustee, or any agent of the
Operating Partnership or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Note or impair, as between such depositary
and owners of beneficial interests in such global Note, the operation of
customary practices governing the exercise of the rights of such depositary (or
its nominee) as Holder of such global Note.
SECTION 309. CANCELLATION. All Notes surrendered for payment,
redemption, repayment at the option of the Holder, or registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Notes surrendered directly to the Trustee
for any such purpose shall be promptly canceled by it. The Operating Partnership
may at any time deliver to the Trustee for cancellation any Notes
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previously authenticated and delivered hereunder which the Operating Partnership
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes
previously authenticated hereunder which the Operating Partnership has not
issued and sold, and all Notes so delivered shall be promptly canceled by the
Trustee. If the Operating Partnership shall so acquire any of the Notes,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Notes unless and until the same are
surrendered to the Trustee for cancellation. No Notes shall be authenticated in
lieu of or in exchange for any Notes canceled as provided in this Section,
except as expressly permitted by or pursuant to this Indenture. Canceled Notes
held by the Trustee shall be destroyed by the Trustee and the Trustee shall
deliver a certificate of such destruction to the Operating Partnership, unless
by a Operating Partnership Order the Operating Partnership directs their return
to it.
SECTION 310. COMPUTATION OF INTEREST. Interest on the Notes of any
series shall be computed on the basis of a 360-day year consisting of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Operating Partnership Request cease to be of further effect with
respect to any series of Notes specified in such Operating Partnership Request
(except as hereinafter provided in this Section 401). The Trustee, upon receipt
of an Operating Partnership Order, and at the expense of the Operating
Partnership, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture as to such series when (1) either
(A) all Notes of such series theretofore authenticated and delivered
have been delivered to the Trustee for cancellation; or
(B) all Notes of such series
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Operating Partnership,
are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Operating
Partnership,
and the Operating Partnership, in the case of (i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust, an amount sufficient to pay and discharge the entire
indebtedness on such Notes, for principal (and premium, if any) and interest to
the date of such deposit (in the case of Notes which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Operating Partnership has paid or caused to be paid all other
sums payable hereunder by the Operating Partnership; and
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(3) the Operating Partnership has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Operating Partnership to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Operating Partnership to any
Authenticating Agent under Section 611 and, if money shall have been deposited
with and held by the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Operating Partnership and the Trustee with
respect to the Notes of such series under Sections 305, 306, 402, 1002 and 1003,
shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of
the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Notes and this Indenture, to the payment, either
directly or through any Paying Agent (other than the Operating Partnership
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and interest, if any,
for whose payment such money has been deposited with or received by the Trustee,
but such money need not be segregated from other funds except to the extent
required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," means, with respect
to any series of Notes, any one of the following events (whatever the reason for
such Event of Default and whether or not it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or governmental
body):
(1) default in the payment of any interest on any Note of that
series, when such interest becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of any principal of or premium, if
any, on any Note of that series when it becomes due and payable at its
Maturity (whether at Stated Maturity, upon redemption or otherwise); or
(3) default in the performance, or breach, of any covenant or
warranty of the Operating Partnership in this Indenture with respect to
any Note of that series (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with or included herein solely for the benefit of a
series of Notes other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Operating Partnership by the
Trustee or to the Operating Partnership and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Notes of that
series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
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(4) (a) default by the Operating Partnership or any Subsidiary of
the Operating Partnership in the payment (whether at stated maturity,
upon acceleration, upon required prepayment or otherwise), beyond any
period of grace provided therefor, of any principal of or interest on
any bond, note, debenture or other evidence of indebtedness, or (b) any
other breach or default (or other event or condition) shall occur under
any agreement, indenture or instrument relating to any such bond, note,
debenture or other evidence of indebtedness beyond any cure period
provided therefor, if as a result thereof the holder or holders of any
such bond, note, debenture or other evidence of indebtedness (or a
person on behalf of such holder or holders) has the immediate right to
cause (upon the giving of notice, if required) any such bond, note,
debenture or other evidence of indebtedness to become or be declared due
and payable, or required to be prepaid, redeemed, purchased or defeased
(or an offer of prepayment, redemption, purchase or defeasance be made),
prior to its stated maturity (other than by a scheduled mandatory
prepayment), which in the aggregate under (a) and (b) have a principal
amount equal to or greater than $20,000,000; or
(5) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Operating Partnership or any
Significant Subsidiary in an aggregate amount (excluding amounts fully
covered by insurance) in excess of $20,000,000 and such judgments,
orders or decrees remain undischarged, unstayed and unsatisfied in an
aggregate amount (excluding amounts fully covered by insurance) in
excess of $20,000,000 for a period of 30 consecutive days; or
(6) the Operating Partnership, the General Partner or any
Significant Subsidiary of the Operating Partnership pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order or decree for relief
against it in an involuntary case or to the commencement of any
bankruptcy or insolvency case or proceeding against it,
(C) consents to the appointment of a Custodian (as defined
below) of it or for any substantial part of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Operating Partnership, the
General Partner or any Significant Subsidiary of the Operating
Partnership in an involuntary case,
(B) adjudges the Operating Partnership, the General
Partner or any Significant Subsidiary of the Operating
Partnership a bankrupt or insolvent,
(C) approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Operating
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Partnership, the General Partner or any Significant Subsidiary
of the Operating Partnership,
(D) appoints a Custodian of the Operating Partnership, the
General Partner or any Significant Subsidiary of the Operating
Partnership or for all or any substantial part of the property of
the Operating Partnership, the General Partner or any Significant
Subsidiary of the Operating Partnership, or
(E) orders the winding up or liquidation of the Operating
Partnership, the General Partner or any Significant Subsidiary of
the Operating Partnership, and the order or decree described in
this clause (7) remains unstayed and in effect for 60 days.
As used in this Section 501, the term "Bankruptcy Law" means Title 11
U.S. Code or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or other similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Notes of any series at the time outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Notes of that series
may declare the principal of all the Notes of that series to be due and payable
immediately, by a notice in writing to the Operating Partnership (and to the
Trustee if given by the Holders), and upon the delivery of any such declaration
to the Operating Partnership such principal or specified portion thereof shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Notes of any series has been made and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of not less than a majority in principal amount of the
Outstanding Notes of that series, by written notice to the Operating Partnership
and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Operating Partnership has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all
Outstanding Notes of that series,
(B) the principal of (and premium, if any, on) any
Outstanding Notes of that series which have become due otherwise
than by such declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or
rates borne by or provided for in such Notes, and
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(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Notes of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest on Notes of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Operating Partnership covenants that if:
(1) default is made in the payment of any installment of interest
on any Note of any series when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Note of any series at its Maturity,
then the Operating Partnership will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Notes of such series, the whole
amount then due and payable on such Notes for principal (and premium, if any)
and interest, with interest upon any overdue principal (and premium, if any)
and, to the extent that payment of such interest shall be legally enforceable,
upon any overdue installments of interest at the rate or rates borne by or
provided for in such Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Operating Partnership fails to pay such amounts forthwith upon
such demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Operating Partnership or any Guarantor or any other
obligor upon such Notes or Guarantees of such series and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Operating Partnership or Guarantor or any other obligor upon
such Notes or Guarantees of such series, wherever situated.
