Exhibit 4.11
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CABOT INDUSTRIAL PROPERTIES, L.P.,
Issuer
AND
CABOT INDUSTRIAL TRUST,
Guarantor
TO
THE BANK OF NEW YORK,
Trustee
INDENTURE
Dated as of _____ __, 1999
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Senior Debt Securities
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..................... 1
SECTION 101. Definitions................................................ 1
Act.................................................................. 2
Additional Amounts................................................... 2
Affiliate............................................................ 2
Authenticating Agent................................................. 2
Authorized Newspaper................................................. 2
Bankruptcy Law....................................................... 2
Bearer Security...................................................... 2
Board of Trustees.................................................... 3
Board Resolution..................................................... 3
Business Day......................................................... 3
CEDEL................................................................ 3
Commission........................................................... 3
Common Depository.................................................... 3
Company.............................................................. 3
Company Certificate.................................................. 3
Company Request and Company Order.................................... 3
Conversion Event..................................................... 3
Corporate Trust Office............................................... 4
corporation.......................................................... 4
coupon............................................................... 4
covenant defeasance.................................................. 4
Custodian............................................................ 4
Defaulted Interest................................................... 4
defeasance........................................................... 4
Dollar or $.......................................................... 4
DTC.................................................................. 4
Euro................................................................. 4
Euroclear............................................................ 4
Event of Default..................................................... 4
Exchange Act......................................................... 4
Exchange Date........................................................ 4
Financial Statements................................................. 4
Foreign Currency..................................................... 4
GAAP................................................................. 5
Government Obligations............................................... 5
Guarantee............................................................ 5
Guaranteed Securities................................................ 5
Holder............................................................... 5
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Indenture............................................................ 5
Indexed Security..................................................... 6
interest............................................................. 6
Interest Payment Date................................................ 6
Make-Whole Amount.................................................... 6
mandatory sinking fund payment....................................... 6
Maturity............................................................. 6
Notice of Default.................................................... 6
Operating Partnership................................................ 6
Operating Partnership Certificate.................................... 6
Operating Partnership Request or Operating Partnership Order......... 7
Opinion of Counsel................................................... 7
optional sinking fund payment........................................ 7
Original Issue Discount Security..................................... 7
Outstanding.......................................................... 7
Paying Agent......................................................... 8
Person............................................................... 8
Place of Payment..................................................... 8
Predecessor Security................................................. 9
Redemption Date...................................................... 9
Redemption Price..................................................... 9
Registered Security.................................................. 9
Regular Record Date.................................................. 9
Repayment Date....................................................... 9
Repayment Price...................................................... 9
Required Filing Dates................................................ 9
Responsible Officer.................................................. 9
Securities Act....................................................... 9
Security............................................................. 9
Security Register and Security Registrar............................. 10
Significant Subsidiary............................................... 10
Special Record Date.................................................. 10
Stated Maturity...................................................... 10
Subsidiary........................................................... 10
Trust Indenture Act.................................................. 10
Trustee.............................................................. ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇........................................................ ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ person................................................. 11
Yield to Maturity.................................................... 11
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SECTION 102. Compliance Certificates and Opinions..................... 11
SECTION 103. Form of Documents Delivered to Trustee................... 11
SECTION 104. Acts of Holders.......................................... 12
SECTION 105. Notices to Trustee, Operating Partnership and Company.... 14
SECTION 106. Notice to Holders; Waiver................................ 14
SECTION 107. Effect of Headings and Table of Contents................. 15
SECTION 108. Successors and Assigns................................... 16
SECTION 109. Separability Clause...................................... 16
SECTION 110. Benefits of Indenture.................................... 16
SECTION 111. No Personal Liability.................................... 16
SECTION 112. Governing Law............................................ 16
SECTION 113. Legal Holidays........................................... 16
SECTION 114. Counterparts............................................. 17
ARTICLE TWO
SECURITIES FORMS............................................................ 17
SECTION 201. Forms of Securities...................................... 17
SECTION 202. Form of Trustee's Certificate of Authentication.......... 17
SECTION 203. Securities Issuable in Global Form....................... 18
ARTICLE THREE
THE SECURITIES.............................................................. 19
SECTION 301. Amount Unlimited; Issuable in Series..................... 19
SECTION 302. Denominations............................................ 23
SECTION 303. Execution, Authentication, Delivery and Dating........... 23
SECTION 304. Temporary Securities..................................... 26
