1
Exhibit 4.13
================================================================================
CORPORATE PROPERTY INVESTORS
Issuer
and
CHEMICAL BANK
Trustee
-------------------
Indenture
Dated as of March 15, 1996
-------------------
$250,000,000
7 7/8% Notes Due 2016
================================================================================
DISCLAIMER OF LIABILITY OF SHAREHOLDERS AND OTHERS
Corporate Property Investors is the designation of the Trustees
under a Declaration of Trust, as amended and restated, on file with the
Secretary of State of the Commonwealth of Massachusetts, and neither the
shareholders nor the Trustees, officers, employees or agents of the Trust
Created thereby, nor any of their personal assets, shall be liable hereunder (or
under any Note), and all persons dealing with the Trust shall look solely to the
Trust estate for the payment of any claims hereunder (or under any Note) or for
the performance hereof (or of any Note). The foregoing limitation of liability
is in addition to, and not exclusive of, any limitation of liability applicable
to such Persons by operation of law. Each Holder by accepting a Note waives and
releases all such liability. Such waiver and release are part of the
consideration for the issue of the Notes.
2
TABLE OF CONTENTS
Page
PARTIES ........................................................... 1
RECITALS .......................................................... 1
Form of Face of Note ................................... 1
Form of Trustee's Certificate
of Authentication ................................... 4
Form of Reverse of Note ................................ 4
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions
Accounting Principles ........................................ 19
Accredited Investor .......................................... 19
Act .......................................................... 19
Affiliate .................................................... 19
Appraisal .................................................... 19
Appraiser .................................................... 19
Board of Trustees ............................................ 20
Board Resolution ............................................. 20
Business Day ................................................. 20
Cash Flow .................................................... 20
Consolidated Debt ............................................ 20
Consolidated Interest Expense ................................ 20
Consolidated Net Income ...................................... 20
Consolidated Net Worth ....................................... 21
Consolidated Secured Debt .................................... 21
Consolidated Subsidiary ...................................... 21
Corporate Trust Office ....................................... 21
Debt ......................................................... 21
Depositary ................................................... 22
Event of Default ............................................. 22
Excludable Non-Recourse and Subsidiary Debt .................. 22
Global Note .................................................. 22
Gross Assets ................................................. 22
Holder" or "Noteholder ....................................... 23
Indenture .................................................... 23
Interest" or "interest ....................................... 23
Interest Payment Date ........................................ 23
Issuer ....................................................... 23
Lien ......................................................... 23
i
3
Make-Whole Amount ............................................ 23
Maturity ..................................................... 24
Non-Recourse Debt ............................................ 24
Note ......................................................... 24
Note Register ................................................ 24
Notice of Issuance ........................................... 24
Officers' Certificate ........................................ 24
Opinion of Counsel ........................................... 24
Outstanding .................................................. 24
Paying Agent ................................................. 25
Person ....................................................... 25
Private Placement Legend ..................................... 25
Purchase Agreement ........................................... 25
Qualified Institutional Buyer ................................ 26
Real Property ................................................ 26
Real Property Value .......................................... 26
Record Date .................................................. 26
Redemption Date .............................................. 26
Redemption Price ............................................. 26
Registrar .................................................... 26
Regulations .................................................. 26
Reinvestment Rate ............................................ 26
Request" and "Order .......................................... 27
Responsible Officer .......................................... 27
Rule 144A .................................................... 27
Secured Debt ................................................. 27
Securities Act ............................................... 27
Stated Maturity .............................................. 27
Statistical Release .......................................... 27
Subordinated Securities ...................................... 27
Subsidiary ................................................... 27
Trustee ...................................................... ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ................................................ 28
U.S. Government Obligations .................................. 28
U.S. Person .................................................. 28
SECTION 1.02. Form of Documents Delivered to Trustee;
Compliance Certificates and Opinions ........... 29
SECTION 1.03. Acts of Holders of Notes ....................... 30
SECTION 1.04. Notices, etc., to Trustee or Issuer ............ 31
SECTION 1.05. Effect of Headings and Table of Contents ....... 31
SECTION 1.06. Successors and Assigns ......................... 31
SECTION 1.07. Separability Clause ............................ 31
SECTION 1.08. Benefits of Indenture .......................... 31
SECTION 1.09. Governing Law .................................. 32
SECTION l.10. Legal Holidays ................................. 32
SECTION 1.11. Consent to Jurisdiction and Service of Process . 32
SECTION 1.12. Disclaimer of Liability of Shareholders and
Others ......................................... 33
ii
4
ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF NOTES
SECTION 2.01. Form Generally; Title and Terms ................. 33
SECTION 2.02. Denominations ................................... 35
SECTION 2.03. Execution, Authentication and Delivery of Notes . 35
SECTION 2.04. Registration, Transfer and Exchange ............. 36
SECTION 2.05. Mutilated, Defaced, Destroyed, Lost and Stolen
Notes ........................................... 41
SECTION 2.06. Persons Deemed Owners ........................... 42
SECTION 2.07. Cancellation of Notes; Destruction Thereof ...... 43
ARTICLE THREE
SATISFACTION AND DISCHARGE; DEPOSITED MONEYS
SECTION 3.01. Satisfaction and Discharge of Indenture ......... 43
SECTION 3.02. Application of Trust Money ...................... 44
SECTION 3.03. Satisfaction, Discharge and Defeasance of Notes . 45
ARTICLE FOUR
COVENANTS OF THE ISSUER
AND THE TRUSTEE
SECTION 4.01. Payment of Principal and Interest ............... 47
SECTION 4.02. Maintenance of Office or Agency; Appointment of
Paying Agent .................................... 47
SECTION 4.03. Existence of Issuer ............................. 48
SECTION 4.04. Information ..................................... 49
SECTION 4.05. Maintenance of Property; Insurance .............. 49
SECTION 4.06. Trustee ......................................... 49
SECTION 4.07. Compliance with Laws ............................ 49
SECTION 4.08. Limitations on Debt ............................. 50
SECTION 4.09. Minimum Net Worth ............................... 50
SECTION 4.10. Debt Service Coverage ........................... 50
SECTION 4.11. Annual Real Property Appraisal .................. 50
SECTION 4.12. File Statement Annually with the Trustee ........ 50
SECTION 4.13. Further Assurances .............................. 51
SECTION 4.14. Defeasance of Certain Obligations ............... 51
iii
5
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default Defined; Acceleration of
Maturity; Waiver of Default ..................... 53
SECTION 5.02. Collection of Debt and Suits for Enforcement by
Trustee ......................................... 55
SECTION 5.03. Trustee May File Proofs of Claim ................ 56
SECTION 5.04. Trustee May Enforce Claims Without Possession of
Notes ........................................... 57
SECTION 5.05. Application of Money Collected .................. 58
SECTION 5.06. Limitation on Suits by Noteholders .............. 58
SECTION 5.07. Unconditional Rights of Holders to Receive
Principal and Interest .......................... 59
SECTION 5.08. Restoration of Rights and Remedies .............. 60
SECTION 5.09. Rights and Remedies Cumulative .................. 60
SECTION 5.10. Delay or Omission Not Waiver .................... 60
SECTION 5.11. Control by Holders .............................. 60
SECTION 5.12. Waiver of Past Defaults ......................... 61
SECTION 5.13. Undertaking for Costs ........................... 61
SECTION 5.14. Notice of Default to Holders of Notes ........... 61
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee;
During Default; Prior to Default ................ 62
SECTION 6.02. Certain Rights of Trustee ....................... 63
SECTION 6.03. Trustee Not Responsible for Recitals or Issuance
of Notes ........................................ 64
SECTION 6.04. Trustee and Agents May Hold Notes ............... 64
SECTION 6.05. Moneys Held in Trust ............................ 65
SECTION 6.06. Compensation and Indemnification of Trustee and
Its Prior Claim ................................. 65
SECTION 6.07. Right of Trustee to Rely on Officers'
Certificate, etc. ............................... 66
SECTION 6.08. Corporate Trustee Required; Eligibility ......... 66
SECTION 6.09. Resignation and Removal; Appointment of
Successor ....................................... 66
SECTION 6.10. Acceptance of Appointment by Successor .......... 68
SECTION 6.11. Merger, Conversion, Consolidation or Succession
to Business ..................................... 68
iv
6
ARTICLE SEVEN
CONSOLIDATION, MERGER, SALE OF ASSETS
SECTION 7.01. Issuer May Consolidate, etc., on Certain Terms .. 69
SECTION 7.02. Successor Issuer Substituted .................... 70
SECTION 7.03. Opinion of Counsel to Trustee ................... 70
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of
Holders ......................................... 71
SECTION 8.02. Supplemental Indentures With Consent of
Holders; Waiver of Future Compliance ............ 72
SECTION 8.03. Execution of Supplemental Indentures ............ 73
SECTION 8.04. Effect of Supplemental Indentures ............... 74
SECTION 8.05. Reference in Notes to Supplemental Indentures ... 74
ARTICLE NINE
REDEMPTION OF NOTES
SECTION 9.01. Optional Redemption ............................. 74
SECTION 9.02. Notice of Redemption ............................ 75
SECTION 9.03. Deposit of Redemption Price ..................... 76
SECTION 9.04. Payment of Notes Called for Redemption .......... 76
ARTICLE TEN
MEETINGS OF NOTEHOLDERS
SECTION 10.01. Notice; Quorum; Actions Taken ................... 77
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - Form of Accredited Investor Letter
v
7
THIS INDENTURE, dated as of March 15, 1996 between CORPORATE
PROPERTY INVESTORS, an unincorporated business trust organized and existing
under the laws of the Commonwealth of Massachusetts (hereinafter called the
"Issuer"), having its principal office at Three ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Plaza, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, and Chemical Bank, a corporation
organized and existing under the laws of the State of New York, as Trustee
hereunder (hereinafter called the "Trustee"), having its corporate trust office
at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS
WHEREAS, the Issuer has duly authorized the creation of an issue of
its 7 7/8% Notes Due 2016 (the "Notes") of substantially the tenor and amount
hereinafter set forth, and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders thereof; it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Notes, that the Notes and the
Trustee's certificate of authentication shall be in substantially the following
form:
[FORM OF FACE OF NOTE]
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR 0THER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON
8
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE, AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO ON THE REVERSE HEREOF.
[Private Placement Legend]
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF THE ISSUER THAT THIS NOTE MAY
NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE THIRD
ANNIVERSARY OF THE LATER OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR NOTE HERETO)
OR THE SALE HEREOF (OR ANY PREDECESSOR NOTE HERETO) BY THE ISSUER OR ANY
AFFILIATE OF THE ISSUER (COMPUTED IN ACCORDANCE WITH PARAGRAPH (d) OF RULE 144
UNDER THE SECURITIES ACT) OR (Y) BY AN AFFILIATE OF THE ISSUER OR BY ANY HOLDER
THAT WAS AN AFFILIATE OF THE ISSUER AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE
ISSUER, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER OVER WHICH IT EXERCISES SOLE INVESTMENT DISCRETION THAT IS AWARE THAT THE
RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3)
OUTSIDE THE UNITED STATES PURSUANT TO AN EXEMPTION FROM REGISTRATION IN
ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (4) TO AN INSTITUTIONAL
INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT WHICH DELIVERS A CERTIFICATE IN THE
FORM OF EXHIBIT A TO THE INDENTURE TO THE INDENTURE TRUSTEE UNDER THE INDENTURE
DATED AS OF MARCH 15, 1996, BETWEEN THE ISSUER AND CHEMICAL BANK, AS INDENTURE
TRUSTEE. THE HOLDER MUST, PRIOR TO ANY TRANSFER PURSUANT TO CLAUSE (3) OR (4)
ABOVE, FURNISH TO THE INDENTURE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
CUSIP #▇▇▇▇▇▇▇▇▇
No. ____ $________________
2
9
CORPORATE PROPERTY INVESTORS
7 7/8% NOTE DUE 2016
CORPORATE PROPERTY INVESTORS, an unincorporated business trust
organized and existing under the laws of the Commonwealth of Massachusetts
(hereinafter called the "Issuer", which term includes any successor entity under
the Indenture hereinafter referred to), for value received, hereby promises to
pay to __________ or registered assigns, upon surrender hereof the principal sum
of _________ United States Dollars ($_______) on March 15, 2016 and to pay
interest thereon, semiannually in arrears, on each March 15 and September 15 (an
"Interest Payment Date") in each year, commencing with September 15, 1996, at 7
7/8% per annum, from the most recent Interest Payment Date to which interest has
been paid or duly provided for, or, if the date hereof is an Interest Payment
Date to which interest has been paid or duly provided for, then from the date
hereof or, if no interest has been paid or duly provided for, from March 25,
1996, in each case until the principal hereof is paid or payment thereof is duly
provided for. Notwithstanding the foregoing, if the date hereof is after March 1
or September 1 in any year and before the following March 15 or September 15 in
such year, this Note shall bear interest from such March 15 or September 15, as
applicable, provided that if the Issuer shall default in the payment of interest
due on such March 15 or September 15, as applicable, then this Note shall bear
interest from the next preceding Interest Payment Date to which interest on the
Note has been paid or duly provided for, or if no interest has been paid or duly
provided for, from March 25, 1996. The interest so payable on any Interest
Payment Date will, subject to the provisions contained in the Indenture (as
hereinafter defined), be paid to the Person in whose name this Note is
registered at the close of business in the city of New York on the March 1 or
September 1 (in either case, the "Record Date") next preceding the September 15
or March 15, respectively, on which such Interest Payment Date falls. Such
payments shall be made in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts.
The statements set forth in the legend are an integral part of the
terms of this Note and by acceptance hereof each holder of this Note agrees to
be Subject to and bound by the terms and provisions set forth in such legend.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth on the face hereof.
3
10
Unless the certificate of authentication hereon has been executed by
the Trustee by the manual signature of one of its authorized officers, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed by the manual or facsimile signature of a duly authorized officer of
the Issuer.
Dated:
CORPORATE PROPERTY INVESTORS
[Seal]
By:
---------------------------------
DISCLAIMER OF LIABILITY OF SHAREHOLDERS AND OTHERS
Corporate Property Investors is the designation of the Trustees
under a Declaration of Trust, as amended and restated, on file with the
Secretary of the Commonwealth of Massachusetts, and neither the shareholders nor
the Trustees, officers, employees or agents of the Trust created thereby, nor
any of their personal assets, shall be liable hereunder, and all persons dealing
with the Trust shall look solely to the Trust estate for the payment of any
claims hereunder or for the performance hereof. The foregoing limitation of
liability is in addition to, and not exclusive of, any limitation of liability
applicable to such persons by operation of law. Each Holder by accepting a Note
waives and releases all such liability. Such waiver and release are part of the
consideration for the issue of the Notes.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Notes described in the within-mentioned
Indenture.
CHEMICAL BANK, as Trustee
By:
---------------------------------
Authorized Officer
4
11
[FORM OF REVERSE OF NOTE]
CORPORATE PROPERTY INVESTORS
7 7/8% NOTE DUE 2016
1. This Note is one of a duly authorized issue of Notes of the
Issuer designated as its 7 7/8% Notes Due 2016 (herein called the "Notes"),
limited (except as otherwise provided in the Indenture referred to below), in
aggregate principal amount to $250,000,000. The Notes are issued and to be
issued under the Indenture, dated as of March 15, 1996 (herein called the
"Indenture"), between the Issuer and Chemical Bank, as Trustee (herein called
the "Trustee," which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights thereunder of the Issuer, the
Trustee and the Holders (as defined in the Indenture) of the Notes. The Holders
of the Notes will be entitled to the benefits of, be bound by, and be deemed to
have notice of, all of the provisions of the Indenture. A copy of the Indenture
is on file and may be inspected at the offices of the paying agent referred to
below.