If an Event of Default with respect to Notes of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of such series and any related Guarantees
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement,
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adjustment, composition or other judicial proceeding relative to the Operating
Partnership, any Guarantor or any other obligor upon the Notes or the property
of the Operating Partnership, any Guarantor or of such other obligor, the
Trustee (irrespective of whether the principal of the Notes of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Operating
Partnership or any Guarantor for the payment of overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Notes of such series, of
principal (and premium, if any) and interest owing and unpaid in respect
of the Notes or Guarantees 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
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of such series and Guarantees to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Notes or
Guarantees 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 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES .
All rights of action and claims under this Indenture or any of the Notes or
Guarantees may be prosecuted and enforced by the Trustee without the possession
of any of the Notes or Guarantees or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Notes or Guarantees in respect of
which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Notes or Guarantees, or any
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thereof, and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Notes and Guarantees for principal (and premium, if any) and
interest in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Notes and
Guarantees for principal (and premium, if any) and interest,
respectively; and
THIRD: To the payment of the remainder, if any, to the Operating
Partnership.
SECTION 507. LIMITATION ON SUITS. No Holder of any Note of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Notes of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Note shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) interest on such Note on the due date
expressed in such Note (or, in the case of redemption, on
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the Redemption Date) and (subject to Section 507) to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, the Operating Partnership, each Guarantor, the Trustee and the
Holders shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes or Guarantees in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders or Guarantees is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Note or Guarantee to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders or Guarantees, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF NOTES. The Holders of not less than
a majority in principal amount of the Outstanding Notes of any series shall have
the right to direct the Trustee as to the time, method and place of conducting
any proceeding for any remedy available or exercising any trust or power
conferred on the Trustee with respect to the Notes of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which, in its reasonable
determination, might involve it in personal liability or be unduly
prejudicial to the Holders of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Notes of any series may on
behalf of the Holders
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of all the Notes of such series waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or payable in respect of any Note of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Note of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Operating
Partnership covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Operating Partnership (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Notes of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after the respective Stated Maturities expressed in such Note
(or, in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Notes of any series, the Trustee shall
transmit, in the manner and to the extent provided in TIA Section 313(c), notice
to Holders of such default hereunder actually known to the Trustee, unless such
default shall have been cured or waived;
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provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Note of such series, the
Trustee shall be protected in withholding such notice if and so long as a
Responsible Officer of the Trustee in good faith determines, that the
withholding of such notice is in the interests of the Holders of the Notes; and
provided further that in the case of any default or breach of the character
specified in Section 501(4) with respect to the Notes, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Notes of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party
or parties;
(2) any request or direction of the Operating Partnership
mentioned herein shall be sufficiently evidenced by an Operating
Partnership Request or an Operating Partnership Order (other than
delivery of any Note to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel 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;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of any series or any related Guarantees
pursuant to this Indenture, unless such Holders shall have offered to
the Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the
Trustee, in its discretion, may make such reasonable further inquiry or
investigation into such facts or matters as it may see fit, and, if the
Trustee shall
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determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Operating
Partnership, personally or by agent or attorney reasonably related to
such inquiry;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
In no event shall the Trustee be liable for any indirect, special or
consequential damages in connection with the performance of its obligations
hereunder.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF NOTES. The
recitals contained herein and in the Notes and Guarantees, except the Trustee's
certificate of authentication, shall be taken as the statements of the Operating
Partnership or any Guarantor, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes or the Guarantees, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Operating
Partnership of Notes or the proceeds thereof.
SECTION 604. MAY HOLD NOTES AND GUARANTEES. The Trustee, any Paying
Agent, Note Registrar, Authenticating Agent or any other agent of the Operating
Partnership, in its individual or any other capacity, may become the owner or
pledgee of Notes and Guarantees and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Operating Partnership or any Guarantor with the same
rights it would have if it were not Trustee, Paying Agent, Note Registrar,
Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the
Operating Partnership.
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SECTION 606. COMPENSATION AND REIMBURSEMENT. The Operating Partnership
agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as
may be attributable to its negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Operating
Partnership under this Section, the Trustee shall have a lien for payment of the
Trustee's fees and expenses prior to the Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the payment
of principal of (or premium, if any) with respect to particular Notes.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a) (1) and shall have a
combined capital and surplus of at least $100,000,000 (or which trust company
shall have an ultimate parent holding company with a combined capital and
surplus of at least $100,000,000). If such corporation (or ultimate parent
holding company, as the case may be) publishes reports of condition at least
annually, pursuant to law or the requirements of federal, state, territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation (or
ultimate parent holding company, as the case may be) shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
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SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Notes
of one or more series by giving written notice thereof to the Operating
Partnership. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time with respect to the
Notes of any series by Act of the Holders of a majority in principal
amount of the Outstanding Notes of such series delivered to the Trustee
and to the Operating Partnership.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the
Operating Partnership or by any Holder who has been a bona fide
Holder for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by
the Operating Partnership or by any Holder who has been a bona
fide Holder for at least six months, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Operating Partnership by or pursuant to
a Board Resolution may remove the Trustee and appoint a successor
Trustee with respect to all Notes, or (ii) subject to TIA Section
315(e), any Holder who has been a bona fide Holder for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Notes and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Notes of one or more series, the Operating
Partnership, by or pursuant to a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Notes of
that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Notes of one or more or all
of such series and that at any time there shall be only one Trustee with
respect to the Notes of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of
such vacancy, a
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successor Trustee with respect to the Notes of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Notes of such series delivered to the Operating Partnership
and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Notes of such series and to that extent
supersede the successor Trustee appointed by the Operating Partnership.
If no successor Trustee with respect to the Notes of any series shall
have been so appointed by the Operating Partnership or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who
has been a bona fide Holder of such series for at least six months may,
on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor
Trustee with respect to Notes of such series.
(f) The Operating Partnership shall give notice of each
resignation and each removal of the Trustee with respect to the Notes of
any series and each appointment of a successor Trustee with respect to
the Notes of any series in the manner provided for notices to the
Holders in section 106. Each notice shall include the name of the
successor Trustee with respect to the Notes of such series and the
address of its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Notes, every such successor Trustee shall execute,
acknowledge and deliver to the Operating Partnership and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee; but, on request of the Operating Partnership or
the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its lien and claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Notes of one or more (but not all) series, the
Operating Partnership, the retiring Trustee and each successor Trustee
with respect to the Notes of one or more series shall execute and
deliver an indenture supplemental hereto, pursuant to Article Nine
hereof, wherein each successor Trustee shall accept such appointment and
which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Notes of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring
Trustee is not retiring with respect to all Notes, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the retiring Trustee with
respect to the Notes of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring
Trustee, and (3) shall add to or change any of the provisions of
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this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Notes of that or those series
to which the appointment of such successor Trustee relates; but, on
request of the Operating Partnership or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Notes of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Operating
Partnership shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article Six.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case any
Notes shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Notes, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any
of the Notes remain Outstanding, the Trustee may appoint an Authenticating Agent
or Agents with respect to one or more series of Notes which shall be authorized
to act on behalf of the Trustee to authenticate Notes of such series issued upon
exchange, registration of transfer or partial redemption or repayment thereof,
and Notes so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly
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furnished to the Operating Partnership. Wherever reference is made in this
Indenture to the authentication and delivery of Notes by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Operating Partnership and shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws of the United States of America or of any State or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having
(or whose bank holding company has) a combined capital and surplus of not less
than $50,000,000 and subject to supervision or examination by Federal or state
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Notes may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Operating Partnership. The Trustee for any series of Notes may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Operating Partnership. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee for such series may appoint a
successor Authenticating Agent which shall be acceptable to the Operating
Partnership and shall give notice of such appointment to all Holders of the
series with respect to which such Authenticating Agent will serve in the manner
set forth in Section 106. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Operating Partnership agrees to pay to each Authenticating Agent
from time to time reasonable compensation including reimbursement of its
reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Notes of such series may have endorsed thereon, in addition to
or in lieu of the Trustee's
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certificate of authentication, an alternate certificate of authentication
substantially in the following form:
This is one of the Notes of the series designated therein referred to in
the within-mentioned Indenture.
