EXHIBIT 4.1
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HOST MARRIOTT, L.P.,
Issuer
MARINE MIDLAND BANK,
as Trustee
----------------------
INDENTURE
Dated as of____________, 1998
----------------------
$____________
6.56% Callable Notes due 2005
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TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE.................................1
Section 1.1. Definitions..........................................................1
Section 1.2. Other Definitions....................................................8
Section 1.3. Incorporation by Reference of Trust Indenture Act....................8
Section 1.4. Rules of Construction................................................8
ARTICLE 2. THE SECURITIES.............................................................9
Section 2.1. Issuable in Series; Form and Dating..................................9
Section 2.2. Establishment of Terms of Series of Securities.......................9
Section 2.3. Execution and Authentication.........................................9
Section 2.4. Registrar and Paying Agent..........................................10
Section 2.5. Paying Agent to Hold Money in Trust.................................11
Section 2.6. Securityholder Lists................................................11
Section 2.7. Transfer and Exchange...............................................11
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities....................11
Section 2.9. Outstanding Securities..............................................12
Section 2.10. Treasury Securities................................................12
Section 2.11. Temporary Securities...............................................13
Section 2.12. Cancellation.......................................................13
Section 2.13. Defaulted Interest.................................................13
Section 2.14. CUSIP Numbers......................................................13
ARTICLE 3. REDEMPTION................................................................14
Section 3.1. Optional Redemption.................................................14
Section 3.2. Mandatory Redemption................................................14
Section 3.3. Notice to Trustee...................................................14
Section 3.4. Selection of Securities to be Redeemed..............................14
Section 3.5. Notice of Redemption................................................14
Section 3.6. Effect of Notice of Redemption......................................15
Section 3.7. Deposit of Redemption Price.........................................16
Section 3.8. Securities Redeemed in Part.........................................16
ARTICLE 4. COVENANTS.................................................................16
Section 4.1. Payment of Principal and Interest...................................16
Section 4.2. Reports.............................................................16
Section 4.3. Compliance Certificate..............................................16
Section 4.4. Corporate Existence.................................................16
Section 4.5. Limitation on Incurrences of Indebtedness...........................16
Section 4.6. Maintenance of Office or Agency.....................................17
i
ARTICLE 5. SUCCESSORS................................................................18
Section 5.1. When Company May Merge, Etc.........................................18
Section 5.2. Successor Person Substituted........................................18
ARTICLE 6. DEFAULTS AND REMEDIES.....................................................18
Section 6.1. Events of Default...................................................18
Section 6.2. Acceleration of Maturity; Rescission and Annulment..................19
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.....20
Section 6.4. Trustee May File Proofs of Claim....................................21
Section 6.5. Trustee May Enforce Claims Without Possession of Securities.........22
Section 6.6. Application of Money Collected......................................22
Section 6.7. Limitation on Suits.................................................22
Section 6.8. Unconditional Right of Holders to Receive Principal and Interest....23
Section 6.9. Restoration of Rights and Remedies..................................23
Section 6.10. Rights and Remedies Cumulative.....................................23
Section 6.11. Delay or Omission Not Waiver.......................................23
Section 6.12. Control by Holders.................................................24
Section 6.13. Waiver of Past Defaults............................................24
Section 6.14. Undertaking for Costs..............................................24
ARTICLE 7. TRUSTEE...................................................................25
Section 7.1. Duties of Trustee...................................................25
Section 7.2. Rights of Trustee...................................................26
Section 7.3. Individual Rights of Trustee........................................27
Section 7.4. Trustee's Disclaimer................................................27
Section 7.5. Notice of Defaults..................................................27
Section 7.6. Reports by Trustee to Holders.......................................27
Section 7.7. Compensation and Indemnity..........................................28
Section 7.8. Replacement of Trustee..............................................28
Section 7.9. Successor Trustee by Merger, etc....................................29
Section 7.10. Eligibility; Disqualification......................................29
Section 7.11. Preferential Collection of Claims Against Company..................29
ARTICLE 8. SATISFACTION AND DISCHARGE; DEFEASANCE....................................30
Section 8.1. Satisfaction and Discharge of Indenture.............................30
Section 8.2. Application of Trust Funds; Indemnification.........................31
Section 8.3. Legal Defeasance of Securities of any Series........................31
Section 8.4. Covenant Defeasance.................................................33
Section 8.5. Repayment to Company................................................34
Section 8.6. Reinstatement.......................................................34
ARTICLE 9. AMENDMENTS AND SUPPLEMENTS................................................34
Section 9.1. Without Consent of Holders..........................................34
Section 9.2. With Consent of Holders.............................................35
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Section 9.3. Limitations.........................................................35
Section 9.4. Compliance with Trust Indenture Act.................................36
Section 9.5. Revocation and Effect of Consents...................................36
Section 9.6. Notation on or Exchange of Securities...............................36
Section 9.7. Trustee Protected...................................................37
ARTICLE 10. MISCELLANEOUS............................................................37
Section 10.1. Trust Indenture Act Controls.......................................37
Section 10.2. Notices............................................................37
Section 10.3. Communication by Holders with Other Holders........................38
Section 10.4. Certificate and Opinion as to Conditions Precedent.................38
Section 10.5. Statements Required in Certificate or Opinion......................38
Section 10.6. Rules by Trustee and Agents........................................38
Section 10.7. Legal Holidays.....................................................39
Section 10.8. No Recourse Against Others.........................................39
Section 10.9. Counterparts.......................................................39
Section 10.10. Governing Laws....................................................39
Section 10.11. No Adverse Interpretation of Other Agreements.....................40
Section 10.12. Successors........................................................40
Section 10.13. Severability......................................................40
Section 10.14. Table of Contents, Headings, Etc..................................40
iii
Reconciliation and tie between the Trust Indenture Act of 1939, as amended and
the Indenture, dated as of ____________ __, 1998.
Trust Indenture
Act Section Indenture Section
--------------- -----------------
(S)310(a)(1)....................................................7.10
(a)(2)........................................................7.10
(a)(3)..............................................Not Applicable
(a)(4)..............................................Not Applicable
(a)(5)........................................................7.10
(b).........................................................7.10
(S)311(a).....................................................7.11
(b).........................................................7.11
(c)...............................................Not Applicable
(S)312(a)......................................................2.6
(b).........................................................10.3
(c).........................................................10.3
(S)313(a)......................................................7.6
(b)(1).........................................................7.6
(b)(2).........................................................7.6
(c)(1).........................................................7.6
(d)..........................................................7.6
(S)314(a).....................................................10.5
(b)...............................................Not Applicable
(c)(1)........................................................10.4
(c)(2)........................................................10.4
(c)(3)..............................................Not Applicable
(d)...............................................Not Applicable
(e).........................................................10.5
(f)...............................................Not Applicable
(S)315(a)......................................................7.1
(b)..........................................................7.5
(c)..........................................................7.1
(d)..........................................................7.1
(e).........................................................6.14
(S)316(a).....................................................2.10
(a)(1)(A)......................................................6.12
(a)(1)(B)......................................................6.13
(b)..........................................................6.8
(S)317(a)(1).....................................................6.3
(a)(2).........................................................6.4
(b)..........................................................2.5
(S)318(a).....................................................10.1
Note: This reconciliation and tie shall not, for any purposes, be deemed to be
part of this Indenture.
iv
Indenture, dated as of ______ ___, 1998 (the "Indenture"), by and
between Host Marriott, L.P., a Delaware limited partnership (the "Company"), and
Marine Midland Bank, as Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person existing at the time
such Person becomes a Subsidiary of the Company or assumed in connection with an
Asset Acquisition and not incurred in connection with or in contemplation or
anticipation of such event, provided that Indebtedness of such Person which is
redeemed, defeased (including the deposit of funds in a valid trust for the
exclusive benefit of holders and the trustee thereof, sufficient to repay such
Indebtedness in accordance with its terms), retired or otherwise repaid at the
time of or immediately upon consummation of the transactions by which such
Person becomes a Subsidiary or such Asset Acquisition shall not be Acquired
Indebtedness.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term ``control'' means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided that a beneficial owner of 10% or more of the total
Voting Stock of a Person shall for such purposes be deemed to constitute
control; provided, further, that (i) the right to designate a member of the
Board of a Person or a Parent of that Person will not, by itself, be deemed to
constitute control and (ii) Marriott International and its subsidiaries shall
not be deemed to be Affiliates of the Company or its Parent or Subsidiaries.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Asset Acquisition" means (i) an investment by the Company or any of its
Subsidiaries in any other Person pursuant to which such Person shall become a
Subsidiary or shall be merged or consolidated into or with the Company or any of
its Subsidiaries or (ii) an acquisition by the Company or any of its
Subsidiaries from any other Person that constitutes all or substantially all of
a division or line of business, or one or more real estate properties, of such
Person.