2. The Notes are direct unsecured obligations of the Issuer and rank
equally with all other unsecured and unsubordinated obligations of the Issuer.
The Notes are issuable in fully registered form without coupons in denominations
of $250,000 and integral multiples thereof.
3. (a) The Notes are not entitled to any mandatory sinking fund. The
Notes may be redeemed at the Issuer's option, in whole at any time or from time
to time in part, upon notice as described below, at a redemption price equal to
the sum of (i) the principal amount of the Note, plus interest through the date
of redemption, and (ii) the Make-Whole Amount (as defined in the Indenture), if
any (the "Redemption Price").
(b) Notice of redemption of the Notes, in whole or in part, as the
case may be, shall be given in accordance with paragraph 8, at least once not
less than 30 nor more than 60 days prior to the date fixed for redemption, all
as provided in the Indenture. Notice having been given, the Notes so called for
redemption shall become due and payable on the date fixed for redemption and
upon presentation and surrender thereof will be paid at the Redemption Price at
the place or places of payment and in the manner specified herein.
5
12
4. Pursuant to the terms of the Indenture, the Issuer has initially
appointed Chemical Bank as paying agent (the "Paying Agent"), as transfer agent
for the exchange and transfer of the Notes, and as Registrar. The Issuer shall
have the right, at any time and from time to time, to terminate any such
appointment and to appoint any substitute or additional paying agents, subject
to the terms and conditions set forth in the Indenture.
5. (a) Principal and the Make-Whole Amount, if any, on the Notes
will be payable against surrender of such Notes at the Corporate Trust Office of
the Paying Agent in the City of New York. Payment of interest on the Notes will
be made to the person in whose name such Note is registered at the close of
business in the City of New York on the Record Date next preceding the relevant
Interest Payment Date notwithstanding the cancellation of such Note upon any
transfer or exchange thereof subsequent to such Record Date and prior to such
Interest Payment Date; provided that if and to the extent the Issuer shall
default in the payment of interest due on such payment date, such defaulted
interest shall be paid to the persons in whose names the Notes are registered at
the close of business on a subsequent Record Date established by notice given by
mail by or on behalf of the Issuer to the Holders of the Notes not less than 15
days preceding such subsequent Record Date, such Record Date to be not less than
ten days preceding the date of payment of such defaulted interest. Payment of
such interest will be made (i) by dollar check drawn on a bank in the City of
New York sent to the Holder's registered address or (ii) to any Holder of
$5,000,000 or more aggregate principal amount of the Notes, upon written
instructions to the Paying Agent not later than the relevant Record Date, by
wire transfer in immediately available funds to a dollar account maintained by
such Holder, as the case may be, with a bank in the United States designated by
such Holder (but only if such bank shall have appropriate facilities therefor).
Interest payments on this Note shall include interest accrued from and including
the date indicated on the face hereof, or from but excluding the most recent
date to which interest has been paid or duly provided for, to but excluding the
related Interest Payment Date or date of Maturity as the case may be. Interest
payments for this Note shall be computed and paid on the basis of a 360-day year
of twelve 30-day months and, in the case of an incomplete month, the actual
number of days elapsed.
(b) Should the Issuer at any time default in the payment of any
principal of or the Make-Whole Amount, if any, or interest on this Note, the
Issuer will pay interest on the amount in default (to the extent permitted by
law in
6
13
the case of interest on interest) at the rate of interest borne by the Notes.
(c) The Issuer covenants that as long as this Note shall be
outstanding it shall at all times maintain a paying agency in the Borough of
Manhattan, the City of New York for payments with respect to Notes. Notice of
any termination or appointment and of any change in the office through which any
Paying Agent, transfer agent or Registrar will act will be promptly given once
in the manner described in paragraph 8.
6. Except as otherwise provided in the Indenture with respect to
amounts deposited by the Issuer with the Trustee to effect a defeasance of the
Notes or certain covenants and provisions in the Indenture, all moneys paid by
the Issuer to the Trustee or any other Paying Agent for the payment of principal
of and the Make-Whole Amount, if any, or interest on any Note and remaining
unclaimed for two years after such principal, the Make-Whole Amount, if any, or
interest shall have become due and payable shall be repaid to the Issuer and, to
the extent permitted by law, the Holder of such Note thereafter shall look only
to the Issuer for payment thereof and all liability, if any, of the Trustee or
any Paying Agent with respect to such deposited amount shall thereupon cease.
7. The Issuer agrees to provide the Holder hereof and any
prospective purchaser hereof designated by such Holder, upon request of such
Holder or such prospective purchaser, such information required by Rule 144A
(d)(4) under the Securities Act as will enable resales of this Note to be made
pursuant to Rule 144A; provided, however, that the Issuer shall not be required
to provide more information Pursuant to this paragraph 7 than is required by
Rule 144A as in effect on the date of the Indenture, but may elect to do so if
necessary as a result of subsequent amendments to such Rule. Further, this Note
and related documentation may be amended or supplemented from time to time (x)
to modify the restrictions on, and procedures for, resales and other transfers
of the Notes to reflect any change in applicable law or regulation (or the
interpretation thereof) or provide alternative procedure in compliance with
applicable law and practices relating to the resale or other transfer of
restricted securities generally and (y) to accommodate the issuance, if any, of
this Note in book-entry form and matters related thereto (although no such
amendment or supplement may require that this Note, if it is outstanding at the
time such amendment or supplement becomes effective, be placed in book-entry
form). The Holders of this Note Shall be deemed, by the acceptance of this Note,
to have agreed to any such amendment or supplement.
7
14
8. All notices to the Noteholders will be mailed to Holders of Notes
at their registered addresses.
9. (a) In case any Note shall become mutilated, defaced or be
apparently destroyed, lost or stolen, the Issuer in its discretion may execute,
and, upon the request of the Issuer, the Trustee shall authenticate and deliver,
a new Note bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Note, or in lieu of and in
substitution for the apparently destroyed, lost or stolen Note. In every case
the applicant for a substitute Note shall furnish to the Issuer and to the
Trustee such security or indemnity as may be required by them to indemnify and
defend and to save each of them and any agent of the Issuer or the Trustee
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the apparent destruction, loss or theft of such Note and of the
ownership thereof. In case any Note which has matured or is about to mature
shall become mutilated, defaced or be apparently destroyed, lost or stolen, the
Issuer may, instead of issuing a substitute Note pay or authorize the payment of
the same, if the applicant for such payment shall furnish to the Issuer and to
the Trustee security or indemnity and, in every case of apparent destruction,
loss or theft, satisfactory evidence, in each case as set forth in the preceding
sentence. Upon the issuance of any substitute Note, the Issuer 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.
(b) Upon the terms and subject to the conditions set forth in the
Indenture, and subject to paragraph 9(e), a Note or Notes, duly endorsed or
accompanied by a duly executed instrument of assignment and transfer, may be
exchanged for an equal aggregate principal amount of Notes in different
authorized denominations or Notes may be exchanged for a Note or Notes of
authorized denominations by surrender of such Note or Notes at the Corporate
Trust Office of the Trustee in the City of New York, together with a written
request for the exchange.
(c) Upon the terms and subject to the conditions set forth in the
Indenture, and subject to paragraph 9(e), a Note may be transferred in whole or
in part (in the amount of U.S. $250,000 and integral multiples thereof) by the
Holder or Holders surrendering the Note for registration of transfer at the
office of any transfer agent or at the office of the Registrar, duly endorsed or
accompanied by a duly executed instrument of assignment and transfer. Upon
presentation of this Note for registration of transfer as
8
15
provided herein, the Registrar shall register the transfer of this Note only if
(i) the Registrar shall have received written instructions from the Issuer to
effect such transfer, (ii) the Note is presented for registration of transfer at
least three years after the later of the issuance of this Note (or any
predecessor Note hereto) and the sale hereof (or any predecessor Note hereof) by
the Issuer or an affiliate (within the meaning of Rule 144 under the Securities
Act or any successor rule thereto, hereinafter referred to as an "Affiliate") of
the Issuer (computed in accordance with paragraph (d) of Rule 144 under the
Securities Act) by a Holder that certifies that it was not at the date of such
transfer or during the three months preceding such date of transfer an Affiliate
of the Issuer or (iii) the Holder hereof shall have properly completed the
Certificate of Transfer below or a transfer instrument substantially in the form
of such Certificate of Transfer and have delivered such Certificate of Transfer
or transfer instrument (together with any transferee certification required as
part of the Certificate of Transfer and any letter required by the Issuer or the
Trustee to be delivered by the transferee with such certificate of transfer or
transfer instrument) to the Trustee.
(d) The costs and expenses of effecting any exchange or registration
of transfer pursuant to the foregoing provisions, except for the expenses of
delivery by mail and except, if the Issuer shall so require, the payment of a
sum sufficient to cover any tax or other governmental charge or insurance
charges that may be imposed in relation thereto, will be borne by the Issuer.
(e) The Issuer, Trustee or Registrar may decline to accept any
request for an exchange or registration of transfer during the period of 15 days
preceding the due date for any payment of principal of or interest on the Notes.
(f) Each purchaser of this Note will be deemed to have represented
and agreed as follows: (i) it is purchasing this Note for its own account or an
account with respect to which it exercises sole investment discretion and it or
such account is (x) a "Qualified Institutional Buyer" (as defined in Rule 144A
of the Securities Act) and is aware that the sale to it is being made in
reliance on Rule 144A under the Securities Act; or (y) an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
and in the case of each of (x) and (y) it is acquiring this Note for investment
and not with a view to, or for offer or sale in connection with, any
distribution (within the meaning of the Securities Act) or fractionalization
thereof or with any intention of reselling this Note or any part hereof, subject
to any requirement of
9
16
law that the disposition of its property or the property of such investor
account or accounts to be at all times within its or their control and subject
to its or their ability to resell this Note pursuant to Rule 144A, Regulation S
or other exemption from registration available under the Securities Act; (ii) it
acknowledges that this Note has not been and will not be registered under the
Securities Act and may not be sold except as permitted below; (iii) it agrees
that (A) if it should transfer this Note (or any predecessor Note hereto) within
three years after the later of the original issuance of the Notes and the sale
thereof by the Issuer or an Affiliate of the Issuer (computed in accordance with
paragraph (d) of Rule 144 under the Securities Act) or if it was at the date of
such transfer or during the three months preceding such date of transfer an
Affiliate of the Issuer it will do so in compliance with any applicable state
securities or "Blue Sky" laws and only (1) to the Issuer, (2) to Qualified
Institutional Buyers in compliance with Rule 144A under the Securities Act, (3)
outside the United States pursuant to an exemption from registration in
accordance with Regulation S under the Securities Act, or (4) to an Accredited
Investor, but only if, in connection with any transfer a certificate in the form
of Exhibit A to the Indenture is delivered by the transferee to the Registrar,
and (B) it will give the transferee notice of any restrictions on resale of this
Note; prior to any proposed transfer pursuant to clause (3) or (4) above, the
purchaser may be required to furnish to the Trustee and the Issuer such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that the proposed transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act; (iv) it understands that this Note, unless
otherwise agreed by the Issuer and the Holder thereof, will bear the legend on
the face of this Note; (v) it has received the information, if any, requested
by it pursuant to Rule 144A under the Securities Act, has had full opportunity
to review such information and has received all additional information necessary
to verify such information; and (vi) it understands that the Issuer, the
Managers (as defined in the Offering Memorandum relating to the Notes) and
others will rely upon the truth and accuracy of the foregoing acknowledgments,
representations and agreements and agrees that if any of the acknowledgments,
representations or warranties deemed to have been made by it by its purchase of
this Note are no longer accurate, it shall promptly notify the Issuer. If it is
acquiring this Note as a fiduciary or agent for one or more investor accounts,
it represents that it has sole investment discretion with respect to each such
account and it has full power to make the foregoing acknowledgments,
representations and agreements on behalf of such account.
10
17
10. In case an Event of Default, as defined in the Indenture, shall
have occurred and be continuing, the principal of all of the Notes may be
declared due and payable, in the manner and with the effect, and subject to the
conditions, provided in the Indenture. The Indenture provides that in certain
events such declaration and its consequences may be waived by the Holders of
66-2/3% in aggregate principal amount of the Notes then outstanding and that,
prior to any such declaration, such Holders may waive any default under the
Indenture and its consequences, except a default in the payment of principal of
or the Make-Whole Amount, if any, or interest on any of the Notes. Any such
consent or waiver by the Holder of this Note (unless revoked as provided in the
Note) shall be conclusive and binding upon such Holder and upon all future
holders and owners of this Note and any Note which may be issued in exchange or
substitution herefor, whether or not any notation thereof is made upon this Note
or such other Notes.
11. The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than 66-2/3% in aggregate
principal amount of the Notes at the time Outstanding (or such lesser amount as
may have acted at a Noteholders' meeting pursuant to Article Ten of the
Indenture), evidenced as in the Indenture provided, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the Holders of the Notes; provided that no such
supplemental indenture shall without the consent of each Holder of an
Outstanding Note affected thereby (i) change the Stated Maturity of the
principal of or the due date for any installment of interest on, any Note, or
reduce the principal amount thereof or the Make-Whole Amount, if any, or the
interest thereon or on any amount payable upon redemption or acceleration
thereof, (ii) change the coin or currency in which any Note or interest thereon
is payable, (iii) impair the right to institute suit for the enforcement of any
payment on or with respect to any Note, (iv) reduce the above-stated percentage
in principal amount of the Outstanding Notes, the consent of whose Holders is
required to modify or amend the Indenture or the provisions of the Notes, (v)
modify any of the provisions of Section 5.12 or 8.02 of the Indenture, except to
increase any of the percentages set forth therein or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each Note affected thereby or (vi) reduce the quorum
requirements or the percentage of votes required for the adoption of any action
at a meeting of Noteholders. In addition, this Note and related documentation
may be amended or supplemented
11
18
from time to time (i) to modify the restrictions on, and procedures for, resales
and other transfers of this Note to reflect any change in applicable law or
regulation (or the interpretation thereof) or provide alternative procedures in
compliance with applicable law and practices relating to the resale or other
transfer of restricted securities generally and (ii) to accommodate the
issuance, if any, of Notes in book-entry form and matters related thereto
(although no such amendment or supplement may require that a Note Outstanding at
the time such amendment or supplement becomes effective be placed in book-entry
form). Each Holder of this Note shall be deemed, by the acceptance of such Note,
to have agreed to any amendment or supplement described in the immediately
preceding sentence.
12. The Indenture provides that persons entitled to vote a majority
in aggregate principal amount of the Notes at the time outstanding shall
constitute a quorum at a meeting of Holders of Notes. In the absence of such a
quorum at a meeting of Holders of Notes called by the Issuer, such meeting shall
be adjourned for a period of not less than 10 days and, in the absence of a
quorum at any such adjourned meeting, such adjourned meeting shall be further
adjourned for another period of not less than 10 days. At any subsequent
reconvening of any meeting of Holders of Notes adjourned for lack of a quorum,
persons entitled to vote 25% in aggregate principal amount of the Notes at the
time outstanding shall constitute a quorum. Any action which may be taken by a
meeting of Holders of Notes requires a vote of the Holders of the lesser of (a)
a majority of the aggregate principal amount of the Notes then outstanding or
(b) 75% in aggregate principal amount of the Holders of Notes represented and
voting at the meeting.
13. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and the Make-Whole
Amount, if any, and interest on this Note at the times and rate herein
prescribed.
14. The Indenture provides that the Issuer may merge or consolidate
with, or sell or convey all or substantially all its assets to, any corporation
or other entity and that such corporation or other entity may assume the
obligations of the Issuer under the Indenture and the Notes without the consent
of the Noteholders provided that certain conditions are met.