State Street Bank and Trust Company of California, N.A.,
as Trustee
By:
----------------------------------
as Authenticating Agent
By:
----------------------------------
Authenticating Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND OPERATING PARTNERSHIP
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
or Guarantees, by receiving and holding the same, agrees with the Operating
Partnership and the Trustee that neither the Operating Partnership nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Note Registrar
shall be held accountable by reason of the disclosure of any information as to
the names and addresses of the Holders in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of each
year commencing with the first May 15 after the first issuance of Notes pursuant
to this Indenture, the Trustee shall transmit by mail to all Holders as provided
in TIA Section 313 (c) a brief report dated as of such May 15 if required by TIA
Section 313(a).
SECTION 703. OPERATING PARTNERSHIP TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS. The Operating Partnership will furnish or cause to be
furnished to the Trustee:
(a) semi-annually, not later than 15 days before the
Regular Record Date for interest for any series of Notes, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of such series as of such Regular
Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Operating
Partnership of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such
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list is furnished, provided, however, that, so long as the
Trustee is the Note Registrar, no such list shall be required to
be furnished
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF OPERATING PARTNERSHIP AND
SALES, LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The
Operating Partnership will not, in any transaction or series of related
transactions, consolidate with, or sell, lease, assign, transfer or otherwise
convey all or substantially all of its assets to, or merge with or into, any
other Person unless (i) either the Operating Partnership shall be the continuing
Person, or the successor Person (if other than the Operating Partnership) formed
by or resulting from any such consolidation or merger or which shall have
received the transfer of such assets shall be a corporation, partnership,
limited liability company or other entity organized and existing under the laws
of the United States of America or a State thereof or the District of Columbia
and shall expressly assume, by supplemental indenture executed by such successor
entity and delivered by it to the Trustee (which supplemental indenture shall
comply with Article Nine hereof and shall be reasonably satisfactory to the
Trustee), the due and punctual payment of the principal of (and premium, if any)
and interest payable in respect of, all of the Outstanding Notes, according to
their tenor, and the due and punctual performance and observance of all of the
other covenants and conditions contained in this Indenture and the Notes to be
performed or observed by the Operating Partnership; (ii) immediately after
giving effect to such transaction and treating any Debt (including Acquired
Debt) which becomes an obligation of the Operating Partnership or any of its
Affiliates as a result thereof as having been incurred by the Operating
Partnership or such Affiliate at the time of such transaction, no Event of
Default, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and shall be continuing; and
(iii) the Operating Partnership shall have delivered to the Trustee the
Officers' Certificate and Opinion of Counsel required pursuant to Section 803
below. In the event that the Operating Partnership is not the continuing
corporation, then, for purposes of clause (ii) of the preceding sentence, the
successor corporation shall be deemed to be the "Operating Partnership" referred
to in such clause (ii).
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, sale, lease, assignment, transfer, conveyance or merger and
upon any such assumption by the successor, such successor shall succeed to and
be substituted for and may exercise every right and power of the Operating
Partnership, with the same effect as if it had been named as the "Operating
Partnership" herein; and the predecessor corporation shall be released, except
in the case of a lease, from any further obligation under this Indenture and the
Notes.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, sale, lease, assignment, transfer, conveyance or merger permitted
under Section 801 is also subject to the condition precedent that the Trustee
receive an Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease, assignment, transfer or conveyance,
and the assumption by any successor corporation,
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complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Operating Partnership, when authorized
by or pursuant to a Board Resolution, the applicable Guarantors and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Operating
Partnership or any Guarantor and the assumption by any such successor of
the covenants of the Operating Partnership herein and in the Notes or
Guarantees; or
(2) to add to the covenants of the Operating Partnership or any
Guarantor for the benefit of the Holders of all or any series of Notes
(and if such covenants are to be for the benefit of less than all series
of Notes, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Operating Partnership or any Guarantor;
or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Notes (and if such Events of Default
are to be for the benefit of less than all series of Notes, stating that
such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for
a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may
provide for an immediate enforcement upon such default or may limit the
remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of that
or those series of Notes to which such additional Events of Default
apply to waive such default; or
(4) to add or change any provisions of this Indenture to
facilitate the issuance of the Notes in certificate form, provided that
such amendment shall not adversely affect the interest of the Holders of
any Notes in any material respect; or
(5) to secure the Notes or Guarantees; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such action shall not
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adversely affect the interests of the Holders of any series or any
related Guarantees in any material respect; or
(8) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the discharge,
defeasance or covenant defeasance, as the case may be, of any series of
Notes pursuant to Sections 401, 1202 and 1203; provided that any such
action shall not adversely affect the interests of the Holders of such
series and any related Guarantees or any other series of Notes in any
material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Notes of any series affected by such supplemental indenture, by Act
of said Holders delivered to the Operating Partnership, the Guarantors and the
Trustee, the Operating Partnership, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of the
Notes of such series or of modifying in any manner the rights of the Holders of
such series and any related Guarantees under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
any Outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of (or premium,
if any, on) or any installment of principal of, or premium, if any, or
interest with respect to, any Note; or reduce the principal amount
thereof or the rate or amount of interest thereon, or any premium
payable thereon, or adversely affect any right of the Holder of any Note
to repayment of such Note at such Holder's option, or change any Place
of Payment where, or the coin or currency in which, the principal of any
Note or any premium or interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after
the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date) or that would be provable in bankruptcy, or
(2) reduce the percentage in principal amount of the Outstanding
Notes of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements
of Section 1304 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1013, except to increase the percentage required to effect such
action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of any
Outstanding Note affected thereby, or
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any such Note.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall
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approve the substance thereof. A supplemental indenture which changes or
eliminates any covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular series of Notes,
or which modifies the rights of the Holders of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of
any supplemental indenture under this Article Nine, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder theretofore
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Nine 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 Operating Partnership shall so determine, new
Notes of any series so modified as to conform, in the opinion of the Trustee and
the Operating Partnership, to any such supplemental indenture may be prepared
and executed by the Operating Partnership and authenticated and delivered by the
Trustee in exchange for Outstanding Notes of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The
Operating Partnership covenants and agrees for the benefit of the Holders of any
series of Notes that it will duly and punctually pay the principal of (and
premium, if any) and interest on the Notes of that series in accordance with the
terms of such series of Notes and this Indenture.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. The Operating
Partnership shall maintain in each Place of Payment for any series of Notes an
office or agency where Notes of that series may be presented or surrendered for
payment or conversion, where Notes of that series may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Operating Partnership in respect of the Notes of that series and this
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Indenture may be served. The Operating Partnership will give prompt written
notice to the Trustee of the location, and any change in the location, of each
such office or agency. If at any time the Operating Partnership shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
shall be made or served at the Corporate Trust Office of the Trustee (and the
Operating Partnership hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands), and the Operating Partnership
hereby appoints the same as its agent to receive such presentations, surrenders,
notices and demands.