"Board" means (i) with respect to any corporation, the board of directors
of such corporation or any committee of the board of directors of such
corporation authorized, with respect to any particular matter, to exercise the
power of the board of directors of such corporation, (ii) with respect to any
partnership, any partner (including, without limitation, in the case of any
partner that is a corporation, the board of directors of such corporation or any
authorized committee thereof) with the authority to cause the partnership to act
with respect to the matter at issue, (iii) in the case of a trust, any trustee
or board of trustees with the authority to cause the trust to act with respect
to the matter at issue, (iv) in the case of a limited liability company (a
``LLC''), the managing member, management committee or other Person or
group with the authority to cause the LLC to act with respect to the matter at
issue, and (v) with respect to any other entity, the Person or group exercising
functions similar to a board of directors of a corporation.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary or equivalent authorized person of the General Partner
to have been duly adopted by the Board or pursuant to authorization by the Board
and to be in full force and effect on the date of the certificate (and delivered
to the Trustee, if appropriate).
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York are
authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, or other equivalents (however designated, whether
voting or non-voting), including partnership interests, whether general or
limited, in the equity of such Person, whether outstanding on the Closing Date
or issued thereafter, including, without limitation, all Common Stock, Preferred
Stock and Units.
"Capitalized Lease" means, as applied to any Person, any lease of any
property (whether real, personal or mixed) of which the discounted present value
of the rental obligations of such Person as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such Person.
"Capitalized Lease Obligations" means, with respect to any Person, the
discounted present value of the rental obligations under a Capitalized Lease as
reflected on the balance sheet of such Person in accordance with GAAP.
"Closing Date" means _______, 1998.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting), which have no preference on liquidation or with respect
to distributions over any other class of Capital Stock, including partnership
interests, whether general or limited, of such Person's equity, whether
outstanding on the Closing Date or issued thereafter, including, without
limitation, all series and classes of common stock.
"Company" means Host Marriott, L.P., a Delaware limited partnership, until
a successor shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter means such successor.
"Company Order" means a written order signed in the name of the Company by
the General Partner and two Officers, one of whom must be the General Partner's
principal executive officer, principal financial officer or principal accounting
officer, and delivered to the Trustee.
"Company Request" means a written request signed in the name of the Company
by the General Partner and its Chairman of the Board, a President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated" or "consolidated" means, with respect to any Person, the
consolidation of the accounts of the Subsidiaries of such Person with those of
such Person; provided that (i) ``consolidation''
2
will not include consolidation of the accounts of any other Person other than a
Subsidiary of such Person with such Person and (ii) "consolidation" will
include consolidation of the accounts of any Subsidiary, whether or not such
consolidation would be required or permitted under GAAP (it being understood
that the accounts of such Person's Subsidiaries shall be consolidated only to
the extent of such Person's proportionate interest therein). The terms
"consolidated" and "consolidating" have correlative meanings to the
foregoing.
"Corporate Trust Office" means the office of the Trustee at which any
particular time its corporate trust business shall be principally administered.
"Default" means any event that is or after notice or passage of time or
both would be an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"FF&E" means furniture, fixtures and equipment, and other tangible personal
property other than real property.
"GAAP" means generally accepted accounting principles in the United States
of America as in effect as of the Closing Date, including, without limitation,
those set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States of America.
"General Partner" means the general partner of the Company.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness of
such other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part); provided that the term "Guarantee" shall not include endorsements
for collection or deposit in the ordinary course of business. The term
"Guarantee" used as a verb has a corresponding meaning.
"Holder" or "Securityholder" means a Person in whose name a Security is
registered.
"Host REIT" means Host Marriott Corporation, a Maryland corporation and the
sole general partner of the Company, and its successors and assigns.
"Hotel" means a hotel owned by a Public Partnership prior to the
Partnership Merger of such Partnership.
"Incur" means, with respect to any Indebtedness, to incur, create, issue,
assume, Guarantee or otherwise become liable for or with respect to (including
as a result of an acquisition), or become
3
responsible for, the payment of, contingently or otherwise, such Indebtedness
(including Acquired Indebtedness); provided that neither the accrual of interest
nor the accretion of original issue discount shall be considered an Incurrence
of Indebtedness.
"Indebtedness" of any Person means, without duplication, (i) all
liabilities and obligations, contingent or otherwise, of such Person, (a) in
respect of borrowed money (whether or not the recourse of the lender is to the
whole of the assets of such Person or only to a portion thereof), (b) evidenced
by bonds, notes, debentures or similar instruments, (c) representing the balance
deferred and unpaid of the purchase price of any property or services, except
those incurred in the ordinary course of its business that would constitute
ordinarily a trade payable to trade creditors, (d) evidenced by bankers'
acceptances, (e) for the payment of money relating to a Capitalized Lease
Obligation, or (f) evidenced by a letter of credit or a reimbursement obligation
of such Person with respect to any letter of credit; (ii) all net obligations of
such Person under Interest Swap and Hedging Obligations; and (iii) all
liabilities and obligations of others of the kind described in the preceding
clause (i) or (ii) that such Person has guaranteed or that is otherwise its
legal liability or which are secured by any assets or property of such Person.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"Indenture Obligations" means all obligations arising under this Indenture,
from time to time, with respect to the payment of principal of or interest, if
any, on the Securities of any Series.
"Interest Payment Date" means, with respect to Securities of any Series,
the stated due date of an installment of interest on the Securities of that
Series.
"Interest Swap and Hedging Obligation" means any obligation of any Person
pursuant to any interest rate swaps, caps, collars and similar arrangements
providing protection against fluctuations in interest rates. For purposes of
this Indenture, the amount of such obligations shall be the amount determined in
respect thereof as of the end of the then most recently ended fiscal quarter of
such Person, based on the assumption that such obligation had terminated at the
end of such fiscal quarter, and in making such determination, if any agreement
relating to such obligation provides for the netting of amounts payable by and
to such Person thereunder or if any such agreement provides for the simultaneous
payment of amounts by and to such Person, then in each such case, the amount of
such obligations shall be the net amount so determined, plus any premium due
upon default by such Person.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien,
privilege, hypothecation, other encumbrance or charge of any kind (including,
without limitation, any conditional sale or other title retention agreement or
lease in the nature thereof or any agreement to give any security interest) upon
or with respect to any property of any kind now owned or hereinafter acquired.
"Marriott International" means Marriott International, Inc., a Delaware
corporation, and its successors and assigns.
"Maturity" when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption, notice of option to elect repayment or otherwise.
4
"Offering" means the offering of the Securities for sale by the Company.
"Officer" means the President, any Vice-President, the Treasurer, the
Secretary, any Assistant Treasurer or any Assistant Secretary of the General
Partner.
"Officers' Certificate" means a certificate signed on behalf of the Company
by the General Partner and an Officer of the General Partner who must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the General Partner.
"Opinion of Counsel" means a written opinion of legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Parent" of any Person means a Person which at the date of determination
owns, directly or indirectly, a majority of the Voting Stock of such Person or
of a Parent of such Person.