15. The Indenture provides that, upon satisfaction of certain terms
and conditions as set forth in the Indenture, the Issuer (a) will be discharged
from any
12
19
and all obligations in respect of this Note (except for certain obligations to
register the transfer or exchange of Notes, to replace any stolen, lost or
mutilated Note, to maintain paying agencies and hold monies in trust) and (b)
has the option to omit to comply with certain covenants and certain provisions
of the Indenture shall cease to apply, in the case of each of (a) and (b) above,
91 days after the deposit with the Trustee, in trust, of money and/or U.S.
Government Obligations (as defined in the Indenture), which through the payment
of interest and principal thereof in accordance with their terms will provide
money in sufficient amount to pay the principal of and interest on this Note on
the Stated Maturity of such payments in accordance with the terms of the
Indenture and this Note.
16. The Trustee and any agent of the Issuer or the Trustee may deem
and treat the person in whose name any Note is registered as the absolute owner
thereof for all purposes and neither the Issuer, the Trustee nor any such agent
shall be affected by notice to the contrary.
17. The Indenture and this Note shall be governed by and construed
in accordance with the laws of the State of New York.
18. All terms not otherwise defined herein shall have the meanings
specified in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations.
TEN COM--as tenants in common
UNIF GIFT MIN AT--..........Custodian............
Under Uniform Gifts to Minors Act
.................................
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above
list.
13
20
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(please print or typewrite name and address including zip code of assignee and
insert Taxpayer Identification No.)
this Note and all rights hereunder, hereby irrevocably constituting and
appointing ___________________________ attorney to transfer this Note on the
books of the Issuer, with full power of substitution in the premises.
(The following is not required for sales or other transfers of this Note to or
through or with the written approval of the Issuer.)
CERTIFICATE OF TRANSFER
In connection with any transfer of this Note occurring prior to the
date which is three years after the later of the issuance of this Note (or any
predecessor Note) and the sale hereof by an Affiliate of the Issuer (computed in
accordance with paragraph (d) of Rule 144 under the Securities Act) or by a
Holder that was at the date of such transfer or during the three months
preceding such date of transfer an Affiliate of the Issuer, the undersigned
confirms that:
Transferor Certifications
1. Applicable Exemption [check one]
[_] (a) This Note is being transferred by the undersigned to a transferee
that is, or that the undersigned reasonably believes to be, a
qualified institutional buyer (as defined in Rule 144A under the
Securities Act of 1933, as amended) pursuant to and in accordance
with the exemption from registration under the Securities Act of
1933, as amended, provided by Rule 144A thereunder.
or
14
21
[_] (b) This Note is being transferred by the undersigned to a transferee
that is an "accredited investor" (within the meaning of Rule
501(a)(l), (2), (3) or (7) under the Securities Act of 1933, as
amended) that has furnished to the Registrar a signed letter
containing certain representations and agreements relating to the
restrictions on transfers of such Notes (the form of which letter
can be obtained from the Registrar) and that the undersigned has
been advised by the transferee that it is acquiring this Note for
investment and not with a view to, or for offer or sale in
connection with, any distribution (within the meaning of the
Securities Act) or fractionalization thereof or with any intention
of reselling this Note or any part thereof, subject to any
requirement of law that the disposition of its property being at all
times within its control and subject to its ability to resell this
Note pursuant to Rule 144A, Regulation S or other exemption from
registration available under the Securities Act of 1933, as amended.
or
[_] (c) This Note is being transferred by the undersigned in an "Offshore
Transaction" (as defined in Regulation S under the Securities Act of
1933, as amended) to a transferee that is not, or that the
undersigned reasonably believes not to be, a "U.S. Person" (as
defined in Regulation S under the Securities Act of 1933, as
amended) pursuant and in accordance with the exemption from
registration under the Securities Act of 1933, as amended, provided
by Regulation S thereunder.
2. Affiliation with Issuer [check if applicable]
[_] (a) The undersigned represents and warrants that it is, or at some
time during which it held this Note was, an Affiliate of the
Issuer.
15
22
(b) If 2(a) above is checked and if the undersigned was not an
Affiliate of the Issuer at all times during which it held this
Note, indicate the most recent date as of which the
undersigned was an Affiliate of the Issuer:
_______________________________________________________.
(c) If 2(a) above is checked and if the transferee will not pay
the full purchase price for the transfer of this Note on or
prior to the date of transfer indicate when such purchase
price will be paid: _________________.
TO BE COMPLETED BY TRANSFEREE
IF 1(a) ABOVE IS CHECKED AND THE TRANSFEROR IS NOT A QUALIFIED INSTITUTIONAL
BUYER:
The undersigned represents and warrants that it is a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act of 1933,
as amended, and acknowledges that it has received such information regarding the
Issuer as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information.
Dated:________________________________ ______________________________________
NOTICE: To be executed by an officer.
TO BE COMPLETED BY TRANSFEREE
IF 1(c) ABOVE IS CHECKED:
The undersigned represents and warrants that it is not a "U.S.
Person" (as defined in Regulation S under the Securities Act of 1933, as
amended).
Dated:________________________________ ______________________________________
NOTICE: To be executed by an officer.
If none of the boxes under the Applicable Exemption section of the
Transferor Certifications is checked or if any of the above representations
required to be made by the transferee is not made, the Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof.
16
23
THE UNDERSIGNED HEREBY AGREES THAT, UNLESS THE BOX ABOVE UNDER ITEM 2(A) IS
CHECKED, THE UNDERSIGNED SHALL BE DEEMED TO HAVE REPRESENTED THAT IT IS NOT NOR
HAS IT BEEN AT ANY TIME DURING WHICH IT HELD THIS NOTE AN AFFILIATE, AS DEFINED
IN RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OF THE ISSUER.
Dated:________________________________ ______________________________________
NOTICE: The signature of the Holder to
this assignment must correspond with
the name as written upon the face of
this
(Schedule for Global Notes Only]
Note in every particular, without
alteration or enlargement or any
change whatsoever.
SCHEDULE OF EXCHANGES IN GLOBAL NOTE
The following exchanges of a part of this Global Note have been
made:
========================================================================
Amount of Amount of
decrease Increase Principal Signature
in in Amount of of
Principal Principal this Authorized
amount of Amount of Global Officer of
this this Note After Trustee or
Date of Global Global such Note
Exchange Note Note Exchange Custodian
-------- ---- ---- -------- ---------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
17
24
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
========================================================================
18
25
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions.
The following terms (except as otherwise expressly provided or
unless the context otherwise requires) for all purposes of this Indenture and of
any indenture supplemental hereto shall have the respective meanings specified
in this Section.
(1) The terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as
the singular;
(2) All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with Accounting Principles;
and
(3) The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Accounting Principles" means generally accepted accounting
principles as in effect from time to time, provided that when determining the
Issuer's consolidated assets, liabilities, revenues and expenses, the Issuer
shall include only its proportional share of the assets, liabilities, revenues
and expenses of any controlled entity that is not wholly owned.
"Accredited Investor" shall mean an "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
"Act" when used with respect to any Holder of a Note has the meaning
specified in Section 1.03.
"Affiliate" has the meaning assigned thereto in Rule 144 under the
Securities Act and any successor rule thereto.
"Appraisal" means an appraisal referred to in Section 4.11 hereof.
"Appraiser" means ▇▇▇▇▇▇▇▇ Associates, Inc., or any other nationally
recognized, independent appraiser that
19
26
is a member of the Appraisal Institute selected by the Issuer and acceptable to
the Trustee, which acceptance shall be deemed given unless the Trustee
reasonably objects to the selection on the basis of such appraiser's lack of
national recognition, independence or qualification as a member of the Appraisal
Institute.
"Board of Trustees" means the Board of Trustees of the Issuer or the
executive or any other committee of such Board authorized to exercise the powers
and authority of such Board in connection herewith.
"Board Resolution" when used with reference to the Issuer means a
copy of a resolution, certified by the Secretary or an Assistant Secretary of
the Issuer to have been duly adopted by the Board of Trustees and to be in full
force and effect on the date of such certification, and delivered to the
Trustee.
"Business Day" means a day which is not a Saturday, Sunday or a
legal holiday or a day on which banks are required or authorized to be closed in
the State of New York.
"Cash Flow" means for any period Consolidated Net Income for such
period plus depreciation and amortization expense for such period (determined in
accordance with Accounting Principles) to the extent deducted in determining
Consolidated Net Income for such period.
"Consolidated Debt" means as at any date the Debt of the Issuer and
its Consolidated Subsidiaries, determined on a consolidated basis in accordance
with Accounting Principles.
"Consolidated Interest Expense" means for any period consolidated
interest expense (whether accrued or paid) on the Consolidated Debt for such
period, including, without limitation but without duplication, (i) any interest
accrued or paid during such period which is capitalized, (ii) the portion of any
obligation under capitalized leases allocable to interest expense during such
period and (iii) any dividends paid in cash during such period on preferred
stock of a Consolidated Subsidiary held by a person other than the Issuer or a
wholly-owned Consolidated Subsidiary, in each case determined in accordance with
Accounting Principles.
"Consolidated Net Income" means for any period the consolidated
income (or loss) before nonrecurring items of the Issuer and its Consolidated
Subsidiaries for such period, determined in accordance with Accounting
Principles.
20
27
"Consolidated Net Worth" means at any date Gross Assets at such date
less the aggregate outstanding principal amount of Consolidated Debt (excluding
Excludable Non-Recourse and Subsidiary Debt) at such date.
"Consolidated Secured Debt" means at any date that portion of
Consolidated Debt at such date that is attributable to (i) Secured Debt of the
Issuer at such date and (ii) Debt of any Subsidiary at such date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity (including, without limitation, a partnership or limited liability
company), the accounts of which would be consolidated with those of the Issuer
in its consolidated financial statements in accordance with Accounting
Principles if such statements were prepared as of such date.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office is, at the date of execution of this
Indenture, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trustee Administration Department.
"Debt" of any Person (the "Obligor") means at any date, without
duplication, (i) all obligations of the Obligor for borrowed money or for the
unpaid purchase price of property or services or for unpaid taxes, (ii) all
obligations of any other Person for borrowed money or for the unpaid purchase
price of property or services or for unpaid taxes in respect of which the
Obligor is liable, contingently or otherwise, to pay or advance money or
property as guarantor, endorser or otherwise (except as endorser for collection
in the ordinary course of business) or which the Obligor has agreed to purchase
or otherwise acquire, (iii) all obligations of any other Person for borrowed
money or for the purchase price of property or services or for unpaid taxes
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including, without limitation, accounts and contract rights) owned by the
Obligor whether or not the Obligor has assumed or become liable for the payment
of such obligations and (iv) any lease of property, real or personal, by the
Obligor, as lessee, to the extent that, in accordance with Accounting
Principles, it is required to be capitalized on a balance sheet of the lessee;
provided, however, that with respect to obligations set forth in clause (iii)
above involving the Obligor's subordination of (a) the payment of lease rentals
on Real Property owned by the Obligor or (b)
21
28
the Obligor's interest in Real Property to the payment of a mortgage loan or
other secured indebtedness which is solely the obligation of any other Person,
the amount of indebtedness or other obligations of any other Person to be
included in Debt shall not be deemed to exceed the amount of the Obligor's
interest in such Real Property as determined in accordance with the most recent
Appraisal.
"Depositary" means the depositary for the Global Notes initially
appointed by the Issuer pursuant to Section 2.01(f), until a successor
depositary shall have become such pursuant to such Section and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder.
"Event of Default" means any event or condition specified in Section
5.01.
"Excludable Non-Recourse and Subsidiary Debt" means as of any
determination date that portion of Consolidated Debt that is attributable to the
following (as set forth in a certificate from the Chairman or chief financial
officer delivered to the Trustee): (i) that portion of any Non-Recourse Debt of
the Issuer or any Subsidiary that is in excess of the FMV of the assets securing
such Debt and (ii) that portion of any Subsidiary's Debt which is not otherwise
recourse to the Issuer in excess of the FMV of such Subsidiary's assets. Such
officer's certificate shall set forth the FMV of the relevant assets (together
with the basis therefor). For purposes of this definition, the term "FMV" with
respect to any asset means (a) if such asset is Real Property that was valued in
the most recent Appraisal, then the value of such asset as set forth in such
appraisal, (b) if such asset is Real Property acquired after the valuation date
of the most recent Appraisal, then the purchase price thereof and (c) in all
other cases, the fair market value as determined in good faith by the Chairman
or chief financial officer of the Issuer.
"Global Note" has the meaning specified in Section 2.01(f).
"Gross Assets" means at any date (without duplication) the sum of
(i) the consolidated Real Property Value of the Issuer and its Consolidated
Subsidiaries, (ii) cash and all other assets of the Issuer and its Consolidated
Subsidiaries which, in accordance with Accounting Principles, would at such time
be included on a consolidated balance sheet of the Issuer and its Consolidated
Subsidiaries (other than Real Property and any asset which
22
29
is classified as an intangible asset under Accounting Principles, including,
without limitation, goodwill, patents, trademarks, trade names, copyrights and
franchises), all determined as of the valuation date for the most recent
Appraisal and (iii) if not included in the assets described in clause (ii), the
value of any notes and contract receivables held by the Issuer pursuant to its
Employee Share Purchase Plan as indicated in the most recent Appraisal.
"Holder" or "Noteholder" when used with respect to any Note means
the Person in whose name the Note is registered in the Note Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest" or "interest" means the interest payable on the Notes.
"Interest Payment Date" has the meaning specified in the form of
face of Note.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this instrument until a successor entity shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor entity.
"Lien" means any mortgage, lien, pledge, charge or other security
interest or encumbrance of any kind (including any right under any conditional
sale or other title retention agreement).
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or accelerated payment)
that would have been payable in respect of such dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semiannual basis, such principal and interest at the Reinvestment Rate
(determined on the Business Day immediately preceding the date of such
redemption or declaration of accelerated payment) from the respective dates on
which such principal and interest would have been payable if such redemption or
accelerated payment
23
30
had not been made, over (ii) the aggregate principal amount of the Notes being
redeemed or paid.
"Maturity" means, when used with respect to any Note, the date on
which the principal and the Make-Whole Amount, if any, of such Note becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration or otherwise.
"Non-Recourse Debt" of any Person means at any time all Debt secured
by a Lien in or upon property owned by such Person where the rights and remedies
of the holder of such Debt do not extend to assets other than the property
constituting security therefor. Notwithstanding the foregoing, Debt of any
Person shall not fail to constitute Non-Recourse Debt by reason of the inclusion
in any document evidencing, governing, securing or otherwise relating to such
Debt provisions to the effect that such Person shall be liable, beyond the
assets securing such Debt, for (i) misapplied moneys, including insurance and
condemnation proceeds and security deposits, (ii) liabilities of the holders of
such Debt and their affiliates to third parties, including environmental
liabilities, (iii) breaches of customary representations and warranties given to
the holders of such Debt and (iv) such other obligations as are customarily
excluded from the exculpation provisions of so-called "non-recourse" loans made
by commercial lenders to institutional borrowers.
"Note" means a registered Note authenticated and delivered under
this Indenture.
"Note Register" has the meaning specified in Section 2.04(a).
"Notice of Issuance" means a Request of the Issuer pursuant to
Section 2.03.
"Officers' Certificate" means a certificate signed by both the
President and any Senior Vice-President or the General Counsel of the Issuer and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
an employee of or counsel for the Issuer, Cravath, Swaine & ▇▇▇▇▇ or other
counsel of nationally recognized standing.