The Operating Partnership may from time to time designate one or more
other offices or agencies where the Notes of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Operating Partnership of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Notes of any series for such purposes. The Operating
Partnership will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified pursuant to Section 301 with
respect to a series of Notes, the Operating Partnership hereby designates as the
Place of Payment for any series of Notes the office or agency of the Operating
Partnership in the Borough of Manhattan, The City of New York, and initially
appoints the Trustee, at the office of its affiliate, State Street Bank and
Trust Company, which on the date of this Indenture are located at 00 Xxxxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 in such city and as its agent to receive
all such presentations, surrenders, notices and demands and appoints the
Trustee, at its Corporate Trust Office and at the office of its affiliate, State
Street Bank and Trust Company, in the Borough of Manhattan, The City of New
York, as Paying Agent and Note Registrar. The Operating Partnership may
subsequently appoint a different office or agency in the Borough of Manhattan,
The City of New York and a different Paying Agent and Note Registrar for the
Notes of any Series.
SECTION 1003. MONEY FOR NOTES PAYMENTS TO BE HELD IN TRUST. If the
Operating Partnership shall at any time act as its own Paying Agent with respect
to any series of any Notes, it will, on or before each due date of the principal
of (or premium, if any) or interest on the Notes of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto the sum in which
the Notes of such series are payable (except as otherwise specified pursuant to
Section 301 for the Notes of such series) sufficient to pay the principal (and
premium, if any) and interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Operating Partnership shall have one or more Paying Agents
for any series of Notes, it will, on or before each due date of the principal of
(or premium, if any) or interest on any Notes of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) and
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium and interest and (unless such Paying
Agent is the Trustee) the Operating Partnership will promptly notify the Trustee
of its action or failure so to act.
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The Operating Partnership will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium, if any) and interest on the Notes in trust for the benefit of
the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Operating
Partnership (or any other obligor upon the Notes) in the making of any
such payment of principal (or premium, if any) or interest; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Operating Partnership may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Operating Partnership Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Operating Partnership or such Paying Agent, such
sums to be held by the Trustee upon the same trusts as those upon which such
sums were held by the Operating Partnership or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or held by the
Operating Partnership, in trust for the payment of the principal of (or premium,
if any) or interest on any Note of any series and remaining unclaimed for two
years after such principal (or premium, if any), or interest has become due and
payable shall, if such money was then on deposit with the Trustee or any Paying
Agent, be paid to the Operating Partnership upon Operating Partnership Request
or (if then held by the Operating Partnership) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Operating Partnership and the Guarantors for payment
of such principal of (or premium, if any) or interest on, such Note, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Operating Partnership as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Operating Partnership cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Operating Partnership.
SECTION 1004. AGGREGATE DEBT TEST. The Operating Partnership will not,
and will not permit any of its Subsidiaries to, incur any Debt (including,
without limitation, Acquired Debt) if, immediately after giving effect to the
incurrence of such Debt and the application of the proceeds therefrom on a pro
forma basis, the aggregate principal amount of all outstanding Debt of the
Operating Partnership and its Subsidiaries (determined on a consolidated basis
in accordance with generally accepted accounting principles) is greater than 60%
of the sum of (without duplication) (i) the Total Assets of the Operating
Partnership and its Subsidiaries
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as of the last day of the then most recently ended fiscal quarter and (ii) the
aggregate purchase price of any real estate assets or mortgages receivable
acquired, and the aggregate amount of any securities offering proceeds received
(to the extent such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Debt), by the Operating Partnership or
any of its Subsidiaries since the end of such fiscal quarter, including the
proceeds obtained from the incurrence of such additional Debt, determined on a
consolidated basis in accordance with generally accepted accounting principles.
For purposes of the foregoing Debt shall be deemed to be "incurred" by the
Operating Partnership or a Subsidiary whenever the Operating Partnership and its
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
SECTION 1005. DEBT SERVICE TEST. The Operating Partnership will not,
and will not permit any of its Subsidiaries to, incur any Debt (including,
without limitation, Acquired Debt) if the ratio of Consolidated Income Available
for Debt Service to the Annual Debt Service Charge for the period consisting of
the four consecutive fiscal quarters most recently ended prior to the date on
which such additional Debt is to be incurred shall have been less than 1.5:1 on
a pro forma basis after giving effect to the incurrence of such Debt and the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt (including, without limitation, Acquired Debt)
incurred by the Operating Partnership or any of its Subsidiaries since the first
day of such four-quarter period had been incurred, and the application of the
proceeds therefrom (including to repay or retire other Debt) had occurred, on
the first day of such period, (ii) the repayment or retirement of any other Debt
of the Operating Partnership or any of its Subsidiaries since the first day of
such four-quarter period had occurred on the first day of such period (except
that, in making such computation, the amount of Debt under any revolving credit
facility, line of credit or similar facility shall be computed based upon the
average daily balance of such Debt during such period), and (iii) in the case of
any acquisition or disposition by the Operating Partnership or any of its
Subsidiaries of any asset or group of assets, in any such case with a fair
market value (determined in good faith by the Board of Directors) in excess of
$1 million, since the first day of such four-quarter period, whether by merger,
stock purchase or sale or asset purchase or sale or otherwise, such acquisition
or disposition had occurred as of the first day of such period with the
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation. If the Debt giving rise to the need to
make the foregoing calculation or any other Debt incurred after the first day of
the relevant four-quarter period bears interest at a floating rate then, for
purposes of calculating the Annual Debt Service Charge, the interest rate on
such Debt shall be computed on a pro forma basis by applying the average daily
rate which would have been in effect during the entire such four-quarter period
to the greater of the amount of such Debt outstanding at the end of such period
or the average amount of Debt outstanding during such period. For purposes of
the foregoing Debt shall be deemed to be "incurred" by the Operating Partnership
or a Subsidiary whenever the Operating Partnership and its Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof.