"Partnership Merger" means the merger of one or more Subsidiaries of the
Company into one or more of the Public Partnerships in connection with the REIT
Conversion.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, REIT,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participation or other equivalents (however designated, whether
voting or non-voting), which have a preference on liquidation or with respect to
distributions over any other class of Capital Stock, including preferred
partnership interests, whether general or limited and whether outstanding on the
Closing Date or issued thereafter, including, without limitation, all series and
classes of such Preferred Stock.
"Public Partnerships" mean, collectively, the following Subsidiaries of the
Company: Atlanta Marriott ▇▇▇▇▇▇▇ ▇▇ Limited Partnership, a Delaware limited
partnership; Desert Springs Marriott Limited Partnership, a Delaware limited
partnership; Hanover Marriott Limited Partnership, a Delaware limited
partnership; Marriott Diversified American Hotels, L.P., a Delaware limited
partnership; Marriott Hotel Properties Limited Partnership, a Delaware limited
partnership; Marriott Hotel Properties II Limited Partnership, a Delaware
limited partnership; Mutual Benefit Chicago Marriott Suite Hotel Partners, L.P.,
a Rhode Island limited partnership; and Potomac Hotel Limited Partnership, a
Delaware limited partnership; or, as the context may require, any such entity
together with its Subsidiaries, or any of such Subsidiaries.
"real estate assets" means real property and all FF&E associated or used in
connection therewith.
"Record Date" means, with respect to Securities of any Series, the Record
Date specified in the Securities of that Series, whether or not such Record Date
is a Business Day.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to Article 3 of this
Indenture.
"Registration Statement" means the Company's and Host REIT's registration
statement on Form S-4 (No. 333-55807), as amended, relating to the registration
of, among other securities, the Securities under the Securities Act, together
with the exhibits thereto and all subsequent amendments.
5
"REIT" means a real estate investment trust as defined in Section 856 of
the Code.
"REIT Conversion" means the various transactions carried out in connection
with the conversion of Host Marriott Corporation, a Delaware corporation, to a
REIT, as generally described in the Registration Statement.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office with direct responsibility for the administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other
officer to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the notes of the Company of any Series authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Series" or "Series of Securities" means each series of notes of the
Company created pursuant to Section 2.1 and 2.2 hereof.
"Significant Subsidiary" means any Subsidiary which is a ``significant
subsidiary'' of the Company within the meaning of Rule 1-02(w) of Regulation S-X
promulgated by the SEC as in effect as of the Closing Date.
"Stated Maturity" means (i) with respect to any debt security, the date
specified in such debt security as the fixed date on which the final installment
of principal of such debt security is due and payable and (ii) with respect to
any scheduled installment of principal of or interest on any debt security, the
date specified in such debt security as the fixed date on which such installment
is due and payable.
"Subsidiary" means (i) a corporation, partnership, limited liability
company, trust, REIT or other entity a majority of the voting power of the
voting equity securities of which are owned, directly or indirectly, by the
Company or by one or more Subsidiaries of the Company, (ii) a partnership,
limited liability company, trust, REIT or other entity not treated as a
corporation for federal income tax purposes, a majority of the equity interests
of which are owned, directly or indirectly, by the Company or a Subsidiary of
the Company, or (iii) one or more corporations which, either individually or in
the aggregate, would be Significant Subsidiaries (as defined above, except that
the investment, asset and equity thresholds for purposes of this definition
shall be 5%), the majority of the value of the equity interests of which are
owned, directly or indirectly, by the Company or by one or more Subsidiaries.
"Tax" or "Taxes" means all Federal, state, local, and foreign taxes, and
other assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties applicable
thereto, imposed by any domestic or foreign governmental authority responsible
for the administration of any such taxes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)77aaa-
77bbbb), as amended from time to time, and as in effect on the date of this
Indenture; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "TIA" means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
6
"Total Assets" means the sum of (i) Undepreciated Real Estate Assets and
(ii) all other assets (excluding intangibles) of the Company and its
Subsidiaries determined on a consolidated basis (it being understood that the
accounts of Subsidiaries shall be consolidated with those of the Company only to
the extent of the Company's proportionate interest therein).
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument 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, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any Series shall mean the Trustee with respect to Securities of that Series.
"Undepreciated Real Estate Assets" means, as of any date, the cost (being
the original cost to the Company or any of its Subsidiaries plus capital
improvements) of real estate assets of the Company and its Subsidiaries on such
date, before depreciation and amortization of such real estate assets,
determined on a consolidated basis (it being understood that the accounts of
Subsidiaries shall be consolidated with those of the Company only to the extent
of the Company's proportionate interest therein).
"Units" means the limited partnership units of the Company.
"U.S. 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, and which in the case of (i)
and (ii) are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held
by such custodian for the account of the holder of a depository 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 depository
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation evidenced by such depository receipt.
"Voting Stock" means, with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Wholly Owned" means, with respect to any subsidiary of any Person, the
ownership of all of the outstanding Capital Stock of such subsidiary (other than
any director's qualifying shares or
7
investments by individuals mandated by applicable law) by such Person and/or one
or more Wholly Owned Subsidiaries of such Person.
Section 1.2. Other Definitions.
-----------------
DEFINED IN
TERM SECTION
---- ----------
"Acceleration Notice" 6.2
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Event of Default" 6.1
"Legal Holiday" 10.7
"Net Cash Proceeds" 3.2
"Paying Agent" 2.4
"Redemption Price" 3.1
"Registrar" 2.4
"Service Agent" 2.4
Section 1.3. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA term used in this Indenture has the following meaning:
"obligor" on the Securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction.
---------------------
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(c) references to "GAAP" shall mean GAAP in effect as of
the time when and for the period as to which such accounting principles are
to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the
plural include the singular; and
8
(f) provisions apply to successive events and transactions.
ARTICLE 2.
THE SECURITIES
Section 2.1. Issuable in Series; Form and Dating.
-----------------------------------
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is limited to $___________. The Securities
may be issued in one or more Series, not to exceed eight Series. All Securities
within a Series and among Series shall be identical except as may be set forth
in a Board Resolution, a supplemental indenture or an Officers' Certificate
detailing the adoption of the terms thereof pursuant to the authority granted
under a Board Resolution.
The Securities, and the Trustee's certificate of authentication in
respect thereof, shall be substantially in the form of Exhibit A hereto, which
Exhibit is part of this Indenture. The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage. The Company
shall approve the form of the Securities and any notation, legend or endorsement
on them. Any such notations, legends or endorsements not contained in the form
of Security attached as Exhibit A hereto shall be delivered in writing to the
Trustee. Each Security shall be dated the date of its authentication.
The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Section 2.2. Establishment of Terms of Series of Securities.
----------------------------------------------
At or prior to the issuance of any Securities within a Series, the
following shall be established by a Board Resolution, a supplemental indenture
or an Officers' Certificate pursuant to authority granted under a Board
Resolution:
2.2.1. the title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other Series);
and
2.2.2. the limit upon the aggregate principal amount of the
Securities of the Series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
Series pursuant to Section 2.7, 2.8, 2.11, 3.8 or 9.6).
Section 2.3. Execution and Authentication.
----------------------------
Two Officers shall sign, or one Officer shall sign and one Officer
shall attest to, the Securities for the Company by manual or facsimile
signature.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
9
A Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall at any time, and from time to time, authenticate
Securities for original issue in the principal amount provided in the related
Board Resolution, supplemental indenture hereto or Officers' Certificate, upon
receipt by the Trustee of a Company Order. Such Company Order may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing. Each Security shall be dated the date of its
authentication unless otherwise provided by a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate.
The aggregate principal amount of Securities of any Series outstanding
at any time may not exceed any limit upon the maximum principal amount for such
Series set forth in the Board Resolution, supplemental indenture hereto or
Officers' Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.9, and the aggregate principal amount of all Securities outstanding at
any time may not exceed the limit set forth in Section 2.1, except as provided
in Section 2.9.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Such an authenticating agent may
authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as an Agent to deal with the
Company or an Affiliate.