"Outstanding" when used with respect to Notes means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
24
31
(i) Notes theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Notes for whose payment money in the necessary amount has
been theretofore deposited with the Trustee or the Paying Agent in
trust for the Holders of such Notes; and
(iii) Notes in exchange for or in lieu of which other Notes
have been authenticated and delivered or which have been paid
pursuant to Section 2.05 of this Indenture unless proof satisfactory
to the Trustee is presented that any such Notes are held by bona
fide holders in due course;
Provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder and for purposes
of determining Outstanding Notes under Section 5.01, Notes owned by the Issuer
or any Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which the Trustee knows to be so owned shall be so
disregarded. Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate
of the Issuer or such other obligor. In case of a dispute as to such right, any
decision by the Trustee taken in good faith upon and in accordance with the
advice of counsel shall be full protection to the Trustee.
"Paying Agent" means any Person appointed by the Issuer pursuant to
Section 4.02 to pay the principal of, the Make-Whole Amount, if any, or interest
on any Notes on behalf of the Issuer.
"Person" means any individual, corporation, partnership, joint
venture, association joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Private Placement Legend" has the meaning set forth in Section
2.04(g).
"Purchase Agreement" means the Purchase Agreement among the Issuer,
▇.▇. ▇▇▇▇▇▇ Securities Inc. and Lazard Freres & Co. LLC dated as of March 20,
1996.
25
32
"Qualified Institutional Buyer" has the meaning assigned thereto in
Rule 144A.
"Real Property" means land, right in land, and any buildings,
structures, improvements, furnishings, fixtures and equipment located on or used
in connection with land and rights in land, or interests therein, including,
without limitation, fee ownership of land or improvements, options, leasehold,
joint venture, limited liability company or partnership interests in land or
improvements, or notes, debentures, bonds or other evidences of indebtedness
collateralized by or otherwise secured in any way by mortgages, or interests in
any of the foregoing instruments.
"Real Property Value" means at any time the fair market value of the
equity in all interests in Real Property held at such time by the Issuer and its
Consolidated Subsidiaries as set forth in the most recent Appraisal to which
shall be added related debt secured by real property, to the extent that such
debt has been deducted in determining such fair market value.
"Record Date" has the meaning specified in the form of face of Note.
"Redemption Date" has the meaning set forth in Section 9.02.
"Redemption Price" has the meaning set forth in Section 9.01.
"Registrar" has the meaning set forth in Section 2.04.
"Regulation S" means Regulation S under the Securities Act, and any
successor regulation thereto.
"Reinvestment Rate" means .50% (one-half of one percent) plus the
arithmetic mean of the yields under the respective headings "This Week" and
"Last Week" published in the Statistical Release under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the period remaining until the Stated Maturity of the Notes. If
no maturity exactly corresponds to such period, yields for the two published
maturities most closely corresponding to such period shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purposes
of calculating the Reinvestment Rate, the most
26
33
recent Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
"Request" and "Order" when used with reference to the Issuer mean,
respectively, a written request or order signed in the name of the Issuer by the
Chairman of the Board of Trustees or the President or any Senior Vice President,
the General Counsel, or the Treasurer of the Issuer, delivered to the Trustee.
"Responsible Officer" when used with respect to the Trustee means
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Rule 144A" means Rule 144A under the Securities Act and any
successor rule thereto.
"Secured Debt" means, with respect to any Person, any Debt of such
Person that is secured by a Lien on any of its assets.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity" when used with respect to any Note or any
installment of interest thereon means the date specified in such Note as the
fixed date on which the principal of such Note, the Make-Whole Amount, if any,
or such installment of interest is due and payable.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded U.S.
Government Obligations adjusted to constant maturities or, if such statistical
release is not published at the time of any determination hereunder, then such
other reasonably comparable index which shall be designated by the Issuer.
"Subordinated Securities" of any Person means shares of beneficial
interest or stock, or other equity interest, in such Person (whether common or
preferred, voting or nonvoting, redeemable or non-redeemable) and Debt of such
Person which shall have been expressly subordinated in right of payment at
maturity, upon acceleration or otherwise by the instrument creating such Debt to
the Notes.
"Subsidiary" means (i) any corporation, trust or other entity
governed by a board of directors, board of trustees or other body exercising
similar authority over the affairs thereof, securities or ownership interests of
which having ordinary voting power to elect a majority of such
27
34
board or body are at the time of determination directly or indirectly owned by
the Issuer, (ii) any limited liability company, general or limited partnership
or joint venture of which the Issuer directly or indirectly owns the interest of
a manager, general partner or joint venture and (iii) any other legal entity in
which the Issuer owns a majority of voting equity interests; provided, however,
that (A) for purposes of Section 5.01, such limited liability company,
partnership, venture or entity shall be deemed not to be a "Subsidiary" unless,
pursuant to applicable law and the instruments and agreements governing the
organization of such limited liability company, partnership, venture or entity,
the Issuer directly or indirectly shall have the right to cause such limited
liability company, partnership, venture or entity to take, or to refrain from
taking, the action described in such Section and (B) for purposes of Article
Four, such limited liability company, partnership, venture or entity shall be
deemed not to be a "Subsidiary" unless, pursuant to applicable law and the
instruments and agreements governing the organization of such limited liability
company, partnership, venture or entity, the Issuer directly or indirectly shall
have the right to cause compliance by such limited liability company,
partnership, venture or entity with the provisions of such Article. For purposes
of the proviso to the preceding sentence, the Issuer shall not be deemed to have
the right to cause the subject limited liability company, partnership, venture
or entity to take or refrain from taking any action or to comply with any
covenant unless the Issuer has the right to cause the subject limited liability
company, partnership, venture or entity to obtain the necessary funds required
for it to take or refrain from taking such action or to comply with such
covenants.
"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 such successor Trustee.
"United States" means the United States of America.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed by the United States.
"U.S. Person" has the meaning assigned thereto in Regulation S.
28
35
SECTION 1.02. Form of Documents Delivered to Trustee; Compliance
Certificates and Opinions. In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect to
some matters and one or more other such Persons as to other matters, and any
such Person may certify or give an opinion as to such matters in one or several
documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such certificate or opinion is based are
erroneous. Any such certificate or any Opinion of Counsel may be based, insofar
as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Issuer stating that the
information with respect to such factual matters is in the possession of the
Issuer unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture other than a Request pursuant
to Section 2.03 for the initial authentication of Notes pursuant to this
Indenture, there shall be furnished to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this
29
36
Indenture shall include a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. Acts of Holders of Notes.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Notes may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent or
proxy duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Issuer. Such instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders of Notes signing
such instruments. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a Note,
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Section 1.03.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of his holding the same, shall be proved by the Note
Register.
(d) At any time prior to the taking of any action by the Holders of
the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any Holder of a Note the serial number
of which is shown by the evidence to be included in the Notes the Holders of
which have consented to such action may (to the extent permitted by applicable
law), by filing written notice with the Trustee at its Corporate Trust Office
and upon proof of holding as provided in this Section 1.03, revoke such consent
so far as it concerns such Note. Except as aforesaid, any such action by the
Holder of any Note (to the extent permitted by applicable law) shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Note and of any Note issued in exchange or substitution therefor
irrespective of whether or not any notation in regard thereto is made upon each
Note or upon any Note issued in exchange or substitution therefor.
30
37
SECTION 1.04. Notices, etc., to Trustee or Issuer. Except as
provided in Section 5.01, any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders of Notes or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder of Notes or by the Issuer shall
be sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office to the attention of Corporate Trustee Administration
Department, or
(2) the Issuer by the Trustee or by any Holder of Notes shall
be sufficient for every purpose hereunder if in writing, and
delivered by hand, mailed, first-class postage prepaid, or telexed
or telecopied and confirmed by mail, first-class postage prepaid,
addressed to the Issuer at the address of its principal office
specified in the first paragraph of this instrument, to the
attention of its Secretary, or at any other address previously
furnished in writing to the Trustee by the Issuer.
All notices, elections, requests and demands required or permitted under this
Indenture shall be in the English language.
SECTION 1.05. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 1.06. Successors and Assigns. All covenants and agreements
in this Indenture by the Issuer or the Trustee shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 1.07. Separability Clause. In case any provision in this
Indenture or the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.08. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors and assigns hereunder and the Holders of Notes, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
31
38
SECTION 1.09. Governing Law. This Indenture and each of the Notes
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 1.10. Legal Holidays. In any case where the Stated Maturity
of any Note or the date on which any installment of interest is due and payable
shall be a day which is not a Business Day, then (notwithstanding any other
provision of this Indenture or the Notes) payment of interest, the Make-Whole
Amount, if any, or principal need not be made on such day but may be made on the
next succeeding Business Day, with the same force and effect as if made at the
Stated Maturity or due date and no interest shall accrue on such payment for the
intervening period after such Stated Maturity or due date to such next
succeeding Business Day.
SECTION 1.11. Consent to Jurisdiction and Service of Process. The
Issuer waives, to the fullest extent permitted by law, any objection which it
may have to the laying of the venue in any suit, action or proceeding arising
out of or relating to this Indenture or any Note brought in any New York State
or United States Federal court sitting in the Borough of Manhattan in the City
of New York and any claim that any such suit, action or proceeding brought in
such court has been brought in an inconvenient forum. The Issuer agrees that
final judgment in any such suit, action or proceeding brought in such a court
shall be conclusive and binding upon the Issuer and may be enforced in any court
to the jurisdiction of which the Issuer is subject by a suit upon such judgment,
provided that service of process is effected upon the Issuer in the manner
specified in the following paragraph or as otherwise permitted by law.
As long as any of the Notes remain Outstanding, the Issuer will at
all times during which the Issuer does not maintain an office in the Borough of
Manhattan, the City of New York have an authorized agent in the Borough of
Manhattan, the City of New York upon whom process may be served in any legal
action or proceeding arising out of or relating to the Indenture or any Note and
will upon the appointment of such agent promptly notify the Trustee in writing
of the name and address of such agent. Service of process upon such agent and
written notice of such service mailed or delivered to the Issuer shall to the
extent permitted by law be deemed in every respect effective service of process
upon the Issuer in any such legal action or proceeding.
Nothing in this Section shall affect the right of the Trustee or any
Noteholder to serve process in any manner
32
39
permitted by law or limit the right of the Trustee to bring proceedings against
the Issuer in the courts of any jurisdiction or jurisdictions.
SECTION 1.12. Disclaimer of Liability of Shareholders and Others.
Corporate Property Investors refers to the Trustees for the time being under a
Second Amended and Restated Declaration of Trust dated as of March 16, 1995, as
amended, on file in the office of the Secretary of the Commonwealth of
Massachusetts. The Declaration of Trust provides that the obligations of
Corporate Property Investors shall not constitute personal obligations of its
Trustees, officers, shareholders, employees or agents, and that all persons
dealing with Corporate Property Investors shall look solely to the assets of
Corporate Property Investors for satisfaction of any liability of Corporate
Property Investors, and will not seek recourse against such Trustees, officers,
shareholders, employees or agents or any of them or any of their personal assets
for such satisfaction. The foregoing limitation of liability is in addition to,
and not exclusive of, any limitation of liability applicable to such persons by
operation of law. Each Holder by accepting a Note waives and releases all such
liability. Such waiver and release are part of the consideration for the issue
of the Notes.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF NOTES
SECTION 2.01. Form Generally; Title and Terms.
(a) The Notes, including the face of the Notes, the reverse of the
Notes and the Trustee's certificate of authentication shall be in substantially
the forms set forth above, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers executing such Notes, as evidenced by such execution.
The definitive Notes shall be printed, lithographed, engraved or
otherwise produced as determined by the officers executing such Notes as
evidenced by such execution.
33
40
(b) Except for Notes authenticated and delivered in exchange for or
in lieu of Notes pursuant to Section 2.04, 2.05 or 8.05, the aggregate principal
amount of Notes which may be authenticated and delivered under this Indenture is
limited to $250,000,000 principal amount.
The Notes shall be known and designated as the 7 7/8% Notes Due 2016
of the Issuer. Their Stated Maturity shall be March 15, 2016. The Notes shall
bear interest as provided in the form of Note.
(c) The Notes and transfers thereof shall be registered as provided
in Section 2.04.
(d) Each Note shall be dated the date of its authentication.
(e) The Notes shall not be entitled to any mandatory sinking fund.
The Notes shall be redeemable by the Issuer as provided for in Article Nine.
(f) The Notes may be issued in whole or in part in the form of one
or more global notes (the "Global Notes"). The Issuer shall execute and the
Trustee shall, in accordance herewith and upon the Order of the Issuer,
authenticate and deliver one or more Global Notes that (i) shall represent and
shall be denominated in an aggregate principal or face amount of the Outstanding
Notes to be represented by such Global Note or Notes, (ii) shall be registered
in the name of the Depositary or the nominee of the Depositary, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (iv) shall bear the legend set forth below.
The Issuer initially designates The Depository Trust Company ("DTC")
as the depositary for the Global Notes. The Issuer and the Trustee shall enter
into a customary letter of representation with DTC, providing for, among other
things, a legend restricting transfer of the Global Notes.
The Depositary nay be treated by the Issuer as the owner of such
Global Notes for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer from giving effect to any written certification,
proxy or other authorization furnished by or to the Depositary or impair, as
between the Depositary and its participants, the operation of customary
practices governing the exercise of the rights of a holder of any Note.
The Holder of any Global Note, by its acceptance thereof, and the
Trustee agree that such Global Note shall
34
41
be transferred pursuant to Section 2.04 hereof only in whole and not in part to
a nominee of DTC, a successor to DTC or a nominee of such successor which is
another clearing agency registered under the Securities Exchange Act of 1934, as
amended.
If at any time DTC (or any successor Depositary) notifies the Issuer
that it is unwilling or unable to continue as Depositary for the Global Note or
at any time DTC (or such successor Depositary) shall no longer be eligible under
this Section 2.01, the Issuer shall appoint a successor Depositary with respect
to the Global Notes and such successor shall enter into a customary letter of
representation with the Issuer and the Trustee. If a successor Depositary for
the Global Notes is not appointed by the Issuer within 90 days after the Issuer
receives such notice or becomes aware of such ineligibility, or if an Event of
Default has occurred and is continuing, the Notes shall thereafter no longer be
in the form of the Global Notes and the Issuer shall execute and the Trustee
upon receipt of an Order of the Issuer for the authentication and delivery of
certificated Notes, will authenticate and deliver, certificated Notes in any
authorized denominations in an aggregate principal amount of the Global Notes in
exchange for the Global Notes, such certificated Notes to be in denominations
and registered in the names specified by the Depositary; provided that if such
Event of Default is waived pursuant to Section 5.01 or is no longer continuing,
such certificated Notes need not be issued and if already issued may, at the
Holder's request, be represented again by a Global Note in accordance with this
Section 2.01.
SECTION 2.02. Denominations. The Notes are issuable in registered
form in denominations of $250,000 and integral multiples thereof.
SECTION 2.03. Execution. Authentication and Delivery of Notes. The
Notes shall be executed on behalf of the Issuer by a duly authorized officer of
the Issuer. Any such signature may be manual or facsimile.
Notes bearing the manual or facsimile signature of any Person who
was, at the actual date of execution thereof, a duly authorized officer of the
Issuer shall bind the Issuer, notwithstanding that such Person has ceased to be
a duly authorized officer prior to the authentication and delivery of such
Notes. At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver to the Trustee for authentication Notes
executed by the Issuer and, upon written Request of the Issuer, the Trustee
shall authenticate and deliver such Notes as in this Indenture provided and not
otherwise.
35
42
Except as otherwise provided in Sections 3.03 and 4.14 of this
Indenture with respect to amounts deposited by the Issuer with the Trustee to
effect a defeasance of the Notes or certain covenants and provisions in the
Indenture, all monies paid by the Issuer to the Trustee or other Paying Agent
for the payment of principal of and, the Make-Whole Amount, if any, or interest
on any Note and remaining unclaimed for two years after such principal,
Make-Whole Amount or interest shall have become due and payable shall be repaid
to the Issuer and, to the extent permitted by law, the Holder of such Note
thereafter shall look only to the Issuer for payment thereof and all liability,
if any, of the Trustee or any Paying Agent with respect to such deposited amount
shall thereupon cease.