SECTION 1006. SECURED DEBT TEST. The Operating Partnership will not,
and will not permit any of its Subsidiaries to, incur any Debt (including,
without limitation, Acquired Debt) secured by any Lien on any property or assets
of the Operating Partnership or any of its Subsidiaries, whether owned on the
date of this Indenture or thereafter acquired, if, immediately after giving
effect to the incurrence of such Debt and the application of the proceeds
therefrom on a pro forma basis, the aggregate principal amount (determined on a
consolidated basis in
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accordance with generally accepted accounting principles) of all outstanding
Debt of the Operating Partnership and its Subsidiaries which is secured by any
Lien on any property or assets of the Operating Partnership or any of its
Subsidiaries is greater than 40% of the sum of (without duplication) (i) the
Total Assets of the Operating Partnership and its Subsidiaries as of the last
day of the then most recently ended fiscal quarter and (ii) the aggregate
purchase price of any real estate assets or mortgages receivable acquired, and
the aggregate amount of any securities offering proceeds received (to the extent
such proceeds were not used to acquire real estate assets or mortgages
receivable or used to reduce Debt), by the Operating Partnership or any of its
Subsidiaries since the end of such fiscal quarter, including the proceeds
obtained from the incurrence of such additional Debt, determined on a
consolidated basis in accordance with generally accepted accounting principles.
For purposes of the foregoing Debt shall be deemed to be "incurred" by the
Operating Partnership or a Subsidiary whenever the Operating Partnership and its
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
SECTION 1007. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Operating
Partnership will not have at any time Total Unencumbered Assets of less than
150% of the aggregate principal amount of all outstanding Unsecured Debt of the
Operating Partnership and its Subsidiaries, determined on a consolidated basis
in accordance with generally accepted accounting principles.
SECTION 1008. EXISTENCE. Subject to Article Eight, the Operating
Partnership will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights (charter and statutory) and
franchises; provided, however, that the Operating Partnership will not be
required to preserve any right or franchise if the applicable Board of Directors
determines that the preservation thereof is no longer desirable in the conduct
of its business and that the loss thereof is not disadvantageous in any material
respect to the Holders of the Notes Outstanding under this Indenture.
SECTION 1009. MAINTENANCE OF PROPERTIES. The Operating Partnership will
cause all of its properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Operating Partnership may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times.
SECTION 1010. INSURANCE. The Operating Partnership will, and will cause
each of its Subsidiaries to, keep in force upon all of its properties and
operations policies of insurance carried with responsible companies in such
amounts and covering all such risks as shall be customary in the industry in
accordance with prevailing market conditions and availability.
SECTION 1011. PAYMENT OF TAXES AND OTHER CLAIMS. The Operating
Partnership will pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (1) all taxes, assessments and governmental
charges levied or imposed upon it or any Subsidiary or upon the income, profits
or property of the Operating Partnership or any Subsidiary, and (2) all lawful
claims for labor, materials and supplies which, if unpaid, might by
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law become a lien upon the property of the Operating Partnership or any
Subsidiary; provided, however, that the Operating Partnership will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1012. PROVISION OF FINANCIAL INFORMATION. The Operating
Partnership will:
(1) file with the Trustee, within 15 days after the Operating
Partnership or the General Partner is required to file the same with the
Commission, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the
foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Operating Partnership or the General
Partner may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934; or, if the
Operating Partnership or the General Partner is not required to file
information, documents or reports pursuant to any of such Sections, then
it will file with the Trustee and the commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Operating Partnership and the General Partner with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to the Holders, within 30 days after the
filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Operating Partnership
and the Guarantor pursuant to paragraphs (1) and (2) of this Section as
may be required by rules and regulations prescribed from time to time by
the Commission.
SECTION 1013. ADDITIONAL SUBSIDIARY GUARANTEES. (a) The Operating
Partnership will not permit any of its Subsidiaries that is not a Subsidiary
Guarantor to guarantee or secure through the granting of Liens, the payment of
any Debt of the Company or any Guarantor and (b) the Operating Partnership will
not and will not permit any of its Subsidiaries to pledge any intercompany notes
representing obligations of any of its Subsidiaries, to secure the payment of
any debt of the Operating Partnership or any Guarantor, in each case unless such
Subsidiary, the Operating Partnership and the Trustee execute and deliver a
supplemental indenture evidencing such Subsidiary's Guarantee (providing for the
unconditional Guarantee by such Subsidiary, on a senior basis, of the Notes).
SECTION 1014. WAIVER OF CERTAIN COVENANTS. The Operating Partnership
may omit in any particular instance to comply with any term, provision or
condition
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set forth in Sections 1004 to 1012, inclusive, if before or after the time for
such compliance the Holders of at least a majority in principal amount of all
Outstanding Notes of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Operating Partnership and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 1015. STATEMENT AS TO COMPLIANCE. The Operating Partnership
will deliver to the Trustee, within 120 days after the end of each fiscal year,
a brief certificate from its General Partner's principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Operating Partnership's compliance with all conditions and
covenants under this Indenture and, in the event of any noncompliance,
specifying such noncompliance and the nature and status thereof., provided that
if the Operating Partnership has been succeeded to by a corporate successor
pursuant to the provisions hereof such certificate will be from such successor's
principal executive officer, principal financial officer or principal accounting
officer. For purposes of this Section 1015, such compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. APPLICABILITY OF ARTICLE. Notes of any series shall be
redeemable, in whole or in part, before their Stated Maturity at the option of
the Operating Partnership on any date (a "Redemption Date"), at the Redemption
Price provided that installments of interest on Notes which are due and payable
on an Interest Payment Date falling on or prior to the relevant Redemption Date
shall be payable to the holders of such Notes registered as such at the close of
business on the relevant record date according to their terms and the provisions
of this Indenture in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Operating Partnership to redeem any Notes shall be evidenced by or pursuant
to a Board Resolution. In case of any redemption at the election of the
Operating Partnership of less than all of the Notes of any series, the Operating
Partnership shall, at least 45 days prior to the giving of the notice of
redemption referred to in Section 1104 (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes of such series to be redeemed.
SECTION 1103. SELECTION BY TRUSTEE OF NOTES TO BE REDEEMED. If less
than all the Notes of any series are to be redeemed, the particular Notes to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Notes of such series not previously called for
redemption (excluding any such Outstanding Notes held by the Operating
Partnership or any of its Subsidiaries), by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Notes of that
series
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or any integral multiple thereof) of the principal amount of Notes of such
series of a denomination larger than the minimum authorized denomination for
Notes of that series.
The Trustee shall promptly notify the Operating Partnership and the Note
Registrar (if other than itself) in writing of the Notes selected for redemption
and, in the case of any Notes selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal amount of such Note which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date to each Holder to be redeemed, but failure to
give such notice in the manner herein provided to the Holder of any Note
designated for redemption as a whole or in part, or any defect in the notice to
any such Holder, shall not affect the validity of the proceedings for the
redemption of any other such Note or portion thereof.
Any notice that is mailed to the Holders in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 1106, if any,
(3) if less than all Outstanding Notes of any series are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Note or Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the notice
shall state that on and after the Redemption Date, upon surrender of
such Note, the Holder will receive, without a charge, a new Note or
Notes of such series of authorized denominations for the principal
amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106,
will become due and payable upon each such Note, or the portion thereof,
to be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date,
(6) the Place or Places of Payment where such Notes, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, and
(7) the CUSIP number and series of such Note.
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SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At or prior to 12:00 noon
(New York Time) on any Redemption Date, the Operating Partnership shall deposit
with the Trustee or with a Paying Agent (or, if the Operating Partnership is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on all the Notes or portions thereof which are to
be redeemed on that date.