Section 2.4. Registrar and Paying Agent.
--------------------------
The Company shall maintain, with respect to each Series of Securities,
an office or agency in the Borough of Manhattan, The City of New York, where
Securities of a Series may be presented or surrendered for payment ("Paying
Agent"), where Securities of such Series may be surrendered for registration of
transfer or exchange ("Registrar"), and where notices and demands to or upon the
Company in respect of the Securities of such Series and this Indenture may be
served ("Service Agent"). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company will
give prompt written notice to the Trustee of the name and address, and any
change in the name or address, of each Registrar, Paying Agent or Service Agent.
If at any time the Company shall fail to maintain any such required Registrar,
Paying Agent or Service Agent or shall fail to furnish the Trustee with the name
and address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more co-
registrars, additional paying agents or additional service agents and may from
time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligations to maintain a Registrar, Paying Agent and Service Agent as specified
in this Section 2.4. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the name or address
of any such co-registrar, additional paying agent or additional service agent.
The term "Registrar" includes any co-registrar; the term "Paying Agent" includes
any additional paying agent; and the term "Service Agent" includes any
additional service agent.
10
The Company hereby appoints the Trustee the initial Registrar, Paying
Agent and Service Agent for each Series unless another Registrar, Paying Agent
or Service Agent, as the case may be, is appointed prior to the time Securities
of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent for any Series of
Securities other than the Trustee to agree in writing that the Paying Agent will
hold in trust, for the benefit of Securityholders of such Series of Securities,
or the Trustee, all money held by the Paying Agent for the payment of principal
of or interest on such Series of Securities, and will notify the Trustee of any
default by the Company in making any such payment. While any such default
continues, the Trustee may require a Paying Agent to pay all money held by it to
the Trustee. The Company at any time may require a Paying Agent to pay all
money held by it to the Trustee. Upon payment over to the Trustee, the Paying
Agent (if other than the Company or a Subsidiary) shall have no further
liability for the money. If the Company or its Subsidiary acts as Paying Agent,
it shall segregate and hold in a separate trust fund for the benefit of
Securityholders of any Series of Securities all money held by it as Paying
Agent.
Section 2.6. Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders of each Series of Securities and shall otherwise comply with TIA
(S)312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least ten days before each interest payment date and at such
other times as the Trustee may request in writing a list, in such form and as of
such date as the Trustee may reasonably require, of the names and addresses of
Securityholders of each Series of Securities.
Section 2.7. Transfer and Exchange.
---------------------
Where Securities of a Series are presented to the Registrar or a co-
registrar with a request to register a transfer or to exchange them for an equal
principal amount of Securities of the same Series, the Registrar shall register
the transfer or make the exchange if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall be
made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.11, 3.8 or 9.6).
Neither the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for the period
beginning at the opening of business fifteen Business Days immediately preceding
the mailing of a notice of redemption of Securities of that Series selected for
redemption and ending at the close of business on the day of such mailing, or
(b) to register the transfer of or exchange Securities of any Series selected,
called or being called for redemption as a whole or the portion being redeemed
of any such Securities selected, called or being called for redemption in part.
11
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona
bonafide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.9. Outstanding Securities.
----------------------
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be
outstanding until the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds on the Maturity of Securities of a Series money
sufficient to pay such Securities payable on that date, then on and after that
date such Securities of the Series cease to be outstanding and interest on them
ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
12
Section 2.10. Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities of a Series have concurred in any request, demand, authorization,
direction, notice, consent or waiver, Securities of a Series owned by the
Company or an Affiliate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that a Responsible Officer of the Trustee knows are so
owned shall be so disregarded.
Section 2.11. Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a Company
Order. Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for
temporary Securities. Without unreasonable delay, the Company shall prepare and
the Trustee upon request shall authenticate definitive Securities of the same
Series and date of maturity in exchange for temporary Securities. Until so
exchanged, temporary securities shall have the same rights under this Indenture
as the definitive Securities.
Section 2.12. Cancellation.
------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall dispose of
such canceled Securities (subject to the record retention requirement of the
Exchange Act) in accordance with its customary practices, unless the Company
otherwise directs. The Company may not issue new Securities to replace
Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on a Series of
Securities, it shall pay the defaulted interest to the Persons who are
Securityholders of the Series on a subsequent special record date. The Company
shall fix the record date and payment date. At least 30 days before the record
date, the Company shall mail to the Trustee and to each Securityholder of the
Series a notice that states the record date, the payment date and the amount of
interest to be paid. The Company may pay defaulted interest in any other lawful
manner.
Section 2.14. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other elements of
identification printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
13
ARTICLE 3.
REDEMPTION
Section 3.1. Optional Redemption.
-------------------
The Securities of any Series may be redeemed at any time at the option
of the Company, in whole or from time to time in part, at a redemption price
equal to the sum of the principal amount of the Securities being redeemed plus
accrued interest thereon to the Redemption Date (the "Redemption Price").
Section 3.2. Mandatory Redemption.
--------------------
In the event that any Public Partnership (a) sells or otherwise
disposes of any Hotel and realizes net cash proceeds in excess of (i) the amount
required to repay mortgage Indebtedness (outstanding immediately prior to the
Partnership Mergers) secured by such Hotel or otherwise required to be applied
to the reduction of Indebtedness of such Public Partnership and (ii) the costs
incurred by the Public Partnership in connection with such sale or other
disposition or (b) refinances (whether at maturity or otherwise) any
Indebtedness secured by any Hotel and realizes net cash proceeds in excess of
(i) the amount of Indebtedness secured by such Hotel at the time of the
Partnership Mergers, calculated prior to any repayment or other reduction in the
amount of such Indebtedness in the Partnership Mergers, and (ii) the costs
incurred by the Company or such Public Partnership in connection with such
refinancing (in either case, the "Net Cash Proceeds"), the Company shall be
required within 90 days of the receipt of the total Net Cash Proceeds to redeem
at the Redemption Price an aggregate amount of principal of the particular
Series of the Securities which were issued to the Persons who were partners of
such Public Partnership prior to the REIT Conversion equal to 80% of such Net
Cash Proceeds.
Section 3.3. Notice to Trustee.
-----------------
If the Company elects to redeem Securities pursuant to Section 3.1 or
is required to redeem Securities pursuant to Section 3.2, it shall notify the
Trustee of the Redemption Date and the principal amount of the Series of
Securities to be redeemed. The Company shall give the notice at least 45 days
before the Redemption Date (or such shorter notice as may be acceptable to the
Trustee). Any such notice may be canceled at any time prior to notice of such
redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 3.4. Selection of Securities to be Redeemed.
--------------------------------------
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select the Securities of the Series to be redeemed in any manner
that the Trustee deems fair and appropriate. The Trustee shall make the
selection from Securities of the Series outstanding not previously called for
redemption.
Section 3.5. Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed
and shall state:
14
(a) the Redemption Date;
(b) the Redemption Price;
(c) the name and address of the Paying Agent;
(d) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the
Redemption Price;
(e) the principal amount of Securities of a Series to be
redeemed;
(f) that the notice is being sent pursuant to this Section
3.5 and pursuant to either the optional or the mandatory
redemption provisions of Section 3.1 or 3.2, as the case
may be;
(g) that, unless the Company defaults in making the
redemption payments, interest on Securities of the
Series called for redemption ceases to accrue on and
after the Redemption Date;
(h) that, if any Security is being redeemed in part, the
portion of the principal amount of such Security to be
redeemed and that, on and after the Redemption Date,
upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed
portion thereof will be issued upon cancellation of the
original Security;
(i) that, if any Security contains a CUSIP number as
provided in Section 2.14, no representation is being
made as to the correctness of the CUSIP number either as
printed on the Security or as contained in the notice of
redemption and that reliance may be placed only on the
other identification numbers printed on the Security;
and
(j) any other information as may be required by the terms of
the particular Series or the Securities of a Series
being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.6. Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed or published as provided in
Section 3.5, Securities of a Series called for redemption become due and payable
on the Redemption Date and at the Redemption Price. A notice of redemption may
not be conditional. Upon surrender to the Paying Agent, such Securities shall
be paid at the Redemption Price plus accrued interest to the Redemption Date.