SECTION 2.04. Registration, Transfer and Exchange.
(a) The Issuer shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 4.02 for such purpose
being herein sometimes collectively referred to as the "Note Register") in
which, subject to such reasonable regulations as it may prescribe, the Issuer
shall provide for the registration of Notes and for transfers of Notes. The
Issuer hereby appoints Chemical Bank as the Registrar. The registration of
transfer of a Note by the Registrar shall be deemed to be the acknowledgment of
such transfer on behalf of the Issuer. Upon surrender for registration of
transfer of any Note at an office or agency of the Issuer designated pursuant to
Section 4.02 for such purpose, the Issuer shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of any authorized denomination and of a like
aggregate principal amount.
(b) Notwithstanding the provisions of Section 2.04(a), the following
procedures and restrictions with respect to the registration of any transfer of
any Note other than a Global Note shall apply:
(i) The Registrar shall register the transfer of any Note, whether
or not such Note bears the Private Placement Legend, if the requested
transfer is (x) to the Issuer, or (y) by a Holder that certifies that it
was not at the date of such transfer or during the three months preceding
such date of transfer an Affiliate of the Issuer and such transfer is at
least three years after the later of (A) the issue date of such Note (or
any predecessor of such Note) and (B) the last date on which the Issuer or
any Affiliate of the
36
43
Issuer was the beneficial owner of such Note (or any predecessor Note),
determined as set forth in Section 2.04(j) hereof and computed in
accordance with paragraph (d) of Rule 144 under the Securities Act. No
further documents, certifications or other evidence need be supplied in
respect of any such transfer.
(ii) The Registrar shall register the transfer of a Note, whether or
not such Note bears the Private Placement Legend, if each of (i) the
Holder of such Note and (ii) the proposed transferee (if so required by
the Certificate of Transfer) has properly completed the Certificate of
Transfer, or a transfer instrument substantially in the form of such
Certificate of Transfer, and has delivered such Certificate to the
Registrar, together, in the case of a transfer to an Accredited Investor,
with a letter from the transferee in the form of Exhibit A hereto.
(iii) The Registrar shall register the transfer of a Note to or from
a depositary organization for any other institutional trading system
designated by the Issuer in a Notice of Issuance or otherwise set forth in
a written notice to the Registrar. In connection with any such transfer to
such depositary organization for deposit in such other institutional
trading system, no further documents, certifications or other evidence
need be supplied to the Registrar in respect thereof. In connection with
any such transfer out of such other institutional trading system, the
Registrar shall receive such documents, certifications or other evidence
from the transferor or transferee as are specified in such Notice of
Issuance or other written notice.
(iv) If so specified in the Notice of Issuance with respect to the
Notes, the Registrar shall register the transfer of the Notes, from or
through any dealer, placement agent or other person specified by the
Issuer in such Notice of Issuance which has agreed in writing to offer,
sell and effect transfers of Notes only to a prospective purchaser who
such dealer, placement agent or other person has reasonable grounds to
believe and does believe is a Qualified Institutional Buyer or an
Accredited Investor who will make representations with respect to itself
substantially to the same effect as set forth in the Certificate of
Transfer. No further documents, certifications or other evidence need be
supplied in respect of any such transfer.
(v) With respect to any requested transfer of a Note not provided
for in clauses (i) through (iv)
37
44
above, the Registrar shall, subject to such additional procedures as the
Issuer may establish, register such transfer upon surrender of such Note.
Such additional procedures may include, without limitation, (x) the
delivery by the transferor or the proposed transferee of an opinion of
counsel reasonably satisfactory to the Issuer to the effect that such
transfer may be effected without registration under the Securities Act and
(y) the delivery by the proposed transferee of representation letters in
form and substance reasonably satisfactory to the Issuer to ensure
compliance with the provisions of the Securities Act.
(vi) Upon receipt of the duly completed Note and any required
instruments of transfer, transfer notices or other written statements or
documents, the Registrar shall register the transfer and complete,
countersign and deliver in the name of the designated transferee or
transferees, one or more new Notes of authorized denominations in the
principal amount specified on such Note.
(vii) The Registrar shall have no liability whatsoever to any party
so long as it registers the transfer in accordance with the, instructions
described here.
(c) Notwithstanding any other provisions of this Indenture, so long
as a Global Note remains Outstanding, and is held by the Registrar, as custodian
for the Depositary, unless the transferee shall otherwise request in writing to
the Registrar, no certificated Note shall be issued or authenticated in
connection with the transfer of any certificated Note pursuant to the exemption
from registration provided by Rule 144A. Instead, upon acceptance for transfer
of any certificated Note, the Registrar shall cancel such certificated Note and
shall, in lieu of issuing a new certificated Note in exchange for the
certificated Note surrendered for registration of transfer, endorse on the
schedule affixed to such Global Note (or on a continuation of such schedule
affixed to such Global Note and made a part thereof), an appropriate notation
evidencing the date and an increase in the principal amount of such Global Note
in an amount equal to the principal amount of such certificated Note. All
provisions of this Section 2.04 relating to the transfer of Notes (other than
those relating to the issuance and authorization of a new Note) shall apply to
any transfer resulting in an increase in the principal amount of such Global
Note. The Registrar shall notify the Depositary promptly of any increase in the
principal amount of any Global Note.
38
45
Notwithstanding any other provisions of this Indenture, resales or
other transfers of Notes represented by a Global Note made in compliance with
Rule 144A or made on or subsequent to the date that is three years after the
later of (i) the original issue date of such Note (or any predecessor of such
Note) and (ii) the last day on which the Issuer or any Affiliate of the Issuer
was the beneficial owner of such Note (or any predecessor of such Note),
determined as set forth in Section 2.04(j) hereof and computed in accordance
with paragraph (d) of Rule 144 under the Securities Act, by a beneficial owner
that was not at the date of such transfer or during the three months preceding
such date of transfer an Affiliate of the Issuer will be conducted according to
the rules and procedures of the Depositary applicable to U.S. corporate debt
obligations and without notice to, or action by, the Registrar. Upon notice from
the beneficial owner (or an agent of the beneficial owner) of Notes represented
by a Global Note that such beneficial owner intends to resell or transfer such
Notes (x) otherwise than pursuant to Rule 144A prior to three years after the
later of (i) the original issue date of such Note (or any predecessor of such
Notes) and (ii) the last date on which the Issuer or any Affiliate of the Issuer
was the beneficial owner of such Note (or any predecessor of such Note),
determined as set forth in Section 2.04(j) hereof and computed in accordance
with paragraph (d) of Rule 144 under the Securities Act or (y) otherwise than
pursuant to Rule 144A if such beneficial owner was at the proposed date of such
transfer or during the three months preceding such proposed date of transfer an
Affiliate of the Issuer, and upon satisfaction by the transferor and, if
applicable, the transferee, of the conditions necessary for the registration of
transfer of a Note set out in Section 2.04(b), the Registrar shall and is
authorized by the holder of such Global Note, by its acceptance thereof, to
endorse on the schedule affixed to such Global Note (or on a continuation of
such schedule affixed to such Global Note and made a part thereof), an
appropriate notation evidencing the date and the reduction in the principal
amount of such Global Note equal to the principal amount of the portion of the
Global Note being transferred and shall authenticate and deliver a certificated
Note registered in the name of the transferee or its nominee in an equal
aggregate principal amount. The Registrar shall notify the Depositary promptly
of any decrease in the principal amount of any Global Note.
(d) Except as otherwise provided on the face of the Notes with
respect to the payment of interest on Notes transferred between Record Dates and
Interest Payment Dates, each Note authenticated and delivered upon any transfer
or exchange for or in lieu of the whole or any part of any Note
39
46
shall carry all the rights to interest, if any, accrued and unpaid and to accrue
which were carried by the whole or such part of such Note.
(e) The Issuer, Trustee or Registrar may decline to exchange or
register the transfer of any Note during the period of 15 days preceding (i) the
due date for any payment of principal of, the Make-Whole Amount, if any, or
interest, on the Notes or (ii) the date on which Notes are scheduled for
redemption.
(f) Transfer, registration and exchange shall be permitted and
executed as provided in this Section without any charge other than any stamp or
other taxes or governmental charges or insurance charges payable on transfers or
any expenses of delivery but subject to such reasonable regulations as the
Issuer and the Registrar may prescribe.
(g) Upon the transfer, exchange or replacement of Notes not bearing
the private placement legend set forth in the form of Note (the "Private
Placement Legend"), the Trustee shall deliver Notes that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Notes bearing
the Private Placement Legend, the Trustee shall deliver only Notes that bear the
Private Placement Legend unless the circumstances contemplated by Section
2.04(b)(i)(y) above exist.
(h) Any Note or Notes may be exchanged for a Note or Notes in other
authorized denominations, in an equal aggregate principal amount. Notes to be
exchanged shall be surrendered at an office or agency to be maintained by the
Issuer for such purpose as provided in Section 4.02, and the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor the
Note or Notes which the Noteholder making the exchange shall be entitled to
receive, bearing numbers not contemporaneously outstanding.
All Notes presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the Holder or his attorney duly authorized in writing.
All Notes issued upon any transfer or exchange of Notes shall be
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Notes surrendered upon such transfer
or exchange.
40
47
(i) The Issuer agrees to make available such information as is
required by Rule 144A(d)(iv) as in effect on the original issue date of the
Notes. Further, the Notes and related documentation may be amended or
supplemented from time to time in accordance with Section 8.01 (i) to modify the
restrictions on, and procedures for, resales and other transfers of the Notes to
reflect any change in applicable law or regulation (or the interpretation
thereof) or provide alternative procedures in compliance with applicable law and
practices relating to the resale or other transfer of restricted securities
generally and (ii) to accommodate the issuance, if any, of Notes in book-entry
form and matters related thereto (although no such amendment or supplement may
require that a Note outstanding at the time such amendment or supplement becomes
effective be placed in book-entry form). Each Holder of any Note shall be
deemed, by the acceptance of such Note, to have agreed to any such amendment or
supplement.
(j) For purposes of determining the last day on which the Issuer or
any Affiliate of the Issuer was the beneficial owner of a Note, the Registrar
and the Issuer shall rely on the representations as to "Affiliation with Issuer"
set forth on the Certificate or Certificates of Transfer delivered to it from
and after the date of issuance of such Note (or any predecessor Note) in
connection with transfers of such Note. The Registrar, the Issuer and all
Holders of Notes shall be entitled to rely without further investigation on any
certification by any transferor on the Certificate of Transfer. Unless a
transferor required to provide a Certificate of Transfer shall certify thereon
that it is or at some time during which it held such Note was an Affiliate of
the Issuer, such transferor shall be deemed to have represented that it is not
nor has it been at any time during which it held such Note an Affiliate of the
Issuer.
SECTION 2.05. Mutilated, Defaced, Destroyed, Lost and Stolen Notes.
In case any Note shall become mutilated or defaced or be apparently destroyed,
lost or stolen, the Issuer in its discretion may execute, and upon the written
request of any officer of the Issuer, the Trustee shall authenticate and
deliver, a new Note, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated or defaced Note, or in lieu of and
substitution for the Note so apparently destroyed, lost or stolen. In every case
the applicant for a substitute Note shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity as
may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, evidence to their
satisfaction of the
41
48
apparent destruction, loss or theft of such Note and of the ownership thereof.
Upon the issuance of any substitute Note, the Issuer 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. In case any Note which has
matured or has been called for redemption in full, shall become mutilated or
defaced or be apparently destroyed, lost or stolen, the Issuer may, instead of
issuing a substitute Note, with the Holder's consent in the case that the Note
is called for redemption, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Note), if the
applicant for such payment shall furnish to the Issuer and to the Trustee and
any agent of the Issuer or the Trustee such security or indemnity as any of
them may require to save each of them harmless from all risks, however remote.
and, in every case of apparent destruction, loss or theft, the applicant shall
also furnish to the Issuer and the Trustee and any agent of the Issuer or the
Trustee evidence to their satisfaction of the apparent destruction, loss or
theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this
Section by virtue of the fact that any Note is apparently destroyed, lost or
stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the apparently destroyed, lost or stolen Note shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Notes duly authenticated and
delivered hereunder. All Notes shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment or conversion of
mutilated, defaced, or apparently destroyed, lost or stolen Notes and shall
preclude any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 2.06. Persons Deemed Owners. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may treat the person in whose name any Note
is registered as the absolute owner of such Note for the purpose of receiving
payment of principal of, the Make-Whole Amount, if any, and (subject to the
provisions for payment of interest set forth in the form of Note) interest on
such Note and for all other
42
49
purposes whatsoever, whether or not such Note be overdue, and neither the
Issuer, the Trustee nor any agent of the Issuer or the Trustee shall be affected
by notice to the contrary to the extent permitted by applicable law.
SECTION 2.07. Cancellation of Notes; Destruction Thereof. All Notes
surrendered for payment, redemption, or registration of transfer or exchange, if
surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be
delivered to the Trustee for cancellation or, if surrendered to the Trustee,
shall be cancelled by it; and no Notes shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy cancelled Notes held by it and deliver a certificate of
destruction to the Issuer. If the Issuer shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
ARTICLE THREE
SATISFACTION AND DISCHARGE; DEPOSITED MONEYS
SECTION 3.01. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to any surviving rights
of transfer or exchange herein expressly provided for), and the Trustee, upon
Request of the Issuer at the expense of the Issuer, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Notes theretofore authenticated and delivered (other
thou Notes which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.04), have been
delivered to the Trustee for cancellation and 91 days (during which
no event referred to in Section 5.01(e) or (f) with respect to the
Issuer shall have occurred) have run from the date of delivery of
the last such Note for cancellation; or
(ii) all such Notes not theretofore delivered to the Trustee
for cancellation (1) have become due and payable, (2) will become
due and payable at their Stated Maturity within one year, (3) are to
be called for redemption within one year under
43
50
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuer, or (4) are deemed paid and discharged pursuant to Section
3.03, as applicable, and in the case of (1), (2) or (3) above, 91
days (during which no event referred to in Section 5.01(e) or (f)
with respect to the Issuer shall have occurred) have run from the
date on which the Issuer has deposited or caused to be deposited
with the Trustee or the Paying Agent, in trust for the purpose, an
amount sufficient to pay and discharge the entire indebtedness on
such Notes not theretofore delivered to the Trustee for
cancellation, for principal, the Make-Whole Amount, if any, and
interest accrued to the date of such deposit or to the Stated
Maturity or Redemption Date, as the case may be;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer 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 Issuer to the Trustee and any predecessor Trustee under
Section 6.06 and, if money shall have, been deposited with the Trustee pursuant
to subclause (ii) of clause (a) of this Section or if money or obligations
shall have been deposited with or received by the Trustee pursuant to Section
3.03, the obligations of the Trustee under Sections 3.02 and 6.06 shall survive.