SECTION 305. Registration, Registration of Transfer and Exchange...... 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities......... 32
SECTION 307. Payment of Interest; Interest Rights Preserved........... 33
SECTION 308. Persons Deemed Owners.................................... 36
SECTION 309. Cancellation............................................. 36
SECTION 310. Computation of Interest.................................. 37
ARTICLE FOUR
SATISFACTION AND DISCHARGE.................................................. 37
SECTION 401. Satisfaction and Discharge of Indenture.................. 37
SECTION 402. Application of Trust Funds............................... 39
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ARTICLE FIVE
REMEDIES.................................................................... 39
SECTION 501. Events of Default........................................ 39
SECTION 502. Acceleration of Maturity; Rescission and Annulment....... 42
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................. 43
SECTION 504. Trustee May File Proofs of Claim......................... 44
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................... 45
SECTION 506. Application of Money Collected........................... 45
SECTION 507. Limitation on Suits...................................... 45
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, Interest and
Additional Amounts....................................... 46
SECTION 509. Restoration of Rights and Remedies....................... 46
SECTION 510. Rights and Remedies Cumulative........................... 46
SECTION 511. Delay or Omission Not Waiver............................. 47
SECTION 512. Control by Holders of Securities......................... 47
SECTION 513. Waiver of Past Defaults.................................. 47
SECTION 514. Waiver of Usury, Stay or Extension Laws.................. 48
SECTION 515. Undertaking for Costs.................................... 48
ARTICLE SIX
THE TRUSTEE................................................................. 48
SECTION 601. Notice of Defaults....................................... 48
SECTION 602. Certain Rights of Trustee................................ 49
SECTION 603. Not Responsible for Recitals or Issuance of Securities... 50
SECTION 604. May Hold Securities...................................... 51
SECTION 605. Money Held in Trust...................................... 51
SECTION 606. Compensation and Reimbursement........................... 51
SECTION 607. Trustee Eligibility; Conflicting Interests............... 52
SECTION 608. Resignation and Removal; Appointment of Successor........ 52
SECTION 609. Acceptance of Appointment by Successor................... 54
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business.............................................. 55
SECTION 611. Appointment of Authenticating Agent...................... 55
SECTION 612. Trustee's Application for Instructions from the
Operating Partnership or the Company..................... 57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE,OPERATING PARTNERSHIP AND
COMPANY..................................................................... 58
SECTION 701. Disclosure of Names and Addresses of Holders............. 58
SECTION 702. Reports by Trustee....................................... 58
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SECTION 703. Reports by Operating Partnership and Company............. 57
SECTION 704. Operating Partnership and Company to Furnish Trustee
Names and Addresses of Holders........................... 58
SECTION 705. Statement by Officers as to Default...................... 58
SECTION 706. Original Issue Discount.................................. 58
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE............................ 58
SECTION 801. Consolidations, Mergers, Sales, Leases and Conveyances
of Operating Partnership Permitted Subject
to Certain Conditions.................................... 58
SECTION 802. Rights and Duties of Successor Entity.................... 59
SECTION 803. Operating Partnership Certificate and Opinion of Counsel. 59
SECTION 804. Consolidations, Mergers, Sales, Leases and Conveyances
of Company Permitted Subject to Certain Conditions...... 60
SECTION 805. Rights and Duties of Successor Corporation............... 60
SECTION 806. Company Certificate and Opinion of Counsel............... 60
SECTION 807. Assumption by Company.................................... 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES..................................................... 61
SECTION 901. Supplemental Indentures Without Consent of Holders....... 61
SECTION 902. Supplemental Indentures with Consent of Holders.......... 63
SECTION 903. Execution of Supplemental Indentures..................... 64
SECTION 904. Effect of Supplemental Indentures........................ 64
SECTION 905. Conformity with Trust Indenture Act...................... 64
SECTION 906. Reference in Securities to Supplemental Indentures....... 64
SECTION 907. Notice of Supplemental Indentures........................ 65
ARTICLE TEN
COVENANTS................................................................... 65
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
Interest and Additional Amounts......................... 65
SECTION 1002. Maintenance of Office or Agency......................... 65
SECTION 1003. Money for Securities Payments to Be Held in Trust....... 67
SECTION 1004. Existence............................................... 69
SECTION 1005. Maintenance of Properties............................... 69
SECTION 1006. Insurance............................................... 69
SECTION 1007. Payment of Taxes and Other Claims....................... 69
SECTION 1008. Provision of Financial Information...................... 69
SECTION 1009. Statement as to Compliance.............................. 70
SECTION 1010. Additional Amounts...................................... 70
SECTION 1011. Waiver of Certain Covenants............................. 71
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES.................................................... 72
SECTION 1101. Applicability of Article................................ 72
SECTION 1102. Election to Redeem; Notice to Trustee................... 72
SECTION 1103. Selection by Trustee of Securities to Be Redeemed....... 72
SECTION 1104. Notice of Redemption.................................... 73
SECTION 1105. Deposit of Redemption Price............................. 74
SECTION 1106. Securities Payable on Redemption Date................... 74
SECTION 1107. Securities Redeemed in Part............................. 75
ARTICLE TWELVE
SINKING FUNDS............................................................... 75
SECTION 1201. Applicability of Article................................ 75
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities... 76
SECTION 1203. Redemption of Securities for Sinking Fund............... 76
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS.......................................... 77
SECTION 1301. Applicability of Article................................ 77
SECTION 1302. Repayment of Securities................................. 77
SECTION 1303. Exercise of Option...................................... 77
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable............................................. 78
SECTION 1305. Securities Repaid in Part............................... 79
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE.......................................... 79
SECTION 1401. Applicability of Article; Operating Partnership's Option
to Effect Defeasance or Covenant Defeasance............. 79
SECTION 1402. Defeasance and Discharge................................ 79
SECTION 1403. Covenant Defeasance..................................... 80