15
Section 3.7. Deposit of Redemption Price.
---------------------------
On or before the Redemption Date, the Company shall deposit with the
Paying Agent money sufficient to pay the Redemption Price of and accrued
interest, if any, on all Securities to be redeemed on that date. The Paying
Agent shall promptly return to the Company any money so deposited which is not
used for that purpose.
Section 3.8. Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder a new Security of
the same Series and the same maturity equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4.
COVENANTS
The following covenants shall be applicable with respect to Securities
of any Series. For the purpose of Securities of any Series issued hereunder,
when used in this Article 4, the term "Securities" shall mean Securities of that
Series.
Section 4.1. Payment of Principal and Interest.
---------------------------------
The Company covenants and agrees for the benefit of the Holders of
each Series of Securities that it will duly and punctually pay the principal of
and interest on the Securities of that Series in accordance with the terms of
such Securities and this Indenture.
Section 4.2. Reports.
--------
The Company shall at all times comply with TIA (S) 3.14(a).
Section 4.3. Compliance Certificate.
-----------------------
The Company shall deliver to the Trustee, within 120 days after the
end of its fiscal year, an Officers' Certificate complying with TIA (S)
314(a)(4).
Section 4.4. Corporate Existence.
--------------------
Subject to Article 5, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence in
accordance with its organizational documents (as the same may be amended from
time to time) and the rights (charter and statutory) and franchises of the
Company; provided, however, that the Company shall not be required to preserve
any such right, franchise or existence if the Board shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries taken as a whole.
Section 4.5. Limitation on Incurrences of Indebtedness.
-----------------------------------------
(a) The Company will not, and will not permit any of its
Subsidiaries to, Incur any Indebtedness (including Acquired Indebtedness)
other than intercompany Indebtedness (representing Indebtedness to which
the only parties are the
16
Company, Host REIT and/or any of their subsidiaries, but only so long as
such Indebtedness is held solely by any of such parties) that is
subordinate in right of payment to the Securities, if immediately after
giving effect to the Incurrence of such Indebtedness, the aggregate
principal amount of all outstanding Indebtedness of the Company and its
Subsidiaries on a consolidated basis, determined in accordance with GAAP,
is greater than 75% of the Company's Total Assets.
(b) For purposes of determining any particular amount of
Indebtedness under this Section 4.5, Guarantees, Liens or obligations with
respect to letters of credit supporting Indebtedness otherwise included in
the determination of such particular amount shall not be included as
additional Indebtedness.
(c) Indebtedness of any Person that is not a Subsidiary of
the Company, which Indebtedness is outstanding at the time such Person
becomes a Subsidiary of the Company or is merged with or into or
consolidated with the Company or a Subsidiary of the Company, shall be
deemed to have been Incurred at the time such Person becomes a Subsidiary
of the Company or is merged with or into or consolidated with the Company,
or a Subsidiary of the Company, and Indebtedness which is assumed at the
time of the acquisition of any asset shall be deemed to have been Incurred
at the time of such acquisition.
Section 4.6. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall give prompt
written notice to the Trustee and the Paying Agent of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee and the Paying Agent, if different, with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 10.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Company
shall give prompt written notice to the Trustee and the Paying Agent, if
different, of any such designation or rescission and of any change in the
location of any such other office or agency. The Company hereby initially
designates the corporate trust office of the Paying Agent as such office.
17
ARTICLE 5.
SUCCESSORS
Section 5.1. When Company May Merge, Etc.
---------------------------
The Company will not merge or consolidate with or into, or sell,
lease, convey, transfer or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially as an entirety in one
transaction or a series of related transactions) to any Person or permit any
Person to merge or consolidate with or into the Company, unless:
(a) either the Company shall be the continuing Person or the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired such property and assets of
the Company shall be an entity organized and validly existing under the
laws of the United States of America or any state or jurisdiction thereof
and shall expressly assume, by a supplemental indenture, executed and
delivered to the Trustee, all of the obligations of the Company, on the
Securities and under this Indenture;
(b) immediately after giving effect, on a pro forma basis,
to such transaction, no Default or Event of Default shall have occurred and
be continuing; and
(c) the Company will have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, in each case stating that
such consolidation, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent provided for
herein relating to such transaction have been complied with.
Section 5.2. Successor Person Substituted.
----------------------------
Upon any consolidation or merger or any transfer of all or
substantially all of the assets of the Company, in accordance with Section 5.1,
the successor Person formed by such consolidation or into which the Company is
merged or to which such transfer is made, shall succeed to, be substituted for,
and may exercise every right and power of the Company under this Indenture with
the same effect as if such successor Person had been named therein as the
Company and the Company shall be released from the obligations under the
Securities and this Indenture.
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of
any Series, means any one of the following events:
(a) the failure by the Company to pay any installment of
interest on the Securities of that Series as and when the same becomes due
and payable and the continuance of any such failure for 30 days;
18
(b) the failure by the Company to pay all or any part of the
principal of the Securities of that Series when and as the same becomes due
and payable at maturity, redemption, by acceleration or otherwise;
(c) the failure by the Company to make any mandatory
redemption pursuant to the terms of and within the period specified in
Section 3.2;
(d) the failure by the Company to observe or perform any
other covenant or agreement contained in the Securities of that series or
this Indenture with respect to that Series of Securities and the
continuance of such failure for a period of 60 days after written notice is
given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Securities
of that Series outstanding;
(e) the Company or any of its Significant Subsidiaries
pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors;
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any of its
Significant Subsidiaries in an involuntary case;
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property; or
(iii) orders the liquidation of the Company or any of
its Significant Subsidiaries and the order or decree remains unstayed
and in effect for 60 days.
The term "Bankruptcy Law" means title 11 of the U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
Section 6.2. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to the Securities of any Series at
the time outstanding occurs and is continuing (other than an Event of Default
specified in Section 6.1(e) or (f), above, relating
19
to the Company), then either the Trustee or the Holders of 25% in aggregate
principal amount of the Securities of that Series then outstanding, by notice in
writing to the Company (and to the Trustee if given by Holders) (an
``Acceleration Notice''), may declare all principal and accrued interest thereon
to be due and payable immediately.
If an Event of Default specified in Section 6.1(e) or (f) shall occur
as to the Company, the principal amount (or specified amount) of and accrued and
unpaid interest, if any, on all outstanding Securities of that Series shall ipso
----
facto become and be immediately due and payable without any declaration or other
-----
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
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 provided in this
Article 6, the Holders of a majority (or such greater amount if the Event of
Default resulting in such acceleration related to a Default in a provision of
this Indenture that may not be amended without the consent of a greater amount)
in principal amount of the outstanding Securities of that Series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue interest, if any, on all Securities of
that Series;
(ii) the principal of any Securities of that Series which
have become due (otherwise than by such declaration of acceleration)
and interest thereon at the rate or rates prescribed therefor in such
Securities; and
(iii) 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 any other amounts due the
Trustee under Section 7.7; and
(b) all Events of Default with respect to Securities of that
Series, other than the non-payment of the principal of and interest on
Securities of that Series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall effect any subsequent Default or impair any
right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
-------
The Company covenants that if:
(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days; or
20
(b) default is made in the payment of principal of any Security
at the Maturity thereof;
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest at the rate or rates prescribed therefor
in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 7.7.
If the Company 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, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
Series by such appropriate judicial proceedings as the Trustee shall deem most
effective 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 6.4. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal
and interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amounts due the Trustee under Section 7.7)
and of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 7.7.
21
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 6.6. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article 6 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 interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of
which or for the benefit of which such money has been
collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
Section 6.7. Limitation on Suits.