SECTION 1106. NOTES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Notes so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified (together with accrued interest to the Redemption Date), and from and
after such date (unless the Operating Partnership shall default in the payment
of the Redemption Price or accrued interest) such Notes shall cease to bear
interest. Upon surrender of any such Note for redemption in accordance with said
notice such Note shall be paid by the Operating Partnership at the Redemption
Price, together with accrued interest to the Redemption Date.
Installments of interest on Notes which are due and payable on an
Interest Payment Date falling on or prior to the relevant Redemption Date shall
be payable to the Holders of such Notes registered as such at the close of
business on the relevant record date according to their terms and the provisions
of the Indenture.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by or provided in the
Note.
SECTION 1107. NOTES REDEEMED IN PART. Any Note which is to be redeemed
only in part (pursuant to the provisions of this Article) shall be surrendered
at a Place of Payment therefor (with, if the Operating Partnership or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Operating Partnership and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing) and the Operating
Partnership shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge a new Note or Notes of the same
series, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Note so surrendered.
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. OPERATING PARTNERSHIP'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE. The Operating Partnership may at its option by Board
Resolution, at any time, with respect to any series of Notes elect to have
Section 1202 or Section 1203 be applied to such Outstanding Notes upon
compliance with the conditions set forth below in this Article. The Operating
Partnership's right, if any, to elect defeasance pursuant to Section 1202 or
covenant defeasance pursuant to Section 1203 may only be exercised with respect
to all of the Outstanding Notes of any series.
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SECTION 1202. DEFEASANCE AND DISCHARGE. Upon the Operating
Partnership's exercise of the above option applicable to this Section with
respect to any Notes of or within a series, the Operating Partnership shall be
deemed to have been discharged from its obligations with respect to such
Outstanding Notes on the date the conditions set forth in Section 1204 are
satisfied (hereinafter "defeasance"). For this purpose, such defeasance means
that the Operating Partnership shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Notes, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1205
and the other Sections of this Indenture referred to in clauses (A) through (D)
below, and to have satisfied all of its other obligations under such Notes and
this Indenture insofar as such Notes are concerned (and the Trustee, at the
expense of the Operating Partnership, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
outstanding Notes to receive, solely from the trust fund described in Section
1204 and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any) and interest, on such Notes when such
payments are due, (B) the Operating Partnership's obligations with respect to
such Notes under Sections 304, 305, 306, 1002 and 1003, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder (including, without
limitation, those in Section 606 hereof) and (D) this Article Twelve. Subject to
compliance with this Article Twelve, the Operating Partnership may exercise its
option under this Section notwithstanding the prior exercise of its option under
Section 1203 with respect to such Notes.
SECTION 1203. COVENANT DEFEASANCE. Upon the Operating Partnership's
exercise of the above option applicable to this Section with respect to any
Notes of or within a series, the Operating Partnership shall be released from
its obligations under Sections 1004 to 1012, inclusive, (except that the
Operating Partnership shall remain subject to the covenant set forth in Section
1008 to preserve and keep in full force and effect its corporate existence,
except as permitted under Article Eight) and its obligations under any other
covenant, with respect to such Outstanding Notes appertaining thereto on and
after the date the conditions set forth in Section 1204 are satisfied
(hereinafter, "covenant defeasance"), and such Notes shall thereafter be deemed
to be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1012, inclusive, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Notes the Operating Partnership may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a default or an Event of Default under Section 501(3) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby.
SECTION 1204. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1202 or Section 1203
to any Outstanding Notes of or within a series:
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(a) The Operating Partnership shall irrevocably have
deposited or caused to be deposited with the Trustee (or another
trustee satisfying the requirements of Section 607 who shall
agree to comply with the provisions of this Article Twelve
applicable to it) funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Notes,
(1) an amount as is then specified as payable at Stated Maturity
or, if such defeasance or covenant defeasance is to be effected
in compliance with subsection (f) below, on the relevant
Redemption Date, as the case may be, (2) Government Obligations
applicable to such Notes which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and
interest on such Notes money in an amount as is then specified as
payable at Stated Maturity or, if such defeasance or covenant
defeasance is to be effected in compliance with subsection (f)
below, on the relevant Redemption Date, as the case may be, or
(3) a combination thereof, in any case, in an amount sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge the principal of (and
premium, if any) and interest on such Outstanding Notes on the
Stated Maturity of such principal or installment of principal or
interest on the applicable Redemption Date, as the case may be.
(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute, a default
under, this Indenture or any other material agreement or
instrument to which the Operating Partnership is a party or by
which it is bound.
(c) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with
respect to such Notes shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and
501(7) are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration
of such period).
(d) In the case of an election under Section 1202, the
Operating Partnership shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the Operating Partnership has
received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this
Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of such
Outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such defeasance had not occurred.
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(e) In the case of an election under Section 1203, the
Operating Partnership shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of such
Outstanding 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 times as would have
been the case if such covenant defeasance had not occurred.
(f) If the monies or Government Obligations or combination
thereof, as the case may be, deposited under subsection (a) above
are sufficient to pay the principal of, and premium, if any, and
interest on such Notes provided such Notes are redeemed on a
particular Redemption Date, the Operating Partnership shall have
given the Trustee irrevocable instructions to redeem such Notes
on such date and to provide notice of such redemption to Holders
as provided in or pursuant to this Indenture.
(g) The Operating Partnership shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent to the defeasance under
Section 1202 or the covenant defeasance under Section 1203 (as
the case may be) have been complied with and an Opinion of
Counsel to the effect that, as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Operating
Partnership's option under Section 1202 or Section 1203 (as the
case may be), registration is not required under the Investment
Company Act of 1940, as amended, by the Operating Partnership,
with respect to the trust funds representing such deposit or by
the Trustee for such trust funds.
SECTION 1205. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1205, the "Trustee") pursuant to
Section 1204 in respect of any Outstanding Notes of any series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Notes and this Indenture, to the payment, either directly or through any Paying
Agent (other than the Operating Partnership acting as its own Paying Agent) as
the Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal (and premium, if any) and interest,
but such money need not be segregated from other funds except to the extent
required by law.
The Operating Partnership shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1204 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Notes.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Operating Partnership from
time to time upon Operating Partnership Request any money or Government
Obligations (or other property and any proceeds
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therefrom) held by it as provided in Section 1204 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
SECTION 1206. REINSTATEMENT. If the Trustee or Paying Agent is unable
to apply any cash or Government Obligations deposited pursuant to Section 1204
in accordance with this Indenture or the Notes of the applicable series by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Operating Partnership's obligations under this
Indenture and the Notes of such series shall be revived and reinstated as though
no deposit had occurred pursuant to Section 1204 until such time as the Trustee
or Paying Agent is permitted to apply such money in accordance with this
Indenture and the Notes of such series; provided, however, that if the Operating
Partnership makes any payment of principal of, premium, if any, or interest on
any Note of such series following the reinstatement of its obligations, the
Operating Partnership shall be subrogated to the rights of the Holders of such
Notes to receive such payment from the cash and Government Obligations held by
the Trustee or Paying Agent.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF NOTES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of any series may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be made, given or taken by Holders of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders
of any series for any purpose specified in Section 1301, to be
held at such time and at such place in The City of New York as
the Trustee shall determine. Notice of every meeting of Holders
of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at
such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(b) In case at any time the Operating Partnership,
pursuant to a Board Resolution, or the Holders of at least 25% in
principal amount of the Outstanding Notes of any series shall
have requested the Trustee to call a meeting of the Holders of
such series for any purpose specified in Section 1301, by written
request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to
cause the meeting to be held as provided herein, then the
Operating Partnership or the Holders of such series in the amount
above specified, as the
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case may be, may determine the time and the place in The City of
New York, for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a)
of this Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of any series, a Person shall be (1) a Holder of
one or more Outstanding Notes of such series, or (2) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Notes of such series by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders of any
series shall be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel, any representatives of the
Guarantors and their counsel and any representatives of the Operating
Partnership and its counsel.