SECTION 1404. Conditions to Defeasance or Covenant Defeasance......... 80
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions........... 83
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES........................................... 84
SECTION 1501. Purposes for Which Meetings May Be Called............... 84
SECTION 1502. Call, Notice and Place of Meetings...................... 84
SECTION 1503. Persons Entitled to Vote at Meetings.................... 84
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SECTION 1504. Quorum; Action.......................................... 85
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings................................. 86
SECTION 1506. Counting Votes and Recording Action of Meetings......... 87
SECTION 1507. Evidence of Action Taken by Holders..................... 87
SECTION 1508. Proof of Execution of Instruments....................... 87
ARTICLE SIXTEEN
GUARANTEE................................................................... 88
SECTION 1601. Guarantee............................................... 88
TESTIMONIUM
SIGNATURES
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
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Reconciliation and tie between
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"),
and Indenture
Trust Indenture Act Section Indenture Section
310(a)(1), (2) and (5)............................................... 607(a)
310(a)(3) and (4).................................................... Not applicable
310(b)............................................................... 608(d)
310(c)............................................................... Not applicable
311.................................................................. Not applicable
312(a)............................................................... 704
312(b)............................................................... Not applicable
312(c)............................................................... 701
313(a) and (c)....................................................... 702
313(b) and (d)....................................................... Not applicable
314(a)(1), (2) and (3)............................................... 703
314(a)(4)............................................................ 1009
314(b)............................................................... Not applicable
314(c)............................................................... 102
314(d)............................................................... Not applicable
314(e)............................................................... 102
314(f)............................................................... Not applicable
315(a), (c), (d) and (e)............................................. Not applicable
315(b)............................................................... 601
316(a) (last sentence)............................................... 101 ("Outstanding")
316(a)(1)(A)......................................................... 512
316(a)(1)(B)......................................................... 513
316(a)(2)............................................................ Not applicable
316(b)............................................................... 508
316(c)............................................................... Not applicable
317(a)(1)............................................................ 503
317(a)(2)............................................................ 504
317(b)............................................................... Not applicable
318(a)............................................................... 112
_________________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to and
including 317 of the Trust Indenture Act are a part of and govern every
qualified indenture, whether or not physically contained therein.
viii
INDENTURE, dated as of ___________ __, 1999, among CABOT INDUSTRIAL
PROPERTIES, L.P., a Delaware limited partnership (hereinafter called the
"Operating Partnership"), CABOT INDUSTRIAL TRUST, a Maryland real estate
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investment trust (hereinafter called the "Company"), both the Company and the
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Operating Partnership having their principal office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee hereunder (hereinafter called the "Trustee"), having its
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Corporate Trust Office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS
The Operating Partnership may deem it necessary to issue from time to time
for its lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing its unsecured and unsubordinated indebtedness, and has
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duly authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to aggregate
principal amount, to bear interest at the rates or formulas, to mature at such
times and to have such other provisions as shall be fixed therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Operating Partnership, in accordance with its terms, have been done.
For value received, the execution and delivery by the Company of this
Indenture to provide for the issuance of guarantees (herein called the
"Guarantees") from time to time as herein contemplated and the endorsement of
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such Guarantees on the Securities has been duly authorized. All things
necessary to make this Indenture a valid agreement of the Company, in accordance
with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act (as
herein defined) and the rules and regulations of the Commission (as herein
defined) promulgated thereunder which are required to be part of this Indenture
and, to the extent applicable, shall be governed by such provisions.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof (as herein defined), it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 Definitions. For all purposes of this Indenture, except as
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otherwise expressly provided or the context otherwise requires:
1
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-
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liquidating paper," as used in Section 311 of the Trust Indenture Act,
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shall have the meanings assigned to them in the rules of the Commission
adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP (as herein defined); and
(4) the words "herein," "hereof" and "hereunder" and other words of
------ ------ ---------
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in Section 104(a).
---
"Additional Amounts" means any additional amounts which are required by
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the terms of a Security, under circumstances specified therein, to be paid by
the Operating Partnership in respect of certain taxes imposed on certain Holders
and which are owing to such Holders.
"Affiliate" when used with respect to any Person, means any other Person
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directly or indirectly controlling or controlled by or under direct or indirect
common control with such Person. For the purposes of this definition, "control"
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when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
------------ ----------
"Authenticating Agent" means any authenticating agent appointed by the
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Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
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or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
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"Bearer Security" means a Security which is payable to bearer.