-------------------
No Holder of any Security of any Series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that Series;
(b) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
22
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture 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 6.8. Unconditional Right of Holders to Receive
-----------------------------------------
Principal and Interest.
----------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Security on
the Stated Maturity or Stated Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
Section 6.9. 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, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
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 6.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article 6 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, as the case
may be.
23
Section 6.12. Control by Holders.
------------------
The Holders of a majority in principal amount of the outstanding
Securities of any Series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such Series, provided that:
(a) such direction shall not be in conflict with any rule of law
or with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(c) subject to the provisions of Section 6.1, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
good faith shall, by a Responsible Officer of the Trustee, determine that
the proceeding so directed would involve the Trustee in personal liability
or be unduly prejudicial to Holders of Securities of such Series not
joining therein.
Section 6.13. Waiver of Past Defaults.
-----------------------
The Holders of a majority in aggregate principal amount of the
outstanding Securities of a Series may waive on behalf of all the Holders any
Default with respect to such Series and its consequences, except a Default with
respect to any provision requiring supermajority approval to amend, which
Default may only be waived by such a supermajority with respect to such Series,
and except a Default in the payment of principal of or interest on any Security
of that Series not yet cured or a Default with respect to any covenant or
provision which cannot be modified or amended without the consent of the Holder
of each outstanding Security of that Series affected, provided, however, that
Holders of a majority or a supermajority (as the case may be) in aggregate
principal amount of the Securities of any Series may rescind an acceleration and
its consequences including any payment default that resulted from such
acceleration only pursuant to Section 6.2 hereof. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 6.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an 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
Company, 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 Securities of any Series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of or interest on
any Security on or after the Stated Maturity or Stated Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date).
24
ARTICLE 7.
TRUSTEE
Section 7.1. Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture
and use the same degree of care and skill in their exercise as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others;
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the case
of any such Officers' Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 7.1;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to
Securities of any Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
25
(e) Subject to the provisions of this Article and the rest of
this Indenture relating to the duties of the Trustee, the Trustee will be
under no obligation to exercise any of its rights or powers under this
Indenture at the request, order or direction of any of the Holders, unless
such Holders have offered to the Trustee reasonable security or indemnity
against the cost, expenses and liabilities which might be incurred by it in
compliance with such request, order or direction.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to risk its own funds or otherwise incur any financial liability in the
performance of any of its duties, 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 is not reasonably
assured to it.
(h) The Paying Agent, the Registrar and any authenticating
agent shall be entitled to the protections, immunities and standard of care
as are set forth in paragraphs (a), (b) and (c) of this Section and Section
7.2 with respect to the Trustee.
(i) 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 Officer's Certificate.
Section 7.2. Rights of Trustee.
-----------------
(a) The Trustee may rely on and shall be protected in acting
or refraining from acting upon any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need
not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within
its rights or powers.
(e) 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.
26
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters
as it may see fit.
(g) The Trustee shall not be required to give any bond or
surety in respect of the performance of its powers and duties hereunder.
(h) The permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as duties.
(i) The Trustee shall not be charged with knowledge of any
Default or Event of Default or of the identity of any Subsidiary unless
either (i) a Responsible Officer shall have actual knowledge thereof or
(ii) the Trustee shall have received written notice thereof from the
Company or any Holder.
Section 7.3. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
Section 7.4. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement of the Company in this Indenture or
the Securities other than its certificate of authentication.
Section 7.5. Notice of Defaults.
------------------
If a Default or Event of Default occurs and is continuing with respect
to the Securities of any Series and if it is known to a Responsible Officer of
the Trustee, the Trustee shall mail to each Securityholder of the Securities of
that Series notice of a Default or Event of Default within 90 days after it
occurs or, if later than the end of such 90-day period, after a Responsible
Officer of the Trustee has knowledge of such Default or Event of Default.
Except in the case of a Default or Event of Default in payment of principal of
or interest on any Security of any Series, the Trustee may withhold the notice
if and so long as its corporate trust committee or a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Securityholders of that Series.
Section 7.6. Reports by Trustee to Holders.
-----------------------------
Within 60 days after May 15 in each year, the Trustee shall transmit
by mail to all Securityholders, as their names and addresses appear on the
register kept by the Registrar, a brief report dated as of such May 15, in
accordance with, and to the extent required under, TIA (S)313.
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the SEC and each stock exchange, if any, on which
the Securities of that Series are listed in
27
accordance with TIA (S) 313(d). The Company shall promptly notify the Trustee
when Securities of any Series are listed on any stock exchange.
Section 7.7. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (including the cost of
defending itself) against any loss, liability or expense incurred by it
(including in the enforcement of this Section 7.7), except as set forth in the
next paragraph, arising out of or in connection with the acceptance or
administration of this trust or in the performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. This indemnification shall
apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that which is held in trust to
pay principal and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(e) or (f) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.7 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
Section 7.8. Replacement of Trustee.
----------------------
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.8.
The Trustee may resign with respect to the Securities of one or more
Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of any Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove
the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an
order
28
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities may appoint
a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or
more Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at
least 10% in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities of any one or more
Series fails to comply with Section 7.10, any Securityholder of the applicable
Series may petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company's obligations under Section
7.7 hereof shall continue for the benefit of the retiring trustee with respect
to expenses and liabilities incurred by it prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
--------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S)310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S)310(b).
Section 7.11. Preferential Collection of Claims Against
-----------------------------------------
Company.
-------
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S)311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S)311(a) to the extent indicated.
29
ARTICLE 8.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1) with respect to any Series
of Securities, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging such satisfaction and discharge of this
Indenture with respect to such Series, when:
(a) either:
(i) all Securities of such Series theretofore
authenticated and delivered (other than Securities of such Series that
have been destroyed, lost or stolen and that have been replaced or
paid) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered
to the Trustee for cancellation:
(1) have become due and payable; or
(2) will become due and payable at their Stated
Maturity within one year; or
(3) 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 Company; or
(4) are deemed paid and discharged pursuant to
Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited (in U.S. legal tender or U.S. Government Obligations or a
combination thereof) with the Trustee as trust funds in trust an amount
sufficient for the purpose of paying and discharging the entire Indebtedness on
such Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company 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 have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Sections 2.4, 2.7, 2.8, 2.11, 7.1, 8.1 8.2 and 8.5 shall survive.
Section 8.2. Application of Trust Funds; Indemnification.
-------------------------------------------
(a) Subject to the provisions of Section 8.5, all money and
U.S. Government Obligations deposited with the Trustee pursuant to
Sections 8.1, 8.3 or 8.4 and all money received by the Trustee in
respect of U.S. Government Obligations deposited with the Trustee
pursuant to Sections 8.1, 8.3 or 8.4, shall be held in trust and applied
by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal and
interest for whose payment such money has been deposited with or
received by the Trustee or to make analogous payments as contemplated by
Sections 8.3 or 8.4.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Sections 8.1, 8.3 or 8.4 or
the interest and principal received in respect of such obligations other
than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from
time to time upon Company Request any U.S. Government Obligations or
money held by it as provided in Sections 8.1, 8.3 or 8.4 which, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S.
Government Obligations or money were deposited or received. This
provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations held under this Indenture.
Section 8.3. Legal Defeasance of Securities of any Series.