SECTION 1304. QUORUM; ACTION. The Persons entitled to vote a majority
in principal amount of the Outstanding Notes of a series shall constitute a
quorum for a meeting of Holders of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Notes of a series,
the Persons entitled to vote such specified percentage which is less or more
than a majority in principal amount of the Outstanding Notes of such series
shall constitute a quorum. In the absence of a quorum within 30 minutes after
the time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of such series, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of any adjourned meeting shall state expressly the percentage,
as provided above, of the principal amount of the Outstanding Notes of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Notes of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less or more
than a majority, in principal amount of the Outstanding Notes of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Notes of that
series.
Any resolution passed or decision taken at any meeting of Holders of any
series duly held in accordance with this Section shall be binding on all the
Holders of such series, whether or not present or represented at the meeting.
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Notwithstanding the foregoing provisions of this Section 1304, if any
action is to be taken at a meeting of Holders of any series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that this Indenture expressly provides may be made, given or taken by the
Holders of a specified percentage in principal amount of all Outstanding Notes
affected thereby, or by the Holders of a specified percentage in principal
amount of the Outstanding Notes of such series and each other series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Notes of such series
that are entitled to vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall
be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has
been made, given or taken under this Indenture.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of a series in regard to
proof of the holding of Notes of such series and of the
appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Notes shall be
proved in the manner specified in Section 104 and the appointment
of any proxy shall be proved in the manner specified in Section
104.
(b) The Trustee shall, by an instrument in writing appoint
a temporary chairman of the meeting, unless the meeting shall
have been called by the Operating Partnership or by Holders as
provided in Section 1302(b), in which case the Operating
Partnership or the Holders of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote
a majority in principal amount of the Outstanding Notes of such
series represented at the meeting.
(c) At any meeting each Holder of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Notes of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any
meeting in respect of any Note challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a
Holder of such series or proxy.
(d) Any meeting of Holders of any series duly called
pursuant to Section 1302 at which a quorum is present may be
adjourned from time to time by
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Persons entitled to vote a majority in principal amount of the
Outstanding Notes of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of any series shall be
by written ballots on which shall be subscribed the signatures of the Holders of
such series or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Notes of such series held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
any series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Operating Partnership and another to the Trustee
to be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE FOURTEEN
THE GUARANTEES
SECTION 1401. GUARANTEES. The provisions of this Article Fourteen shall
be applicable to the Notes and Guarantees. Each Guarantor (which term includes
any successor Person under this Indenture and any additional Subsidiary
Guarantor pursuant to Section 1013 of this Indenture) for consideration received
hereby jointly and severally unconditionally and irrevocably guarantees on a
senior basis (each a "Guarantee", and collectively, the "Guarantees") to the
Holders from time to time of the Notes (a) the full and prompt payment of the
principal of and any premium, if any, on any Note when and as the same shall
become due, whether at the maturity thereof, by acceleration, redemption or
otherwise and (b) the full and prompt payment of any interest on any Note when
and as the same shall become due and payable. Each and every default in the
payment of the principal of or interest or any premium on any Note shall give
rise to a separate cause of action hereunder, and separate suits may be brought
hereunder as each cause of action arises. The obligations of the Guarantors
hereunder shall be evidenced by Guarantees accompanying the Notes issued
hereunder.
An Event of Default under this Indenture or the Notes shall constitute
an event of default under the Guarantees, and shall entitle the Holders to
accelerate the obligations of the Guarantors hereunder in the same manner and to
the same extent as the obligations of the Company.
The obligations of the Guarantors hereunder shall be absolute and
unconditional and shall remain in full force and effect until the entire
principal and interest and any premium on the Notes shall have been paid or
provided for in accordance with provisions of this Indenture, and
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such obligations shall not be affected, modified or impaired upon the happening
from time to time of any event, including without limitation any of the
following, whether or not with notice to, or the consent of, the Guarantors:
(a) the failure to give notice to the Guarantors of the
occurrence of an Event of Default;
(b) the waiver, surrender, compromise, settlement, release
or termination of the payment, performance or observance by the
Operating Partnership or the Guarantors of any or all of the
obligations, covenants or agreements of either of them contained
in this Indenture or the Notes;
(c) the acceleration, extension or any other changes in
the time for payment of any principal of or interest or any
premium on any Note or for any other payment under this Indenture
or of the time for performance of any other obligations,
covenants or agreements under or arising out of this Indenture or
the Notes;
(d) the modification or amendment (whether material or
otherwise) of any obligation, covenant or agreement set forth in
this Indenture or the Notes;
(e) the taking or the omission of any of the actions
referred to in this Indenture and in any of the actions under the
Notes;
(f) any failure, omission, delay or lack on the part of
the Trustee to enforce, assert or exercise any right, power or
remedy conferred on the Trustee in this Indenture, or any other
action or acts on the part of the Trustee or any of the Holders
from time to time of the Notes;
(g) the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets,
marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition with creditors or
readjustment of, or other similar proceedings affecting the
Guarantors or the Operating Partnership or any of the assets of
any of them, or any allegation or contest of the validity of the
Guarantee in any such proceeding;
(h) to the extent permitted by law, the release or
discharge by operation of law of the Guarantors from the
performance or observance of any obligation, covenant or
agreement contained in this Indenture;
(i) to the extent permitted by law, the release or
discharge by operation of law of the Operating Partnership from
the performance or observance of any obligation, covenant or
agreement contained in this Indenture;
(j) the default or failure of the Operating Partnership or
the Trustee fully to perform any of its obligations set forth in
this Indenture or the Notes;
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(k) the invalidity, irregularity or unenforceability of
this Indenture or the Notes or any part of any thereof;
(l) any judicial or governmental action affecting the
Operating Partnership or any Notes or consent or indulgence
granted by the Operating Partnership by the Holders or by the
Trustee; or
(m) the recovery of any judgment against the Operating
Partnership or any action to enforce the same or any other
circumstance which might constitute a legal or equitable
discharge of a surety or guarantor.