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2
"Board of Trustees" means the board of trustees of the Company, the
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executive committee or any other committee of such board duly authorized to act
for it in respect hereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
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or an Assistant Secretary of the Company to have been duly adopted by the Board
of Trustees, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any other
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particular location referred to in this Indenture or in any Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, any day, other than a Saturday or Sunday, which is neither a legal holiday
nor a day on which banking institutions in such Place of Payment or particular
location are authorized or required by law, regulation or executive order to
close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
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successor.
"Commission" means the Securities and Exchange Commission, as from time to
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time constituted, created under the Exchange Act, or, if at any time after
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Depository" has the meaning specified in Section 304(b).
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"Company" means the Person named as the "Company" in the first paragraph
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of this Indenture until a successor corporation has become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation, and any other guarantor on any Guarantee.
"Company Certificate" means a certificate signed by the Chairman of the
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Board of Trustees, the President or a Vice President of the Company and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Company Request" and "Company Order" mean, respectively, a written
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request or order signed in the name of the Company by the Chairman of the Board
of Trustees, the President or a Vice President of the Company and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
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(other than the Euro or other currency unit) both by the government of the
country which issued such currency and for the settlement of transactions by a
central bank or other public institutions of or within the international banking
community, (ii) the Euro or (iii) any currency unit (or composite currency)
other than the Euro for the purposes for which it was established.
3
"Corporate Trust Office" means the office of the Trustee at which, at any
----------------------
particular time, its corporate trust business is principally administered, which
office at the date hereof is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
"corporation" includes corporations, associations, limited liability
-----------
companies, real estate investment trusts and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"covenant defeasance" has the meaning specified in Section 1403.
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"Custodian" has the meaning specified in Section 501.
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"Defaulted Interest" has the meaning specified in Section 307.
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"defeasance" has the meaning specified in Section 1402.
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"Dollar" or "$" means a dollar or other equivalent unit in such coin or
------ -
currency of the United States of America as at the time is legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company.
---
"Euro" means the single currency of the participating member states from
----
time to time of the European Union described in legislation of the European
Council for the operation of a single unified European currency (whether known
as the Euro or otherwise).
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
---------
Office, or its successor as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
------------
the rules and regulations promulgated thereunder by the Commission.
"Exchange Date" has the meaning specified in Section 304(b).
-------------
"Financial Statements" has the meaning specified in Section 1008.
--------------------
"Foreign Currency" means any currency, currency unit or composite
----------------
currency, including, without limitation, the Euro issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
4
"GAAP" means generally accepted accounting principles as used in the
----
United States applied on a consistent basis as in effect from time to time;
provided that, solely for purposes of calculating the financial covenants
--------
contained herein, "GAAP" shall mean generally accepted accounting principles as
used in the United States on the date hereof, applied on a consistent basis.
"Government Obligations" means securities which are (i) direct obligations
----------------------
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and also
includes a depository receipt issued by a bank or trust company as custodian
with respect to any such Government Obligation or a specific payment of interest
on or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
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by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Guarantee" means the unconditional guarantee of the payment of the
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principal of (and premium and Make-Whole Amount, if any, on) and interest and
Additional Amounts, if any, on the Guaranteed Securities by the Company, as more
fully described in Article Sixteen.
"Guaranteed Securities" means a series of Securities made subject to a
---------------------
Guarantee (as set forth in Article Sixteen) pursuant to Section 301.
"Holder" when used with respect to a Registered Security, means the Person
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in whose name such Registered Security is registered in the Security Register
and, when used with respect to a Bearer Security or any coupon, means the bearer
thereof.
"Indenture" means this instrument as originally executed or as it may from
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time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and includes
the terms of particular series of Securities established as contemplated by
Section 301; provided, however, that, if at any time more than one Person is
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acting as Trustee under this instrument, "Indenture" when used with respect to
any one or more series of Securities with respect to which such Person is acting
as Trustee, shall mean 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 and shall
include the terms of the or those particular series of Securities with respect
to which such Person is acting as Trustee established as contemplated
5
by Section 301, exclusive, however, of any provisions or terms which relate
solely to other series of Securities with respect to which such Person is not
acting as Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that the
----------------
principal amount thereof payable at Stated Maturity may be more or less than the
face principal amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount Security
--------
which by its terms bears interest only after Maturity, means interest payable
after Maturity, and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1010, includes such Additional
Amounts.
"Interest Payment Date" when used with respect to any Security, means the
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Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
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which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Operating Partnership to the Holder thereof in connection with any optional
redemption or accelerated payment of such Security.
"mandatory sinking fund payment" has the meaning specified in Section
------------------------------
1201.
"Maturity" when used with respect to any Security, means the date on which
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the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Notice of Default" has the meaning specified in Section 501.
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"Operating Partnership" means the Person named as the "Operating
---------------------
Partnership" in the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Operating Partnership" shall mean such successor Person, and any
other obligor upon the Securities.
"Operating Partnership Certificate" means a certificate signed in the name
---------------------------------
of the Operating Partnership by the Chairman of the Board of Trustees, the
President or a Vice President of the Company and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, in the
Company's capacity as sole general partner of the Operating Partnership, and
delivered to the Trustee.