--------------------------------------------
The Company shall be deemed to have paid and discharged the entire
Indebtedness on all the outstanding Securities of such Series on the 91st day
after the date of the deposit referred to below, and the provisions of this
Indenture, as it relates to such outstanding Securities of such Series, shall no
longer be in effect (and the Trustee, at the expense of the Company, shall, at
Company Request, execute proper instruments acknowledging the same), except as
to:
(a) the rights of Holders of Securities of such Series to
receive, from the trust funds described below, payment of the principal
of and each installment of principal of and interest on the outstanding
Securities of such Series on the Stated Maturity of such principal or
installment of principal or interest on the day on which such payments
are due and payable in accordance with the terms of this Indenture and
the Securities of such Series;
(b) the provisions of Sections 2.5, 2.7, 2.8, 2.11, 4.6 and
this Article
8; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(i) the Company must irrevocably deposit with the
Trustee, in trust, for the benefit of the Holders of the Securities of
such Series, (A) U.S. legal tender or U.S. Government Obligations, or
any combination thereof, in such amounts as will be sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay the principal of and interest on such Securities on
the stated date for payment thereof or on the Redemption Date of such
principal or installment of principal of or interest on Securities of
such Series;
(ii) the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to Trustee
confirming that (A) the Company has received from, or there has been
published by the Internal Revenue Service, a ruling or (B) 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 of counsel shall confirm that, the Holders of the
Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such Legal Defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Legal
Defeasance had not occurred;
(iii) no Default or Event of Default shall have occurred
with respect to such Series and be continuing on the date of such
deposit or insofar as Events of Default from bankruptcy or insolvency
events are concerned, at any time in the period ending on the 91st day
after the date of deposit;
(iv) such 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 Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
(v) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of preferring the Holders of such Securities
over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company or
others; and
32
(vi) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the conditions precedent provided for
have been complied with.
Section 8.4. Covenant Defeasance.
-------------------
On and after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any term, provision
or condition set forth under Sections 4.2, 4.3, 4.4 and 4.5 and Article 5 (and
the failure to comply with any such covenants shall not constitute a Default or
Event of Default under Section 6.1) with respect to the Securities of such
Series, provided that the following conditions shall have been satisfied:
(a) the Company must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders of the Securities of such Series,
(A) U.S. legal tender or U.S. Government Obligations, or any combination
thereof, in such amounts as will be sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay the
principal of and interest on such Securities on the stated date for payment
thereof or on the Redemption Date of such principal or installment of
principal of or interest on Securities of such Series;
(b) the Company shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to such
Trustee confirming that the Holders of the Securities of such Series will
not recognize income, gain or loss for Federal income tax purposes as a
result of the defeasance contemplated by this Section 8.4 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;
(c) no Default or Event of Default shall have occurred with
respect to such Series and be continuing on the date of such deposit or
insofar as Events of Default from bankruptcy or insolvency events are
concerned, at any time in the period ending on the 91st day after the date
of deposit;
(d) such 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 Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound;
(e) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company
with the intent of preferring the Holders of the Securities of such Series
over any other creditors of the Company or with the intent of defeating,
hindering, delaying or defrauding any other creditors of the Company or
others; and
(f) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the conditions precedent provided for
have been complied with.
33
Section 8.5. Repayment to Company.
--------------------
The Trustee and the Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another Person.
Section 8.6. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Article 8 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, the
Company's obligations under this Indenture and the Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article 8
until such time as the Trustee or Paying Agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article 8; provided
that if the Company has made any payment of interest on or principal of any
Securities because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or
Paying Agent.
ARTICLE 9.
AMENDMENTS AND SUPPLEMENTS
Section 9.1. Without Consent of Holders.
--------------------------
The Company and the Trustee may amend or supplement this Indenture or
the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article 5;
(c) to provide for uncertificated Securities in addition to
or in place of certificated Securities;
(d) to make any change that does not adversely affect the
rights of any Securityholder;
(e) to provide for the issuance of and establish the form
and terms and conditions of Securities of any Series as permitted by this
Indenture;
(f) to add to the covenants of the Company or to add Events
of Default for the benefit of Securityholders or to surrender any right or
power conferred upon the Company in this Indenture;
(g) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the Securities
of one or more Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one
34
Trustee;
(h) to provide for guarantors or collateral for the
Securities of any Series; or
(i) to comply with requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
-----------------------
Except as provided elsewhere in this Article 9, the Company and the
Trustee may enter into a supplemental indenture with the written consent of the
Holders of not less than a majority in aggregate principal amount of the
outstanding Securities of each Series affected by such supplemental indenture
(including consents obtained in connection with a tender offer or exchange offer
for the Securities of such Series) for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of the
Securityholders of each such Series. Except as provided in Section 6.13, the
Holders of at least a majority in principal amount of the outstanding Securities
of each Series affected by such waiver by notice to the Trustee (including
consents obtained in connection with a tender offer or exchange offer for the
Securities of such Series) may waive compliance by the Company with any
provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this Section 9.2 becomes effective, the Company shall mail to the Holders of
Securities affected thereby a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to mail or publish such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
-----------
Without the consent of each Securityholder affected, an amendment or
waiver may not:
(a) change the Stated Maturity of the principal of, or any
installment of interest on, any Security;
(b) reduce the principal amount of or interest on any
Security;
(c) change the place of payment, or the coin or currency,
for the payment of principal of or interest on any Security;
(d) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity (or, in the case of a
redemption, on or after the Redemption Date) of any Security;
(e) reduce the percentages of outstanding Securities the
consent of whose Holders is necessary to modify or amend this Indenture;
(f) waive a default in the payment of principal of or
interest on the
35
Securities (except a recission of acceleration of the Securities of any
Series and a waiver of the payment default that resulted from such
acceleration pursuant to Section 6.2 hereof); or
(g) reduce the percentage or aggregate principal amount of
outstanding Securities of a Series the consent of whose Holders is
necessary for waiver of compliance with certain provisions of this
Indenture or for waiver of certain defaults in Section 6.8, 6.13 or this
9.3.
Section 9.4. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
---------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities of the applicable Series have consented (and not theretofore revoked
such consent) to the amendment or waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Company, notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those Persons who were Holders at such record date, and only those Persons ( or
their duly designated proxies), shall be entitled to revoke any consent
previously given (up to the time such consent becomes non-revocable in
accordance with such sentence), whether or not such Persons continue to be
Holders after such record date.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
-------------------------------------
The Trustee may place an appropriate notation about an amendment or
waiver on any Security of any Series thereafter authenticated. The Company in
exchange for Securities of that Series may issue and the Trustee shall
authenticate upon request new Securities of that Series that reflect the
amendment or waiver. Any failure to make any appropriate notation or to issue a
new Security of that Series shall not affect the validity of such amendment or
waiver.
36
Section 9.7. Trustee Protected.
-----------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article 9 or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 7.1) shall be fully protected in relying upon,
an Opinion of Counsel complying with Section 10.4(b) and stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee shall sign all supplemental indentures, except that the
Trustee need not sign any supplemental indenture that adversely affects its
rights.
ARTICLE 10.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
Section 10.2. Notices.
-------
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company:
Host Marriott, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention: General Counsel
if to the Trustee:
Marine Midland Bank
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder of any Series or
any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
37
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3. Communication by Holders with Other Holders.
-------------------------------------------
Securityholders of any Series may communicate pursuant to TIA
(S)312(b) with other Securityholders of that Series or any other Series with
respect to their rights under this Indenture or the Securities of that Series or
all Series. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA (S)312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
---------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA (S)314(a)(4)) shall comply with the provisions of TIA
(S)314(e) and shall include:
(a) a statement that the person making such certificate or
opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of one or more Series. Any Agent may make reasonable rules and
set reasonable requirements for its functions.
38
Section 10.7. Legal Holidays.
--------------
Unless otherwise provided by Board Resolution, Officers' Certificate
or supplemental indenture for a particular Series, a "Legal Holiday" is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue with respect to such payment
for the intervening period.
Section 10.8. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of or interest on the
Securities or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture, or in the Securities or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator,
partner, stockholder, officer, director, employee or controlling Person of the
Company, the General Partner or any successor Person thereof, except as an
obligor of the Securities pursuant to this Indenture. Each Holder, by accepting
the Securities, waives and releases all such liability.
Section 10.9. Counterparts.
------------
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. Governing Laws.
--------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B). THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION.
39
Section 10.11. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
----------
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.13. Severability.
------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc.
--------------------------------
The Table of Contents, Reconciliation between the TIA, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
40
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
HOST MARRIOTT, L.P.