The Guarantees shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Operating Partnership
for liquidation or reorganization, should the Operating Partnership become
insolvent or make an assignment for the benefit of creditors or should a
receiver or trustee be appointed for all or any significant part of the
Operating Partnership's assets, and shall, to the fullest extent permitted by
law, continue to be effective or be reinstated, as the case may be, if at any
time any payment in respect of the Notes is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or returned by any
obligee on the Notes, whether as a "voidable preference," "fraudulent transfer"
or otherwise, all as though such payment had not been made. In the event that
any payment, or any part thereof, is rescinded, reduced, restored or returned,
the Notes shall, to the fullest extent permitted by law, be reinstated and
deemed reduced only by such amount paid and not so rescinded, reduced, restored
or returned.
For purposes of this Article 14, each Subsidiary Guarantor's liability
(a Subsidiary Guarantor's "Base Guaranty Liability") shall be that amount from
time to time equal to the aggregate liability of a Guarantor hereunder, but
shall be limited to the lesser of (A) the aggregate amount of the obligation as
stated in the second sentence of this Section 1401 with respect to the Notes,
and (B) the amount, if any, which would not have (i) rendered such Subsidiary
Guarantor "insolvent" (as such term is defined in Section 101(29) of the Federal
Bankruptcy Code and in Section 271 of the Debtor and Creditor Law of the State
of New York, as each is in effect at the date of this Indenture) or (ii) left it
with unreasonably small capital at the time its Guarantee of the Notes was
entered into, after giving effect to the incurrence of existing Debt immediately
prior to such time, provided that, it shall be a presumption in any lawsuit or
other proceeding in which a Subsidiary Guarantor is a party that the amount
guaranteed is the amount set forth in (A) above unless a creditor, or
representative of creditors of such Subsidiary Guarantor or a trustee in
bankruptcy of the Subsidiary Guarantor, as debtor in possession, otherwise
proves in such a lawsuit that the aggregate liability of the Subsidiary
Guarantor is limited to the amount set forth in (B). In making any determination
as to the solvency or sufficiency of capital of a Subsidiary Guarantor in
accordance with the previous sentence, the right of such Subsidiary Guarantor to
contribution from other Guarantors, to subrogation pursuant to the next
paragraph and any other rights such Subsidiary Guarantor may have, contractual
or otherwise, shall be taken into account.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantees.
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The validity and enforceability of any Guarantee shall not be affected
by the fact that it is not affixed to any particular Note.
Each of the Guarantors hereby agrees that its Guarantee set forth in
Section 1401 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Guarantee.
If an officer of a Guarantor whose signature is on this Indenture or a
Note no longer holds that office at the time the Trustee authenticates such Note
or at any time thereafter, such Guarantor's Guarantee of such Note shall be
valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of any Guarantee set forth in
this Indenture on behalf of the Guarantor.
SECTION 1402. PROCEEDINGS AGAINST THE GUARANTORS. In the event of a
default in the payment of principal of or any premium on any Note when and as
the same shall become due, whether at the Stated Maturity thereof, by
acceleration, call for redemption or otherwise, or in the event of a default in
the payment of any interest on any Note when and as the same shall become due,
the Trustee shall have the right to proceed first and directly against the
Guarantors under this Indenture without first proceeding against the Operating
Partnership or exhausting any other remedies which it may have and without
resorting to any other Note held by the Trustee.
The Trustee shall have the right, power and authority to do all things
it deems necessary or otherwise advisable to enforce the provisions of this
Indenture relating to the Guarantees and protect the interests of the Holders of
the Notes and, in the event of a default in payment of the principal of or any
premium on any Note when and as the same shall become due, whether at the Stated
Maturity thereof, by acceleration, call for redemption or otherwise, or in the
event of a default in the payment of any interest on any Note when and as the
same shall become due, the Trustee may institute or appear in such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any of its rights and the rights of the Holders, whether for the
specific enforcement of any covenant or agreement in this Indenture relating to
the Guarantee or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy. Without limiting the generality of the
foregoing, in the event of a default in payment of the principal of or interest
or any premium on any Note when due, the Trustee may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Guarantors and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Guarantors, wherever situated.
SECTION 1403. GUARANTEES FOR BENEFIT OF HOLDERS OF NOTES. The
Guarantees contained in this Indenture are entered into by the Guarantors for
the benefit of the Holders from time to time of the Notes. Such provisions shall
not be deemed to create any right in, or to be in whole or in part for the
benefit of, any person other than the Trustee, the Guarantors, the Holders from
time to time of the Notes, and their permitted successors and assigns.
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SECTION 1404. MERGER OR CONSOLIDATION OF GUARANTORS. Each Guarantor
will not, in any transaction or series of related transactions, consolidate
with, or sell, lease, assign, transfer or otherwise convey all or substantially
all of its assets to, or merge with or into, any other Person unless (i) either
such Guarantor shall be the continuing Person, or the successor Person (if other
than such Guarantor) formed by or resulting from any such consolidation or
merger or which shall have received the transfer of such assets is a
corporation, partnership, limited liability company or other entity organized
and existing under the laws of the United States of America or a State thereof
or the District of Columbia and shall expressly assume, by supplemental
indenture executed by such successor corporation and delivered by it to the
Trustee (which supplemental indenture shall comply with Article Nine hereof and
shall be reasonably satisfactory to the Trustee), all of such Guarantor's
obligations with respect to Outstanding Notes and the observance of all of the
covenants and conditions contained in this Indenture and its Guarantee to be
performed or observed by the Guarantor; (ii) immediately after giving effect to
such transaction, no Event of Default, and no event which, after notice or the
lapse of time, or both, would become an Event of Default, shall have occurred
and shall be continuing; and (iii) such Guarantor shall have delivered to the
Trustee the Officers' Certificate and Opinion of Counsel required pursuant to
below. In the event that such Guarantor is not the continuing corporation, then,
for purposes of clause (ii) of the preceding sentence, the successor corporation
shall be deemed to be such "Guarantor" referred to in such clause (ii). Any
consolidation, merger, sale, lease, assignment, transfer or conveyance permitted
under Section 1404 is also subject to the condition precedent that the Trustee
receive an Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease, assignment, transfer or conveyance,
and the assumption by any successor corporation, complies with the provisions of
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 1405. ADDITIONAL GUARANTORS. Any Person may become a Guarantor
by executing and delivering to the Trustee (a) a supplemental indenture in form
and substance satisfactory to the Trustee, which subjects such person to the
provisions of this Indenture as a Guarantor, and (b) an Opinion of Counsel to
the effect that such supplemental indenture has been duly authorized and
executed by such person and constitutes the legal, valid, binding and
enforceable obligation of such person (subject to such customary exceptions
concerning fraudulent conveyance laws, creditors' rights and equitable
principles as may be acceptable to the Trustee in its discretion).
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
AMB PROPERTY, L.P.
By: AMB PROPERTY CORPORATION,
as General Partner
By:
-------------------------
AMB PROPERTY CORPORATION.
By:
-------------------------
AMB PROPERTY II, L.P.
By: AMB PROPERTY CORPORATION,
as General Partner
By:
-------------------------
LONG GATE LLC.
By: AMB PROPERTY CORPORATION,
as Manager
By:
-------------------------
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XXXXX XXXXXX XXXX AND TRUST
COMPANY OF CALIFORNIA, N.A., as Trustee
By:
------------------------
Print Name:_________________
Title:______________________
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