6
"Operating Partnership Request" or "Operating Partnership Order" mean,
----------------------------- ---------------------------
respectively, a written request or order signed in the name of the Operating
Partnership by the Chairman of the Board of Trustees, the President or a Vice
President of the Company and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, in the Company's capacity as
general partner of the Operating Partnership, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
------------------
employee of or counsel for the Operating Partnership or the Company or other
counsel satisfactory to the Trustee.
"optional sinking fund payment" has the meaning specified in Section 1201.
-----------------------------
"Original Issue Discount Security" means any Security which provides for
--------------------------------
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, means, as of the date
-----------
of determination, all Securities theretofore authenticated and delivered under
this Indenture, exclusive of:
(1) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Operating Partnership or the Company) in trust or set aside
and segregated in trust by the Operating Partnership (if the Operating
Partnership shall act as its own Paying Agent) for the holders of such
Securities and any coupons appertaining thereto, provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or other provision therefor satisfactory
to the Trustee has been made;
(3) Securities, except solely to the extent provided in Section
401, 1402 or 1403, as applicable, with respect to which the Operating
Partnership has effected defeasance and/or covenant defeasance as provided
in Article Four or Fourteen; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there has been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Operating Partnership;
7
provided, however, that in determining whether the Holders of the required
-------- -------
principal amount of the Outstanding Securities have concurred in any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by Section 313 of the Trust Indenture Act, (i)
the principal amount of an Original Issue Discount Security which may be counted
in making such determination or calculation and which shall be deemed
Outstanding for such purpose shall be equal to the amount of principal thereof
which would be (or has been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency which may be counted in making such determination or
calculation and which shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined pursuant to Section 301 as of the
date such Security is originally issued by the Operating Partnership, of the
principal amount (or, in the case of an Original Issue Discount Security, the
Dollar equivalent as of such date of original issuance of the amount determined
as provided in clause (i) above) of such Security, (iii) the principal amount of
any Indexed Security which may be counted in making such determination or
calculation and which shall be deemed Outstanding for such purpose shall be
equal to the face principal amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Indexed Security
pursuant to Section 301, and (iv) Securities owned by the Operating Partnership,
the Company or any other obligor on the Securities or any Affiliate of the
Operating Partnership, the Company or of such other obligor shall be disregarded
and deemed not Outstanding, except that, for the purposes of determining whether
the Trustee is protected in making such calculation or in relying on any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Operating Partnership, the Company or any other obligor on the
Securities or any Affiliate of the Operating Partnership, the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Operating Partnership to
------------
pay the principal of (and premium or Make-Whole Amount, if any, on) and interest
and Additional Amounts, if any, on any Securities or coupons on behalf of the
Operating Partnership, or if no such Person is authorized, the Operating
Partnership.
"Person" means any individual, corporation, partnership, limited liability
------
company, joint venture, association, joint-stock company, real estate investment
trust, business trust, unincorporated organization or government or any agency
or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of or within
----------------
any series, means the Corporate Trust Office of the Trustee and any place or
places which the Operating Partnership may from time to time designate as the
place or places where the principal of (and premium or Make-Whole Amount, if
any, on) and interest and Additional Amounts, if any, on such Securities are
payable as specified as contemplated by Sections 301 and 1002 and
8
presentations, surrenders, notices and demands with respect to such Securities
and this Indenture may be made.
"Predecessor Security" when used with respect to any particular Security,
--------------------
means every previous Security evidencing all or a portion of the same debt as
evidenced by such Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date" when used with respect to any Security to be redeemed,
---------------
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed,
----------------
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security which is registered in the
-------------------
Security Register.
"Regular Record Date" when used with respect to an installment of interest
-------------------
payable on any Interest Payment Date on the Registered Securities of or within
any series, means the date specified for that purpose as contemplated by Section
301, whether or not a Business Day.
"Repayment Date" when used with respect to any Security to be repaid or
--------------
repurchased at the option of the Holder, means the date fixed for such repayment
or repurchase by or pursuant to this Indenture.
"Repayment Price" when used with respect to any Security to be repaid or
---------------
repurchased at the option of the Holder, means the price at which it is to be
repaid or repurchased by or pursuant to this Indenture.
"Required Filing Dates" has the meaning specified in Section 1008.
---------------------
"Responsible Officer" when used with respect to the Trustee, means any
-------------------
officer of the Trustee in the corporate trust department or similar group of the
Trustee or, with respect to any particular matter arising hereunder, any officer
of the Trustee to whom such matter has been assigned.
"Securities Act" means the Securities Act of 1933, as amended, and the
--------------
rules and regulations promulgated thereunder by the Commission.
"Security" has the meaning specified in the first recital of this
--------
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
-------- -------
there is more than one Person acting as Trustee under
9
this Indenture, "Securities" when used with respect to the Indenture with
respect to which such Person is acting as Trustee, shall have the meaning stated
in the first recital of this Indenture and shall more particularly mean
Securities authenticated and delivered under this Indenture, exclusive, however,
of Securities of or within any series with respect to which such Person is not
acting as Trustee.