SECTION 3.02. Application of Trust Money. Subject to Section 4.02,
all money deposited with the Trustee pursuant to Section 3.01, all money and
U.S. Government Obligations deposited with the Trustee pursuant to Section 3.03
or 4.14 and all money received by the Trustee in respect of U.S. Governmental
Obligations deposited with the Trustee pursuant to Section 3.03 shall be held in
trust and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through the Paying Agent as the
Trustee may determine, to the Holders of the Notes for whose payment such money
has been deposited with the Trustee, of all sums due and to become due thereon
for principal, the Make-Whole Amount, if any, and interest for whose payment
such money has been deposited with or received by the Trustee or to
44
51
make payments as contemplated by Section 3.03; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 3.03. Satisfaction, Discharge and Defeasance of Notes. The
Issuer shall be deemed to have paid and discharged the entire indebtedness on
all the Notes on the 91st day after the date of the deposit referred to in
subparagraph (d) hereof, and the provisions of this Indenture shall no longer be
in effect (and the Trustee, at the expense of the Issuer, shall, upon receipt of
a Request of the Issuer, execute proper instruments acknowledging the same),
except as to:
(a) the rights of Holders of Notes to receive, from the trust funds
described in subparagraph (d) of this Section 3.03, payment of the
principal of and each installment of or interest on the Notes on the
Stated Maturity of such principal or installment of principal or interest;
(b) the Issuer's obligations with respect to the Notes under Section
2.04, 2.05 and 4.02; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder and the duties of the Trustee under Section 3.02 and the duty of
the Trustee to authenticate Notes issued on registration of transfer or
exchange;
provided that, the following conditions shall have been satisfied:
(d) the Issuer shall have given the Trustee written notice that it
intends to exercise its right to defease the Notes under this Section 3.03
and deposited or caused to be deposited irrevocably with the Trustee as
trust funds in trust for the purpose of making the following payments,
specifically pledged as security for and dedicated solely to the benefit
of the Holders of the Notes, cash in U.S. dollars (or such other money or
currencies as shall then be legal tender in the United States) and/or U.S.
Government Obligations which through the payment of interest and principal
in respect thereof, in accordance with their terms, will provide (and
without reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in
writing delivered to the Trustee, to pay and discharge each installment of
45
52
principal of and any interest on the Notes on the dates such installments
of interest or principal are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which it is bound;
(f) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such date;
(g) the Issuer has delivered to the Trustee (1) an opinion of
counsel from Cravath, Swaine & ▇▇▇▇▇ or other nationally recognized
counsel or (2) there has been published by (or the Issuer has received
from) the Internal Revenue Service a ruling, in the case of either (1) or
(2), to the effect that Holders of the Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on the
same amount and, in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred;
(h) the Issuer has delivered to the Trustee an opinion of counsel
from Cravath, Swaine & ▇▇▇▇▇ or other nationally recognized counsel to the
effect that such deposit and the effects of such deposit set forth in the
preamble to this Section 3.03 (i) will not cause the Trustee or the trust
created pursuant to this Section 3.03 to constitute an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, and (ii) will not, following the expiration of the 91-day period
referred to in the preamble to this Section 3.03, constitute a
preferential transfer (with respect to "non-insider" transferees) under
Section 547(b) of the United States Bankruptcy Code; and
(i) the Issuer 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 defeasance contemplated by this
Section 3.03 have been complied with.
46
53
ARTICLE FOUR
COVENANTS OF THE ISSUER
AND THE TRUSTEE
SECTION 4.01. Payment of Principal and Interest. The Issuer will
duly and punctually pay the principal of, the Make-Whole Amount, if any, and
interest on the Notes, in accordance with the terms of the Notes and this
Indenture.
Payment of principal of and the Make-Whole Amount, if any, on Notes
will be made in accordance with the terms of the Notes against surrender of the
Notes at the Corporate Trust Office of the Paying Agent in the City of New York.
Payment of interest on the Notes will be made, in accordance with the terms of
the Notes, to the respective persons in whose name the Notes are registered at
the close of business on the Record Date prior to the relevant Interest Payment
Date.
The Issuer will on or before 3:00 P.M., the City of New York time,
on the day which is one Business Day next preceding the due date of the
principal of and the Make-Whole Amount, if any, or interest on any Notes, pay to
the Paying Agent in "next day" (New York Clearing House) funds a sum sufficient
to pay the principal, the Make-Whole Amount or interest, so becoming due, such
sum to be held in trust for the benefit of the Holders of such Notes.
SECTION 4.02. Maintenance of Office or Agency; Appointment of Paying
Agent. So long as any of the Notes remain Outstanding, the Issuer will maintain
in the City of New York the following: (a) an office or agency where the Notes
may be presented for payment, (b) an office or agency where the Notes may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) an office or agency where notices and demands to or upon the
Issuer in respect of the Notes or of this Indenture may be served. The Issuer
will give to the Trustee written notice of the location of any such office or
agency and of any change of location thereof. The Issuer hereby initially
designates the Corporate Trust Office of the Trustee as the office or agency for
each such purpose. In case the Issuer shall fail to maintain any such office or
agency or shall fail to give such notice of the location or of any change in the
location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office.
The Issuer hereby appoints Chemical Bank as Paying Agent (the
"Paying Agent"), for the payment of principal of,
47
54
the Make-Whole Amount, if any, and interest on the Notes on behalf of the
Issuer. The Issuer reserves the right at any time, and from time to time, to
vary or terminate the appointment of any Paying Agent, transfer agent or
Registrar or to appoint any additional or other Paying Agent or agencies or
transfer agent or agencies or Registrar.
Whenever the Issuer shall appoint a Paying Agent other than the
Trustee, it will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.02, that it will hold all sums held by it as such
agent for the payment of the principal of, the Make-Whole Amount, if any, or
interest on the Notes in trust for the benefit of the Holders of the Notes, that
it will give the Trustee notice of any failure by the Issuer to make any payment
of the principal of, or the Make-Whole Amount, if any, or interest on the Notes
when the same shall be due and payable and that, at any time during the
continuance of any such default, upon the written request of the Trustee, it
will forthwith pay to the Trustee all sums so held by it in trust.
Anything in this Section 4.02 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, cause to be paid to the
Trustee all sums held in trust by any Paying Agent hereunder as required by this
Section 4.02, such sums to be held by the Trustee upon the trust herein
contained. Any money deposited with the Trustee or any Paying Agent for the
payment of the principal of or the Make-Whole Amount, if any, or interest on
any Note and remaining unclaimed for two years after such principal, the
Make-Whole Amount or interest has become due and payable shall be paid to the
Issuer, and the Holder of such Note shall thereafter look only to the Issuer for
payment thereof and all liability, if any, of the Trustee or any Paying Agent
with respect to such deposited amounts shall thereupon cease.
SECTION 4.03. Existence of Issuer. The Issuer will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights and franchises; provided, however, that the Issuer shall not
be required to preserve the existence of the Issuer or any such right or
franchise if the Board of Trustees of the Issuer shall determine that the
failure to preserve such existence, right or franchise is not disadvantageous in
any material respect to the Holders of Notes and in the case of such right or
franchise, is no longer desirable in the conduct of the business of the Issuer.
48
55
SECTION 4.04. Information. The Issuer will deliver to the Trustee
and to each Holder of Notes upon the request of such Holder:
(a) within 90 days after the end of each fiscal year of the Issuer,
a consolidated balance sheet of the Issuer and its Consolidated
Subsidiaries as of the end of such fiscal year and the related
consolidated statements of cash flows, income and shareholders' equity for
such fiscal year, in each case prepared in accordance with generally
accepted accounting principles, setting forth in each case in comparative
form the figures for the previous fiscal year, and a report and opinion
thereon of independent public accountants of recognized national standing;
and
(b) within 60 days after the end of each of the first three fiscal
quarters, unaudited consolidated financial statements of the Issuer and
its Consolidated Subsidiaries for the portion of the Issuer's fiscal year
then ended, prepared in accordance with generally accepted accounting
principles, as provided to the Issuer's shareholders.
SECTION 4.05. Maintenance of Property; Insurance.
(a) The Issuer will keep, and will cause each Subsidiary to keep,
all material property useful and necessary in its business in good working order
and condition, ordinary wear and tear excepted.
(b) The Issuer wi11 maintain, and will cause each Subsidiary to
maintain, in full force and effect at all times with financially sound and
reputable insurance companies, insurance on all of its property in at least such
amounts and against at least such risks as are usually insured against in the
same general area by companies engaged in similar businesses.
SECTION 4.06. Trustee. The Issuer whenever necessary to avoid or
fill a vacancy in the office of Trustee, will appoint, in the manner provided in
Section 6.09, a Trustee, so that there shall at all times be a Trustee
hereunder.
SECTION 4.07. Compliance with Laws. The Issuer will comply, and,
will cause each Subsidiary to comply, in all material respects, with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authority, except where the necessity of compliance therewith is
contested in good faith or where the failure to
49
56
comply would not have a material adverse effect upon the Issuer and its
Consolidated Subsidiaries, taken as a whole.
SECTION 4.08. Limitations on Debt. The Issuer shall not, at any
time, permit:
(a) Consolidated Debt (excluding Excludable Non-Recourse and
Subsidiary Debt) to exceed 50% of Gross Assets, or
(b) Consolidated Secured Debt (excluding Excludable Non-Recourse and
Subsidiary Debt) to exceed 35% of Gross Assets.
SECTION 4.09. Minimum Net Worth. The Issuer shall not, at any time,
permit Consolidated Net Worth to be less than $2,000,000,000 (Two Billion
Dollars).
SECTION 4.10. Debt Service Coverage. The Issuer shall not permit
Cash Flow plus Consolidated Interest Expense (but only to the extent such
Consolidated Interest Expense shall have been deducted in computing Consolidated
Net Income) calculated at the end of any fiscal quarter, for the four fiscal
quarters then ended to be less than 150% of the sum of (x) Consolidated Interest
Expense for such four fiscal quarters plus (y) all payments of principal with
respect to Consolidated Debt payable during such four fiscal quarters (other
than optional prepayments and any other nonperiodic payments, including lump sum
or bullet payments).
SECTION 4.11. Annual Real Property Appraisal. Prior to February 28
of each year, the Issuer will (a) cause the fair market value of the equity of
the Issuer and its Subsidiaries in all interests in Real Property as of the
December 31 next preceding such February 28 to be appraised by the Appraiser in
conformity with and subject to the Code of Ethics and Standards of Professional
Conduct of the Appraisal Institute, (b) calculate as of such December 31 the
value of Gross Assets, (c) cause the Appraiser to review such calculation of
Gross Assets and (d) cause to be filed with the Trustee a report from the
Appraiser containing the Appraiser's opinion on the value of Gross Assets as of
such December 31 and its opinion on the reasonableness of the Issuer's
calculation of the value of Gross Assets as of such December 31 and stating that
the appraisal referred to in clause (a) above was made in conformity with and
subject to the Code of Ethics and Standards of Professional Conduct of the
Appraisal Institute.
SECTION 4.12. File Statement Annually with the Trustee. Within 120
days after the close of each fiscal
50
57
year, the Issuer will file with the Trustee an Officers' Certificate, stating
that in the course of the performance by the signers of their duties as officers
of the Issuer, they would normally obtain knowledge of any default by the Issuer
in the performance or fulfillment of any covenant, agreement or condition
contained in this Indenture, that they have made a review with a view to
determining whether there is any default under this Indenture, and stating
whether or not they have obtained knowledge of any such default, and, if so,
specifying each default of which the signers have knowledge and the nature
thereof.
At the time such Officers' Certificate is filed, the Issuer will
also file with the Trustee a letter or statement of the independent accountants
who shall have certified the consolidated financial statements of the Issuer for
its preceding fiscal year to the effect that, in making the examination
necessary for certification of such financial statements, nothing has come to
their attention to cause them to believe that the Issuer failed to comply with
the covenants in Sections 4.01, 4.08, 4.09 and 4.10 which failure remains
uncured at the date of such letter or statement, or, if they shall have obtained
knowledge of any such failure, specifying in such letter or statement the nature
thereof.
SECTION 4.13. Further Assurances. From time to time whenever
requested by the Trustee, the Issuer will execute and deliver such further
instruments and assurances and do such further acts as may be reasonably
necessary or proper to carry out more effectually the purposes of this Indenture
or to secure the rights and remedies hereunder of the Holders of the Notes.
SECTION 4.14. Defeasance of Certain Obligations. From and after the
91st day after the date the Issuer deposits funds with the Trustee as described
in paragraph (1) of this Section 4.14, the Issuer may omit to comply with any
term, provision or condition set forth in Sections 4.04, 4.05, 4.07, 4.08 to
4.11, inclusive, and Section 5.01(c) and (d) and (e) and (f) (but only insofar
as such paragraphs (e) and (f) relate to Subsidiaries of the Issuer), inclusive,
and Article Nine shall be deemed deleted, provided that the following conditions
shall have been satisfied:
(1) the Issuer shall have given the Trustee written notice that it
intends to exercise its right to defeasance under this Section 4.14 and
deposited or caused to be deposited irrevocably (except as provided in
Section 3.03) with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the
51
58
Notes, cash in U.S. dollars (or such other money or currencies as shall
then be legal tender in the United States) and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof, in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such
Trustee), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants in writing
delivered to the Trustee, to pay and discharge each installment of
principal of and any interest on the Notes on the dates such installments
of interest or principal are due;
(2) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which it is bound;
(3) no Event of Default or event which with notice or lapse of time
would become an Event of Default with respect to the Notes shall have
occurred and be continuing on the date of such deposit or during the
period ending on the 91st day after such deposit;
(4) the Issuer has delivered to the Trustee (a) an opinion of
counsel from Cravath, Swaine & ▇▇▇▇▇ or other nationally recognized
counsel or (b) there has been published by (or the Issuer has received
from) the Internal Revenue Service a ruling, in the case of either (a) or
(b), to the effect that Holders of the Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposit
and defeasance of certain obligations and will be subject to Federal
income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit and defeasance of
certain obligations had not occurred;
(5) the Issuer has delivered to the Trustee an opinion of counsel
from Cravath, Swaine & ▇▇▇▇▇ or other nationally recognized counsel to the
effect that such deposit and the effects of such deposit set forth in the
preamble of this Section 4.14 (i) will not cause the Trustee or the trust
created pursuant to this Section 4.14 to constitute an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, and (ii) will not, following the expiration of the 91-day period
referred to in the preamble to this Section 4.14, constitute a
preferential transfer (with respect to "non-insider"
52
59
transferees) under Section 547(b) of the United States Bankruptcy Code;
and
(6) the Issuer 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 defeasance contemplated by this
Section 4.14 have been complied with.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default Defined; Acceleration of Maturity;
Waiver of Default. The following events or conditions constitute Events of
Default hereunder (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order, rule or regulation of any administrative
body):
(a) default in the payment of any installment of interest upon any
Note when it becomes due and payable and continuance of such default for a
period of 10 Business Days; or
(b) default in the payment of principal of, or the Make-Whole
Amount, if any, on, any of the Notes when due, whether at maturity, upon
redemption or otherwise; or
(c) default in the performance, or breach, of any covenant or
agreement of the Issuer in this Indenture or the Notes (other than a
covenant or agreement a default in the performance of which or the breach
of which is elsewhere in this Section specifically dealt with or default
in the payment of principal, the Make-Whole Amount, if any, or interest),
and continuance of such default or breach for a period of 30 days after
there shall have been given to the Issuer by the Trustee, by registered or
certified mail, or to the Issuer and the Trustee, by registered or
certified mail, by the Holders of at least 25% in principal amount of the
Outstanding Notes, a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(d) acceleration of, or failure to pay at maturity, Debt (other than
Non-Recourse Debt) of the
53
60
Issuer or any Subsidiary in an aggregate principal amount in excess of
$10,000,000 which acceleration is not rescinded or annulled or which Debt
is not discharged, in either case, within 30 days after there shall have
been given to the Issuer by the Trustee, by registered or certified mail,
or to the Issuer and the Trustee, by registered or certified mail, by the
Holders of at least 25% in aggregate principal amount of the Outstanding
Notes, a written notice specifying such acceleration or failure to pay and
requiring the Issuer to remedy the same; or
(e) the entry of a decree or order for relief in respect of the
Issuer (or any Subsidiary that has outstanding Debt (other than
Non-Recourse Debt) with an aggregate principal amount in excess of
$10,000,000) by a court having jurisdiction in the premises in an
involuntary case under the United States Federal bankruptcy laws, as now
or hereafter constituted, or any other applicable United States Federal or
State bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator or other
similar official) of the Issuer (or any such Subsidiary) or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(f) the commencement by the Issuer (or any Subsidiary that has
outstanding Debt (other than Non-Recourse Debt) with an aggregate
principal amount in excess of $10,000,000) of a voluntary case under the
United States Federal bankruptcy laws, as now or hereafter constituted, or
any other applicable United States Federal or State bankruptcy, insolvency
or other similar law, or the consent by it (or any such Subsidiary) to the
entry of an order for relief in an involuntary case under any such law as
to the appointment of a receiver, liquidator, assignee, custodian,
trustee, seqestrator (or other similar official) of the Issuer (or any
such Subsidiary) or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Issuer (or any such
Subsidiary) in furtherance of any such action.