By: Host Marriott Corporation,
as general partner of Host Marriott, L.P.
By:
-----------------------------------
Name:
Title:
MARINE MIDLAND BANK
By:
-----------------------------------
Name:
Its:
41
EXHIBIT A
6.56% SERIES ___ CALLABLE NOTE DUE 2005
CUSIP No. ___________
No. ___ [$_________]
Host Marriott, L.P., a Delaware limited partnership (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_____________________, or registered assigns, the principal sum of [$________],
on December 15, 2005. This Security is one of the 6.56% Series ___ Callable
Notes due 2005 referred to in such Indenture (hereinafter referred to
collectively as the "Securities.")
Interest Payment Dates: June 15 and December 15
December 15
Record Dates: June 1 and December 1
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated: ______ __, 1998
HOST MARRIOTT, L.P.,
a Delaware limited partnership
By: Host Marriott Corporation,
as general partner of Host Marriott, L.P.
By:
---------------------------------------
Name:
Title:
Attest:
-------------------------
Name:
Title:
2
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the Series designated therein
referred to in the within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:
---------------------------
Authorized Signatory
HOST MARRIOTT, L.P.
6.56% Series ___ Callable Note due 2005
1. Interest.
--------
Host Marriott, L.P., a Delaware limited partnership (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate of 6.56% per annum from _________ __, 1998 until
maturity.
The Company will pay interest semi-annually on June 15 and December 15
of each year (each, an "Interest Payment Date"), commencing June 15, 1999.
Interest on the Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the Securities, from
___________ __, 1998. Interest will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
2. Method of Payment.
-----------------
The Company shall pay interest on the Securities (except defaulted
interest) to the Persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders
must surrender Securities to a Paying Agent to collect principal payments.
Principal of and interest on the Securities will be payable in United States
dollars at the office or agency of the Company maintained for such purpose, in
the Borough of Manhattan, The City of New York or at the option of the Company,
payment of interest may be made by check mailed to the Holders of the Securities
at the addresses set forth upon the registry books of the Company.
3. Paying Agent and Registrar.
---------------------------
Initially, Marine Midland Bank will act as Paying Agent and Registrar.
The Company may change any Paying Agent, Registrar or co-Registrar without
notice to the Holders. The Company or any of its Subsidiaries may, subject to
certain exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
----------
The Company issued the Securities under an Indenture, dated as of
_______ __, 1998 (the "Indenture"), between the Company and the Trustee.
Capitalized terms herein are used as defined in the Indenture unless otherwise
defined herein. The Securities are limited in aggregate principal amount to
$_______. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of
1939, as in effect on the date of the Indenture. The Securities are subject to
all such terms, and Holders of Securities are referred to the Indenture and said
Act for a statement of them. The Securities are senior, general and unsecured
obligations of the Company. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by the provisions of the
Indenture and (b) authorizes and directs the Trustee on his behalf to take such
action as may be provided in the Indenture.
5. Redemption.
-----------
The Securities may be redeemed in whole or from time to time in part
at any time at the option of the Company, at a redemption price equal to the sum
of the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date (the "Redemption Price").
In the event that any Public Partnership (a) sells or otherwise
disposes of any Hotel or (b) refinances (whether at maturity or otherwise) any
Indebtedness secured by any Hotel and, in either case, realizes Net Cash
Proceeds therefrom, the Company shall be required within 90 days of the receipt
of the total of such Net Cash Proceeds to redeem at the Redemption Price an
aggregate amount of principal of the particular Series of the Securities which
were issued to the Persons who were partners of such Public Partnership prior to
the REIT Conversion equal to 80% of such Net Cash Proceeds.
Any such redemption will comply with Article 3 of the Indenture.
6. Notice of Redemption.
--------------------
Notice of redemption will be sent by first class mail, at least 30
days and not more than 60 days prior to the Redemption Date to the Holder of
each Security to be redeemed at such Holder's last address as then shown upon
the registry books of the Registrar.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent on such Redemption Date, the
Securities called for redemption will cease to bear interest and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price.
7. Transfer and Exchange.
----------------------
A Holder may register the transfer of, or exchange Securities in
accordance with, the Indenture. The Registrar may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
any taxes and fees required by law or permitted by the Indenture. The Registrar
need not register the transfer of or exchange any Securities (a) selected for
redemption except the unredeemed portion of any Security being redeemed in part
or (b) for a period beginning 15 Business Days before the mailing of a notice of
an offer to repurchase or redemption and ending at the close of business on the
day of such mailing.
8. Persons Deemed Owners.
---------------------
2
The registered Holder of a Security may be treated as the owner of it
for all purposes.
9. Unclaimed Money.
----------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at its request. After that, all liability of the Trustee and such
Paying Agent(s) with respect to such money shall cease, and Holders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person.
10. Discharge Prior to Redemption or Maturity.
------------------------------------------
As set forth in the Indenture, if the Company irrevocably deposits
with the Trustee, in trust, for the benefit of the Holders, U.S. legal tender,
U.S. Government Obligations or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of and interest on such Securities on the
stated date for payment thereof or on the Redemption Date of such principal or
installment of principal of or interest on such Securities, the Company will be
discharged from certain provisions of the Indenture and the Securities
(including the covenant described in paragraph 12 below, but excluding its
obligation to pay the principal of and interest on the Securities). Upon
satisfaction of certain additional conditions set forth in the Indenture, the
Company may elect to have its obligations discharged with respect to outstanding
Securities.
11. Amendment; Supplement; Waiver.
------------------------------
The Company and the Trustee may amend the Indenture or enter into a
supplemental indenture without the consent of the Holders for certain limited
purposes including, among other things, to cure any ambiguity, defect or
inconsistency, or to make any other change that does not adversely affect the
rights of any Holder of a Security. Subject to certain exceptions, the
Indenture or the Securities may be amended or supplemented with the written
consent of the Holders of at least a majority in aggregate principal amount of
the outstanding Securities of each Series affected by such amendment or
supplement, and any existing Default or Event of Default with respect to a
Series or compliance with any provision with respect to a Series may be waived
with the consent of the Holders of a majority in aggregate principal amount of
the outstanding Securities of such Series.
12. Limitation on Incurrence of Indebtedness.
----------------------------------------
The Indenture imposes a limitation on the ability of the Company and
any of its Subsidiaries to incur additional Indebtedness. The limitation is
subject to certain qualifications and exceptions.
13. Successor.
----------
3
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
14. Defaults and Remedies.
----------------------
If an Event of Default with respect to the Securities occurs and is
continuing (other than an Event of Default relating to bankruptcy, insolvency or
reorganization of the Company), then either the Trustee or the Holders of 25% in
aggregate principal amount of the Securities then outstanding may declare all
Securities to be due and payable immediately in the manner and with the effect
provided in the Indenture. Holders of Securities may not enforce the Indenture
or the Securities, except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of the
then outstanding Securities may direct the Trustee in its exercise of any trust
or power with respect to such Securities. The Trustee may withhold from Holders
of Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
15. Trustee and Agent Dealings with Company.
----------------------------------------
The Trustee and each Agent under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company, any of its Subsidiaries or any of their respective
Affiliates, and may otherwise deal with such Persons as if it were not the
Trustee or such Agent.
16. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of or interest on the
Securities or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in the Indenture, or in the Securities or because of the creation of any
Indebtedness represented thereby, shall be had against any incorporator,
partner, stockholder, officer, director, employee or controlling Person of the
Company or of any successor Person thereof, except as an obligor of the
Securities pursuant to the Indenture. Each Holder, by accepting the Securities,
waives and releases all such liability.
17. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
18. Abbreviations and Defined Terms.
--------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
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19. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
20. Governing Law.
-------------
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT
LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW
AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
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[FORM OF ASSIGNMENT]
I or we assign this Security to
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
-------------------------------
and irrevocably appoint ________________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Dated: _________________ Signed:
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee*
------------------------
* NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New
York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee program
acceptable to the Trustee.
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