"Security Register" and "Security Registrar" have the respective meanings
----------------- ------------------
specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
----------------------
subsidiary" (within the meaning of Regulation S-X promulgated under the
Securities Act.)
"Special Record Date" when used with respect to the payment of any
-------------------
Defaulted Interest on the Registered Securities of or within any series, means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon or any Additional Amounts
with respect thereto, means the date specified in such Security or a coupon
representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable.
"Subsidiary" when used with respect to any Person, means any corporation
----------
or other entity of which a majority of (a) the voting power of the voting equity
securities or (b) in the case of a partnership or any other entity other than a
corporation, the outstanding equity interests of which are owned, directly or
indirectly, by such Person. For the purposes of this definition, "voting equity
securities" means equity securities having voting power for the election of
directors, whether at all times or only so long as no senior class of securities
has such voting power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
-------------------
and as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
-------
of this Indenture until a successor Trustee has become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then acting as a Trustee hereunder; provided,
--------
however, that if at any time there is more than one such Person, "Trustee" when
-------
used with respect to the Securities of or within any series, shall mean only the
Trustee with respect to the Securities of such series.
"United States" means, unless otherwise specified with respect to any
-------------
Securities pursuant to ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
10
"United States person" means, unless otherwise specified with respect to
--------------------
any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
-----------------
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application
------------------------------------
or request by the Operating Partnership or the Company to the Trustee to take
any action under any provision of this Indenture, the Operating Partnership or
the Company, as the case may be, shall furnish to the Trustee an Operating
Partnership Certificate or a Company Certificate, as the case may be, stating
that all conditions precedent, if any, provided for in this Indenture (including
any covenants compliance with which constitute conditions precedent) 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 Indenture (other than certificates provided
pursuant to Section 1009) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation on which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case in which
--------------------------------------
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is
11
not necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion as to some matters
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Operating Partnership or
the Company may be based, insofar as it relates to legal matters, on an Opinion
of Counsel, or a certificate or representations by counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters on which his or her
certificate or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations may be based, insofar as it relates to factual
matters, on a certificate or opinion of, or representations by, an officer or
officers of the Operating Partnership or the Company, as the case may be,
stating that the information as to such factual matters is in the possession of
the Operating Partnership or the Company, as the case may be, unless such
counsel knows that the certificate or opinion or representations as to such
matters are erroneous.
If any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series,
as the case may be, may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are
issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this
Indenture to be given or taken by Holders of the Outstanding Securities of
such series may, alternatively, be embodied in and evidenced by the record
of such Holders voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of such Holders duly called and
held in accordance with the provisions of Article Fifteen, or a combination
of such instruments and any such record. Except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments or record or both are delivered to the Trustee and, if
expressly required herein, to the Operating Partnership or the Company.
Such instrument or instrument and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments or so voting at
---
any such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee, the Operating Partnership and
12
the Company and any agent of the Trustee, the Operating Partnership or the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him or her
the execution thereof. If such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other reasonable
manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depository, by
any trust company, bank, banker or other depository, wherever situated, if
such certificate is deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee, the Operating Partnership
and the Company may assume that such ownership of any Bearer Security
continues until (i) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, (ii) such Bearer
Security is produced to the Trustee by some other Person, (iii) such Bearer
Security is surrendered in exchange for a Registered Security or (iv) such
Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Operating Partnership or the Company shall solicit from the
Holders of Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Operating Partnership
or the Company, as the case may be, may, at its option, in or pursuant to a
Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but neither the Operating Partnership
nor the Company shall be obligated to do so. Notwithstanding Section
316(c) of the Trust Indenture Act, such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may
be given before or
13
after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purpose
of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the
--------
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating
Agent, the Operating Partnership or the Company in reliance thereon,
whether or not notation of such action is made on such Security.
SECTION 105. Notices to Trustee, Operating Partnership and Company. Any
-----------------------------------------------------
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(1) the Trustee by any Holder, the Operating Partnership or the
Company shall be sufficient for every purpose hereunder if in writing and
mailed, first class postage prepaid, to the Trustee addressed to it at the
address of its Corporate Trust Office specified in the first paragraph of
this Indenture, Attention: Corporate Trust Administration; or
(2) the Operating Partnership or the Company by the Trustee or any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first class postage
prepaid, to the Operating Partnership or the Company, as the case may be,
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Operating Partnership or the
Company, as the case may be.
SECTION 106. Notice to Holders; Waiver. When this Indenture provides for
-------------------------
notice of any event to Holders of Registered Securities by the Operating
Partnership, the Company or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-
class postage prepaid, to each such Holder affected by such event, at such
Holder's address as it appears in the Security Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case in which notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the
14
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice mailed to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder,
whether or not such Holder actually receives such notice.