If an Event of Default set forth in Section 5.01(a) or (b) occurs
and is continuing, then and in every such case (i) the Trustee by a notice in
writing to the
54
61
Issuer may declare all the Notes to be due and payable immediately or (ii) the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Notes may by written notice to the Issuer and the Trustee declare the Notes to
be due and payable immediately, and upon any such declaration the Notes shall be
immediately due and payable at the principal amount thereof, plus accrued
interest to the date the Notes are paid, plus the Make-Whole Amount, if any. If
an Event of Default set forth in Section 5.01(c) or (d) occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
66-2/3% in aggregate principal amount of the Outstanding Notes may declare all
the Notes to be due and payable immediately by a notice in writing to the Issuer
(and to the Trustee if given by Holders) and upon such declaration the Notes
shall be immediately due and payable at the principal amount plus accrued
interest to the date the Notes are paid, plus the Make-Whole Amount, if any. If
an Event of Default set forth in Section 5.01(e) or (f) occurs, the Notes shall
automatically become due and payable at the principal amount thereof plus
accrued interest to the date the Notes are paid without any action or
declaration upon the part of the Trustee or Noteholders.
The preceding paragraph, however, is subject to the condition that
if, at any time after the principal of the Notes shall have so become due and
payable, before any judgment or decree for the payment of moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Notes and the expenses of the Trustee, and any and all
defaults under this Indenture, other than the non-payment of Notes which shall
have become due by such declaration, shall have been remedied, then in every
such case the Holders of a majority in aggregate principal amount of the Notes
then outstanding (or such lesser amount as may have acted at a meeting of
Noteholders pursuant to Article Ten hereof), by written notice to the Issuer and
the Trustee, may waive all defaults and rescind and annul such declaration and
its consequences; but no waiver and rescission and annulment shall extend to or
shall affect any default in the payment of the principal of or interest on any
of the Notes or any subsequent default or shall impair any right consequent
thereon.
SECTION 5.02. Collection of Debt and Suits for Enforcement by
Trustee. The Issuer covenants that if:
(i) in case default is made in the payment of any installment of
interest on any Note when such interest
55
62
becomes due and payable and such default continues for a period of 10
Business Days, or
(ii) default is made in the payment of the principal of and the
Make-Whole Amount, if any, on any Note at the Maturity thereof,
then the Issuer will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Notes, the principal amount thereof, plus the Make-Whole
Amount, if any, with interest upon the overdue principal and the Make-Whole
Amount and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest, at the rate borne by the
Notes, and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection and all amounts payable to the
Trustee and any predecessor Trustee under Section 6.06.
If the Issuer fails to pay any amounts required under this Section
5.02 forthwith upon such demand, the Trustee, in its own name and as trustee of
an express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Issuer or any other obligor upon
the Notes and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Issuer or any other obligor upon the
Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders of Notes by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein or to enforce any other proper remedy.
SECTION 5.03. 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 Issuer or any other obligor upon the Notes or the
property of the Issuer or such other obligor, the Trustee (irrespective of
whether the principal of the Notes 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 Issuer for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
56
63
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Notes and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee and any predecessor Trustee (including, in the case
of. any such proceeding relating to the Issuer, any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel) and of the
Holders of Notes allowed in such judicial proceeding,
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same, and
(c) unless prohibited by law or applicable regulations, to vote on
behalf of Holders of Notes in any election of a trustee in bankruptcy or
other person performing similar functions;
and any receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder of
Notes 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 of Notes,
to pay, in the case of any such proceeding relating to the Issuer or to the
Trustee any amount due to it or any predecessor Trustee under Section 6.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder of Notes,
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder of Notes in any such proceeding, except,
as aforesaid, for the election of a trustee in bankruptcy or other person
performing similar functions.
SECTION 5.04. Trustee May Enforce Claims Without Possession of
Notes. All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee (to the extent permitted by applicable
law) without the possession of any of the Notes 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 be for the ratable benefit of the Holders of the
Notes in respect of which judgment has been recovered, subject to the provisions
of this Indenture.
57
64
SECTION 5.05. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal, the Make-Whole Amount, if any, or interest, upon
presentation of the Notes, 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 or any
predecessor Trustee under Section 6.06;
SECOND: In case the principal of the Outstanding Notes shall not
have become due and be unpaid, to the payment of interest on the Notes, in
the order of the maturity of the installments of such interest, with
interest upon the overdue installments of interest (so far as permitted by
law and to the extent that such interest has been collected by the
Trustee) at the rate of interest borne by the Notes, such payments to be
made ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of or the Make-Whole Amount, if any, on
the Outstanding Notes shall have become due, by declaration or otherwise,
to the payment of the whole amount then owing and unpaid upon the Notes
for principal, the Make-Whole Amount, if any, and interest, with interest
on the overdue principal and installments of interest (so far as permitted
by law and to the extent that such interest has been collected by the
Trustee) at the rate of interest borne by the Notes; and in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Notes, then to the payment of such principal, the
Make-Whole Amount, if any, and interest, without preference or priority of
principal or the Make-Whole Amount, if any, over interest, or of interest
over principal, or the Make-Whole Amount, if any, or of any installment of
interest over any other installment of interest, ratably to the aggregate
of such principal, the Make-Whole Amount, if any, and accrued and unpaid
interest; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
SECTION 5.06. Limitation on Suits by Noteholders. No Holder of any
Note shall have any right to institute any proceeding, judicial or otherwise,
with respect to this
58
65
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 66-2/3% in aggregate principal
amount of the Outstanding Notes shall have made written request to the
Trustee to institute proceedings in respect of such Events of Default set
forth in Sections 5.01(c) or (d);
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority (or 66-2/3% where expressly provided herein) in principal amount
of the Outstanding Notes;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of Notes, or to obtain or seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders of
Notes.
SECTION 5.07. Unconditional Rights of Holders to Receive Principal
and Interest. Notwithstanding any other provision in this Indenture (but subject
to the following sentence), the Holder of any Note shall have the right, which
is absolute and unconditional, to receive payment of the principal of, and the
Make-Whole Amount, if any, and interest on such Note on the respective dates
such payments are due in accordance with the terms of the Notes and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder. Notwithstanding any other provision
in this Indenture or any Note, the Issuer may deduct or withhold taxes or other
governmental charges from or in respect of any payment required to be made under
this Indenture or any Note to the extent required by applicable law.
59
66
SECTION 5.08. Restoration of Rights and Remedies. If the Trustee or
any Holder of Notes has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Issuer, the Trustee and the Holders of Notes
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Trustee and the Holders of Notes shall continue as though no
such proceeding had been instituted.
SECTION 5.09. Rights and Remedies Cumulative. No right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Notes 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 5.10. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders of Notes may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Notes, as the case may be.
SECTION 5.11. Control by Holders. Except as otherwise provided
herein or in the Notes, the Holders of a majority in aggregate principal amount
of the Outstanding Notes 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, provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture.
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
60
67
(3) the Trustee shall have the right to decline to follow any such
action if the Trustee in good faith by its board of directors or executive
committee or a trust committee of directors and/or Responsible Officers
shall determine the actions or proceedings so directed would involve the
Trustee in personal liability or would be unduly prejudicial to Holders
not joining in such direction.
SECTION 5.12. Waiver of Past Defaults. The Holders of not less than
66-2/3% (or such lesser amount as may have acted at a meeting of Noteholders
pursuant to Article Ten hereof) in aggregate principal amount of the Outstanding
Notes may on behalf of the Holders of all the Notes waive any past default
hereunder and its consequences, except a default in the payment of the principal
of, or the Make-Whole Amount, if any, or interest on any Note.
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 thereto.
SECTION 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court of competent jurisdiction may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken or omitted by
it as Trustee, the filing by any party litigant in such suit of 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 against the Issuer by the
Trustee, by any Holder of Notes, or group of Holders of Notes, holding in the
aggregate more than 10% in principal amount of the Outstanding Notes, or by any
Holder of any Note for the enforcement of the payment of the principal of, the
Make-Whole Amount, if any, or interest on such Note on or after the respective
dates such payments are due in accordance with the terms of the Notes.
SECTION 5.14. Notice of Default to Holders of Notes. The Trustee
shall at the Issuer's expense, within 90 days after any Event of Default becomes
known to a Responsible Officer of it, give the Holders of Notes notice
61
68
thereof, unless such default shall have been cured or waived.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of the Trustee; During
Default; Prior to Default. The Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture. In case an Event of Default has
occurred and is continuing, the Trustee shall exercise such of 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.
No provision of this Indenture shall be construed to relieve the
Trustee for liability for its own negligent action, its own negligent failure to
act, or its own willful misconduct, except that
(i) prior to the occurrence of an Event of Default and after the
curing or waiving of all such Events of Default which may have occurred:
the duties and obligations of the Trustee shall be determined solely by
the express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; this
Subsection shall not be construed to limit the effect of this Section
6.01;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Notes (or 66-2/3% or 25% in principal amount where expressly
provided herein) relating to the
62
69
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; and
(iv) none of the provisions of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
SECTION 6.02. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or
document reasonably believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed) and
any resolution of the Board of Trustees of the Issuer shall be
sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any advice or Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
63
70
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, or bond, debenture or other paper or
document, unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Notes then
Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it
in the making of the investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Issuer
or, if paid by the Trustee or any predecessor Trustee, shall be repaid by
the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 6.03. Trustee Not Responsible for Recitals or Issuance of
Notes. The recitals contained herein and in the Notes (except the Trustee's
certificate of authentication) shall be taken as the statements of the Issuer,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representation as to the validity or sufficiency of this Indenture or
of the Notes; provided that the Trustee shall not be relieved of its duty to
authenticate Notes as authorized by this Indenture. The Trustee shall not be
accountable for the use or application by the Issuer of Notes or the proceeds
thereof.
SECTION 6.04. Trustee and Agents May Hold Notes. The Trustee, the
Paying Agent or any other agent of the Issuer, in its individual or any other
capacity, may become the owner or pledgee of Notes, collections, proceeds, and
64
71
may otherwise deal with the Issuer and may receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
Trustee, Paying Agent or such other agent.
SECTION 6.05. Moneys Meld in Trust. Money held by the Trustee or the
Paying Agent in trust hereunder need not be segregated from other funds, except
to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Issuer.
SECTION 6.06. Compensation and Indemnification of Trustee and Its
Prior Claim. The Issuer covenants and agrees:
(a) to pay to the Trustee from time to time such compensation as
shall from time to time be agreed upon in writing by the Trustee and the
Issuer or, if there be no agreement, reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) to reimburse each of the Trustee and any predecessor Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee or any predecessor Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the reasonable expenses and disbursements of its agents
and counsel), except to the extent any such expense, disbursement or
advance may be attributable to its negligence or bad faith; and
(c) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of
this trust or the performance of its duties hereunder, including the
reasonable costs and expenses of defending itself against any claim of
liability or investigating any claim of liability in the premises, except
to the, extent any such loss, liability or expense may be attributable to
negligence or bad faith on its own part.
To ensure the performance of the obligations of the Trustee under
this Section, the Trustee shall have a claim prior to the Notes upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of the principal of, or the Make-Whole Amount, if any,
or interest on any Notes. The rights of the
65
72
Trustee under this Section 6.06 shall survive the satisfaction and discharge of
this Indenture.
SECTION 6.07. Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 6.01 and 6.02, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein prescribed) may, in the absence of negligence or bad faith on the part of
the Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the good faith thereof.
SECTION 6.08. Corporate Trustee Required; Eligibility. The Trustee
shall at all times be a corporation organized and doing business under the laws
of the United States of America or any State thereof, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $200,000,000, subject to supervision or examination by Federal or State
authority and having its principal office in the United States. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published.
SECTION 6.09. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.10.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer and by mailing notice thereof by first-class mail to
Holders of Notes at their last addresses as they shall appear on the Note
Register. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 60 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
66
73
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the Outstanding Notes, delivered to the
Trustee and to the Issuer.
(d) If at any time:
(i) the Trustee shall cease to be eligible under Section 6.08 and
shall fail to resign after written request therefor by the Issuer or by
any Holder of a Note who has been a Holder in due course of a Note for at
least six months, or
(ii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuer by a Board Resolution may remove the
Trustee, or (B) subject to Section 5.13. any Holder of a Note who has been a
Holder in due course of a Note for at least six months may, on behalf of himself
and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuer, by an Issuer Order, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes delivered to
the Issuer and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Issuer. If no successor
Trustee shall have been so appointed by the Issuer or by the Holders of Notes or
pursuant to Section 6.09(b) and shall have accepted appointment in the manner
hereinafter provided in Section 6.10, any Holder of a Note who has been a Holder
in due course of a Note for at least six months may, subject to Section 5.13, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
67
74
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee in the manner
set forth in paragraph 8 on the Form of Reverse of Note. The notice shall
include the name of the successor Trustee and the address of its Corporate Trust
Office.
(g) The rights of a Trustee pursuant to Section 6.06 shall survive
its resignation or removal and the appointment of successor Trustees hereunder.
SECTION 6.10. Acceptance of Appointment by Successor. Any successor
Trustee appointed as provided in Section 6.09 shall execute, acknowledge and
deliver to the Issuer and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Issuer or the successor
Trustee, such retiring Trustee shall, upon payment to it of all fees, expenses
and other amounts owing to it hereunder, execute and deliver an instrument
transferring to such, successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 6.06. Upon request of
any such successor Trustee, the Issuer shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be eligible and qualified under
this Article.
SECTION 6.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided that
such corporation shall be otherwise eligible and qualified under Section 6.08,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto.
In case at any time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any
68
75
of the Notes have been authenticated, but not delivered, by the Trustee then in
office, any successor, by merger, conversion or consolidation or by succeeding
to all or substantially all the corporate trust business of the Trustee, to such
authenticating Trustee may adopt such authentication and deliver the Notes so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes; provided, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Notes in the name
of any predecessor shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE SEVEN
CONSOLIDATION, MERGER, SALE OF ASSETS
SECTION 7.01. Issuer May Consolidate. etc., on Certain Terms. The
Issuer covenants that it will not merge or consolidate with any other Person or
sell or convey (including by way of lease) all or substantially all of its
assets to any Person (other than the sale, transfer or conveyance (including by
way of lease) of all or substantially all of the Issuer's assets in a single
transaction or a series of transactions to one or more wholly-owned
Subsidiaries), unless (i) either (A) the Issuer shall be the continuing entity
or (B) the successor entity or the Person which acquires by sale or conveyance
all or substantially all the assets of the Issuer (if other than the Issuer)
shall (1) expressly assume the due and punctual payment of the principal of, the
Make-Whole Amount, if any, and interest on all the Notes, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture and the Notes to be performed or
observed by the Issuer, by supplemental indenture satisfactory to the Trustee,
executed and delivered to the Trustee by such Person, and (2) if such Person is
not organized under the laws of the United States of America or any State
thereof, agree in such supplemental indenture that any amount to be paid by such
Person to Holders of the Notes shall be paid without deduction or withholding
for any taxes, levies, imposts or charges whatsoever imposed by or for the
account of the country in which any such Person is organized or any political
subdivision or taxing authority thereof or therein, or if deduction or
withholding of any such taxes, levies, imposts or charges shall at any time be
required by such country as aforesaid, or any of its political subdivisions or
taxing authorities, such Person will pay any such additional amount in respect
of principal, Make-Whole Amount, if any, and
69
76
interest as may be necessary in order that the net amounts paid to the Holders
of the Notes or the Trustee, as the case may be, after such deduction or
withholding, shall equal the respective amounts of principal, Make-Whole Amount,
if any, and interest as specified in the Notes to which such Holders or the
Trustee are entitled, and (ii) the Issuer or such successor Person or acquiring
Person shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or
condition.
SECTION 7.02. Successor Issuer Substituted. In the case of any such
consolidation, merger, sale or conveyance, and following such an assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Issuer, with the same effect as if it had been named herein. Such
successor entity may cause to be signed, and may issue either in its own name or
in the name of the Issuer prior to such succession, any or all of the Notes
issuable hereunder, which theretofore shall not have been signed by the Issuer
and delivered to the Trustee; and, upon the order of such successor entity
instead of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Notes which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication and any Notes which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Notes so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Notes theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Notes had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to e issued as maybe appropriate.
In the event of any such sale or conveyance (other than a conveyance
by way of lease) the Issuer or any successor entity which shall theretofore have
become such in the manner described in this Article shall be. discharged from
all obligations and covenants under this Indenture and the Notes and may be
liquidated and dissolved.
SECTION 7.03. Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Section 6.01 and 6.02, may rely on an Opinion of Counsel and
an Officers' Certificate, as conclusive evidence that any such
70
77
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders.
Without the consent of the Holders of any Notes, the Issuer, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, for any of the following
purposes:
(a) to evidence the assumption by any successor entity to the Issuer
of the covenants of the Issuer herein and in the Notes contained; or
(b) to add to the covenants of the Issuer, for the benefit of the
Holders of the Notes, or to surrender any right or power herein conferred
upon the Issuer; or
(c) to modify the restrictions on, and procedures for, resales and
other transfers of the Notes to reflect any change in applicable law or
regulation (or the interpretation thereof) or provide alternative
procedures in compliance with applicable law and practices relating to the
resale or other transfer of restricted securities generally; or
(d) to accommodate the issuance, if any, of Notes in book-entry form
and matters related thereto (although no such amendment or supplement may
require that a Note Outstanding at the time such amendment or supplement
becomes effective be placed in book-entry form); or
(e) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, to make
any provisions with respect to matters or questions arising under this
Indenture, or to make any other changes herein that shall not materially
adversely affect the interests of the Holders of the Notes.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations
71
78
which may be therein contained and to accept the conveyance. transfer,
assignment, mortgage or pledge of any property thereunder, but the Trustee shall
not be obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the Notes
at the time Outstanding notwithstanding any of the provisions of Section 8.02.
SECTION 8.02. Supplemental Indentures With Consent of Holders:
Waiver of Future Compliance. With the consent of the Holders of 66-2/3% (or such
lesser amount as may have acted at a meeting of Noteholders pursuant to Article
Ten hereof) in aggregate principal amount of the Outstanding Notes, by Act of
said Holders delivered to the Issuer and the Trustee, the Issuer, when
authorized by Board Resolutions, and the Trustee may enter into one or more
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of the Notes under this
Indenture or to waive future compliance with the Indenture or the provisions of
the Notes; provided, however, that no such supplemental indenture or waiver
shall, without the consent of the Holder of each Outstanding Note affected
thereby,
(a) change the Stated Maturity of the principal of, or the due date
for any installment of interest on, any Note, or reduce the principal
amount thereof or the Make-Whole Amount, if any, or the interest thereon
or any amount payable upon redemption or acceleration thereof, or
(b) change the coin or currency in which any Note or the interest
thereon is payable, or
(c) impair the right to institute suit for the enforcement of any
such payment on or with respect to any Note, or
(d) reduce the above-stated percentage in principal amount of the
Outstanding Notes, the consent of whose Holders is required to modify or
amend the Indenture or the provisions of any Note, or
(e) modify any of the provisions of this Section or Section 5.12,
except to increase any of the
72
79
percentages set forth herein or therein or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Note affected thereby, or
(f) reduce the quorum requirements or the percentage of votes
required for the adoption of any action at a meeting of Noteholders.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of the Notes, or which modifies the rights of Noteholders, with
respect to such covenant, or provision, shall be deemed not to affect the rights
under this Indenture of the Noteholders.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Trustees certified by the secretary or an assistant
secretary of the Issuer authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Noteholders as aforesaid and other documents, if any, required by Section 8.01,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall mail a notice thereof to the Holders of then Outstanding Notes by
first-class mail to such Holders at their addresses as they shall appear on the
Note Register. Any failure of the Issuer to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such supplemental indenture.
SECTION 8.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trust created by this
Indenture, the Trustee shall be entitled to
73
80
receive, and (subject to Sections 6.01 and 6.02) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties, obligations or immunities under
this Indenture or otherwise.
SECTION 8.04. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be and
shall be deemed modified in accordance therewith and the respective rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Issuer and the Holders of Notes affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all other terms and conditions of any such supplemental
indenture shall form a part of this Indenture for all purposes.
SECTION 8.05. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Issuer shall so determine, new Notes so modified
as to conform, in the opinion of the Issuer and the Trustee, to any such
supplemental indenture may be prepared and executed by the Issuer and such Notes
shall be authenticated and delivered by the Trustee in exchange for Outstanding
Notes.
ARTICLE NINE
REDEMPTION OF NOTES
SECTION 9.01. Optional Redemption. The Issuer at its option may, at
any time, redeem all, or from time to time any part, of the Notes upon payment
of the principal amount of the Notes, plus accrued interest to the date of
redemption, plus the Make-Whole Amount, if any (the "Redemption Price"). If less
than all the Notes are to be redeemed at the option of the Issuer, the Issuer
will deliver to the Trustee at least 45 days prior to the Redemption Date (or
such shorter period as the Trustee may accept) an Officers' Certificate stating
the aggregate principal amount of Notes to be redeemed.
74
81
If less than all the Notes are to be redeemed, the Trustee shall
select, in such manner as it shall deem appropriate and fair, Notes to be
redeemed in whole or in part. Notes may be redeemed in part in multiples equal
to the minimum authorized denomination for Notes. Unless the Trustee has been
requested to notify Holders of redemption pursuant to the last paragraph of
Section 9.02, the Trustee shall promptly (but in no event after the later of (a)
the date that is ten days after the date of receipt by the Trustee of the
Officers' Certificate referred to in the first paragraph of this Section 9.01
and (b) the date that is five days before the date identified by the Issuer in
such. Officers' Certificate as the date on which the Issuer intends to give
notice of redemption) notify the Issuer in writing of the Notes selected for
redemption and, in the case of any Notes selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Notes, in the case of any Note redeemed or to be redeemed only in part,
relates to the portion of the principal amount of such Note which has been or is
to be redeemed.
SECTION 9.02. Notice of Redemption. Notice of redemption to the
Holders of Notes to be redeemed as a whole or in part at the option of the
Issuer shall be given by first-class mail, postage prepaid, at least 30 days and
not more than 60 days prior to the date of redemption (the "Redemption Date") at
their last addresses as they shall appear upon the Note Register. Any notice
which is mailed in the manner herein provided shall be conclusively presumed to
have been duly given, whether or not the Holder receives the notice. Failure to
give notice by mail, or any defect in the notice to the Holder of an Note as a
whole or in part, shall not affect the validity of the proceedings for the
redemption of any other Note.
The notice of redemption to each such Holder shall specify the
principal amount of each Note held by such Holder to be redeemed, the date fixed
for redemption, the Redemption Price (or the method of calculating thereof in
the case of the Make-Whole Amount component, if any, of the Redemption Price),
the place or places of payment and that payment will 1e made upon presentation
and surrender of such Notes. In the case of the redemption of Notes that are to
be redeemed in part only, the notice of redemption shall state the portion of
the principal amount thereof to be redeemed and shall state that on and after
the Redemption Date, upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion thereof will be issued.
75
82
The notice of redemption of Notes at the option of the Issuer shall
be given by the Issuer or, at the Issuer's request, by the Trustee in the name
and at the expense of the Issuer.
Prior to sending to the Holder of any Note any notice of redemption
of such Note at a Redemption Price which may include a Make-Whole Amount in
accordance with the foregoing provisions, the Issuer shall compute the
Make-Whole Amount, if any, with respect thereto in accordance with the foregoing
provisions, and shall have delivered to the Trustee a certificate executed by an
officer of the Issuer having responsibility for the calculations of Make-Whole
Amounts and setting forth the applicable Make-Whole Amount, if any, and showing
in reasonable detail the calculations thereof and the facts upon which such
calculations are based.
SECTION 9.03. Deposit of Redemption Price. Prior to 3:00 p.m., New
York City time, on the day which is one Business Day next preceding the
Redemption Date, the Issuer shall deposit with the Paying Agent in "next day"
(New York Clearing House) funds an amount of money sufficient to pay on the
Redemption Date the Redemption Price of all the Notes so called for redemption.
SECTION 9.04. Payment of Notes Called for Redemption. If notice of
redemption has been given as aforesaid, the Notes shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified, and on and
after such date (unless the Issuer shall default in the payment of the
Redemption Price) such Notes shall cease to bear interest.
If the Issuer defaults on the Redemption Date in the payment of the
Redemption Price such Notes shall, until paid, bear interest from the Redemption
Date at the rate borne by the Notes.
76
83
ARTICLE TEN
MEETINGS OF NOTEHOLDERS
SECTION 10.01. Notice; Quorum; Actions Taken.
(a) The Issuer may at any time call a meeting of the Noteholders,
such meeting to be held at such time and at such place as the Issuer shall
determine, for the purposes provided in Section 8.02 hereof, or for the purpose
of taking action with respect to any Event of Default under Article Five hereof.
Notice of any meeting of Noteholders, setting forth the time and place of such
meeting, in general terms the action proposed to be taken at such meeting and
the record date for determining Holders entitled to take action at such meeting,
shall be mailed to the registered address of such Holders not less than 20 nor
more than 180 days prior to the date fixed for such meeting. To be entitled to
vote at any meeting of Noteholders, a person must be (i) a Holder of one or more
Notes on such record date or (ii) a person appointed by an instrument in writing
as proxy by the Holder of one or more Notes on. such record date. The only
persons ho shall be entitled to be present or to speak at any meeting of
Noteholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Issuer or the Trustee and their
respective counsel.
(b) Persons entitled to vote a majority in principal amount of the
Notes at the time Outstanding shall constitute a quorum for the purpose of any
such meeting. No business shall be transacted in the absence of a quorum, unless
a quorum is present when the meeting is called to order. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, a meeting
which has been called by the Issuer or the Trustee shall be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
shall be further adjourned for a period of not less than 10 additional days as
determined by the chairman of the meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in paragraph (a) of this Section
10.01. Subject to the foregoing, at the reconvening of any meeting further
adjourned for lack of a quorum, the persons entitled to vote 25% in principal
amount of the Notes at the time Outstanding. shall constitute a quorum for the
taking of any action set forth in the notice of the original meeting. Notice of
the reconvening of an adjourned meeting shall state expressly the percentage of
the aggregate principal
77
84
amount of the Outstanding Notes which shall constitute a quorum.
(c) At a meeting or an adjourned meeting duly convened and at which
a quorum is present as aforesaid, any resolution for any purpose provided in
Article Eight hereof or for the purpose of taking any action with respect to any
Event of Default under Article Five hereof shall be effectively passed and
decided if passed and decided by the persons entitled to vote the lesser of (i)
a majority in principal amount of Notes then Outstanding and (ii) 75% in
principal amount of the Notes represented and voting at the meeting. Any
Noteholder who has executed an instrument in writing appointing a person as
proxy shall be deemed to be present for the purpose of determining a quorum and
be deemed to have voted, provided that such Noteholder shall be considered as
present or voting only with respect to the matters covered by such instrument in
writing (which may include authorization to vote on any other matters as may
come before the meeting). Any resolution passed or decision taken at any
meeting of Noteholders duly held in accordance with this Section shall be
binding on all the Noteholders whether or not present or represented at the
meeting.
(d) The Issuer shall appoint a temporary chairman of the meeting. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of Persons entitled to vote a majority in principal amount of the Notes
represented at the meeting. At any meeting each Noteholder or proxy shall be
entitled to one vote for each $250,000 principal amount of Notes as to which he
is a Noteholder or proxy; provided, however that no vote shall be cast or
counted at any meeting in respect of any Note challenged as not Outstanding and
ruled by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote except as a Noteholder or proxy. Any meeting
of Noteholders duly called at which a quorum is present may be adjourned from
time to time, and the meeting may be held as so adjourned without further
notice.
(e) The vote upon any resolution submitted to any meeting of
Noteholders shall be by written ballot on which shall be subscribed the
signatures of the Noteholders or proxies and on which shall be inscribed an
identifying number or numbers or to which shall be attached a list of
identifying numbers of the Notes entitled to be voted by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each
78
85
meeting of Noteholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the acts setting forth a copy of the notice of the meeting
and showing that said notice was published as provided above. The record shall
be signed and verified by the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Issuer and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the, matters therein stated.
* * * * *
This instrument may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
79
86
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective seals to be hereunto affixed and
attested, all as of the day and year first above written.
CORPORATE PROPERTY INVESTORS
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Title: Vice President and
General Counsel
[SEAL]
Attest:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Title: Vice President, Secretary
and Assistant General Counsel
CHEMICAL BANK
By:
---------------------------------
Title:
(SEAL)
Attest:
---------------------------------
Title:
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
: ss. :
COUNTY OF NEW YORK )
On the 25th day of March, 1996, before me personally came ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
to me known, who, being by me duly sworn, did depose and say that he resides at
New York, NY; that he is the Vice President and General Counsel of CORPORATE
PROPERTY INVESTORS, one of the parties described in and which executed the above
instrument; that he knows the seal of said Trust; that one of the seals affixed
to said instrument is such seal; that it was so affixed pursuant to authority
of the board of trustees of said Trust; and that he signed his name thereto
pursuant to like authority.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Notary Public
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Notary Public, State of New York
No. 4811157
Qualified In Nassau County
Commission Expires March 30, 1998
88
STATE OF NEW YORK )
: ss. :
COUNTY OF NEW YORK )
On the 22nd day of March, 1996, before me personally came ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ to me known, who, being by me duly sworn, did depose and say that she
resides at New York, NY; that she is a [Vice President] of CHEMICAL BANK, one of
the parties described in and which executed the above instrument; that she knows
the corporate seal of said banking corporation; that one of the seals affixed to
said instrument is such corporate seal; that it was so affixed pursuant to
authority of the board of directors of said banking corporation; and that she
signed her name thereto pursuant to like authority.
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Notary Public
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public,
State of New York
No. 01DE5013759
Qualified in Kings County
Certificate Filed New York county
Commission Expires July 15, 1997
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective seals to be hereunto affixed and
attested, all as of the day and year first above written.
CORPORATE PROPERTY INVESTORS
By:
--------------------------------------
Title:
[SEAL]
Attest:
--------------------------------------
Title:
CHEMICAL BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: VICE PRESIDENT
[SEAL]
Attest:
/s/ [ILLEGIBLE]
--------------------------------------
Title: SENIOR TRUST OFFICER