If, by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause, it is impracticable to give such notice
by mail, then such notification to Holders of Registered Securities as is made
with the approval of the Trustee shall constitute a sufficient notification to
such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, when this Indenture provides
for notice to Holders of Bearer Securities of any event, such notices shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities
and, if the Securities of such series are listed on any securities exchange
outside the United States, in any place at which such Securities are listed on a
securities exchange to the extent that such securities exchange so requires, on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If, by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause, it is impracticable to
publish any notice to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as is given with the approval of
the Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication to any particular
Holder of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
When this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
----------------------------------------
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
15
SECTION 108. Successors and Assigns. All covenants and agreements in this
----------------------
Indenture by the Operating Partnership or the Company shall bind their
respective successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this Indenture
-------------------
or in any Security or Guarantee, if any, endorsed thereon or any coupon
appertaining thereto shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the
---------------------
Securities or Guarantees, if any, endorsed thereon or any coupons appertaining
thereto, express or implied, shall give to any Person, other than the parties
hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and
their successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability. No recourse under or on any
---------------------
obligation, covenant or agreement contained in this Indenture, or in any
Security or Guarantee, if any, endorsed thereon or any coupon appertaining
thereto, or because of any indebtedness evidenced thereby, shall be had against
any promoter, as such, or against any past, present or future trustee, officer,
employee or shareholder, as such, of the Operating Partnership, the Company or
any successor, either directly or through the Operating Partnership, the Company
or any successor, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities and Guarantees, if any, endorsed thereon by the
Holders thereof and as part of the consideration for the issue of the Securities
and Guarantees, if any, endorsed thereon.
SECTION 112. Governing Law. This Indenture, the Securities and the
-------------
Guarantees, if any, endorsed thereon and any coupons appertaining thereto shall
be governed by and construed in accordance with the law of the State of New
York. This Indenture is subject to the provisions of the Trust Indenture Act
which are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions. If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by operation of Section
318(c) of the Trust Indenture Act, the imposed duties shall control.
SECTION 113. Legal Holidays. In any case in which any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security is not a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
the principal of (and premium or Make-Whole Amount, if any, on) or interest or
Additional Amounts, if any, on such Security need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or
16
sinking fund payment date, or at the Stated Maturity or Maturity; provided,
--------
however, that no interest shall accrue on the amount so payable for the period
-------
from and after such Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date, Stated Maturity or Maturity, as the case may be.
SECTION 114. Counterparts. This Indenture may be executed in several
------------
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any, of
-------------------
each series, the Bearer Securities, if any, of each series, the related
Guarantees, if any, endorsed thereon and any coupons of each series, shall be in
substantially such forms as are established in or pursuant to one or more
indentures supplemental hereto or Board Resolutions, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Operating Partnership or the
Company may deem appropriate and as are not inconsistent with the provisions of
this Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject to
-----------------------------------------------
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
17
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
Date: By:_________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as are specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities of such series from
time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in the manner and in
accordance with instructions given by such Person or Persons specified therein
or in the Operating Partnership Order to be delivered to the Trustee pursuant to
Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and in accordance with instructions given by
the Person or Persons specified therein or in the applicable Operating
Partnership Order. If an Operating Partnership Order pursuant to Section 303 or
304 has been, or simultaneously is, delivered, any instructions by the Operating
Partnership with respect to endorsement or delivery or redelivery of a Security
in global form shall be in writing but need not comply with Section 102 and need
not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Operating Partnership and the Operating Partnership
delivers to the Trustee the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of (and premium or Make-
Whole Amount, if any, on) and interest and Additional Amounts, if any, on any
Security in permanent global form shall be made to the Person or Persons
specified therein.
18
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Operating Partnership, the Company, the Trustee and any
agent of the Operating Partnership, the Company or the Trustee shall treat as
the Holder of such principal amount of Outstanding Securities represented by a
permanent global Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered
form, or (ii) in the case of a permanent global Security in bearer form,
Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (15) below), if so provided, may be determined
from time to time by the Operating Partnership and the Company with respect to
unissued Securities of or within the series when issued from time to time):
(1) the title of the Securities of or within the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit on the aggregate principal amount of the Securities of
or within the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of or within the series pursuant to Section 304, 305, 306, 906,
1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of or within the
series shall be payable and the amount of principal payable thereon;
(4) the rate or rates at which the Securities of or within the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date
shall be determined, and the basis on which interest shall be calculated if
other than a 360-day year comprised of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Corporate Trust Office where the principal of (and premium or Make-Whole
Amount, if any, on) and
19
interest and Additional Amounts, if any, on Securities of or within the
series shall be payable, any Registered Securities of or within the series
may be surrendered for registration of transfer or exchange and notices or
demands to or upon the Operating Partnership or the Company, as applicable,
in respect of the Securities of or within the series, any related
Guarantees and this Indenture may be served;
(6) the period or periods within which, the price or prices (including
the premium or Make-Whole Amount, if any) at which, the currency or
currencies, currency unit or units or composite currency or currencies in
which, and other terms and conditions upon which Securities of or within
the series may be redeemed, in whole or in part, at the option of the
Operating Partnership, if the Operating Partnership is to have the option;
(7) the obligation, if any, of the Operating Partnership to redeem,
repay or purchase Securities of or within the series pursuant to any
sinking fund or analogous provision or at the option of a Holder thereof,
and the period or periods within which or the date or dates on which, the
price or prices at which, the currency or currencies, currency unit or
units or composite currency or currencies in which, and other terms and
conditions upon which Securities of or within the series shall be redeemed,
repaid or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of or within
the series shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of or
within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) the percentage of the principal amount at which Securities will
be issued and, if other than the principal amount thereof, the portion of
the principal amount of Securities of or within the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on the Securities of or
within the series shall be payable or in which the Securities of or within
the series shall be denominated;
(12) whether the amount of payments of the principal of (and premium
or Make-Whole Amount, if any, on) or interest or Additional Amounts, if
any, on the Securities of or within the series may be determined with
reference to an index, formula or other method (which index, formula or
method may be based, without limitation, on
20
one or more currencies, currency units, composite currencies, commodities,
equity indices or other indices), and the manner in which such amounts
shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on the Securities of or
within the series are to be payable, at the election of the Operating
Partnership or a Holder thereof, in a currency or currencies, currency unit
or units or composite currency or currencies other than that in which such
Securities are denominated or stated to be payable, the period or periods
within which (including the Election Date), and the terms and conditions
upon which, such election may be made, and the time and manner of, and
identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or
units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of or within the series on the occurrence of such events as may
be specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Operating Partnership or the Company with
respect to Securities of or within the series, whether or not such Events
of Default or covenants are consistent with the Events of Default or
covenants set forth herein;
(16) whether Securities of or within the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both,
any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of or within the
series may be exchanged for Registered Securities of or within the series
and vice versa (if permitted by applicable laws and regulations), whether
any Securities of or within the series are to be issuable initially in
temporary global form and whether any Securities of or within the series
are to be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and of
like tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 305, and, if Registered Securities of or within the
series are to be issuable as a global Security, the identity of the
depository for such series, and the date as of which any Bearer Securities
of or within the series and any temporary global Security representing
Outstanding Securities of or within the series shall be dated if other than
the date of original issuance of the first Security of the series to be
issued;
(17) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date
21
for such interest, the manner in which, or the Person to whom, any interest
on any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment Date
will be paid if other than in the manner provided in Section 304;
(18) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article Fourteen;
(19) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms
of such certificates, documents or conditions;
(20) whether Securities of or within the series are to be Guaranteed
Securities and, if so, the terms of the Guarantees endorsed thereon;
(21) whether and under what circumstances the Operating Partnership
will pay Additional Amounts as contemplated by Section 1010 on the
Securities of or within the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so, whether
the Operating Partnership will have the option to redeem such Securities
rather than pay such Additional Amounts (and the terms of any such option);
and
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any Bearer
Securities of such series, if any, and the Guarantees, if any, endorsed on any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global form, as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions or supplemental
indentures, a copy of an appropriate record of such action(s) shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Operating Partnership Order for
authentication and delivery of such Securities.
22
SECTION 302. Denominations. The Securities of each series shall be
-------------
issuable as Bearer Securities, as Registered Securities or in any combination
thereof, and in such denominations and amounts as are specified as contemplated
by Section 301. With respect to any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in denominations of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons appertaining thereto shall be executed on behalf of
the Operating Partnership by the Company in its capacity as general partner of
the Operating Partnership by the Chairman of the Board of Trustees, the
President, a Vice President or the Treasurer of the Company, under the Company's
corporate seal reproduced thereon, and attested by the Company's or one of its
Assistant Secretaries. The Company agrees to execute a Guarantee on each
Guaranteed Security authenticated and delivered by the Trustee. Guarantees
shall be executed on behalf of the Company by the Chairman of the Board of
Trustees, the President, a Vice President or the Treasurer of the Company, under
its corporate seal reproduced thereon, and attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities, any related Guarantees and any coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities, any related Guarantees and
any coupons.
Any Securities, any related Guarantees or any coupons bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Operating Partnership or the Company, as the case may
be, notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Securities or any
related Guarantees or did not hold such offices at the date of such Securities,
any related Guarantees or any coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Operating Partnership may deliver Securities of any series,
together with any coupons, executed by the Operating Partnership, and together
with any related Guarantees, executed by the Company to the Trustee for
authentication, together with an Operating Partnership Order for the
authentication and delivery of such Securities, and the Trustee shall
authenticate and deliver such Securities in accordance with the Operating
Partnership Order; provided, however, that, in connection with its original
-------- -------
issuance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided, further, that, unless otherwise
-------- -------
specified with respect to any series of Securities pursuant to Section 301, a
Bearer Security may be delivered in connection with its original issuance only
if the Person entitled to received such Bearer Security has furnished a
certificate to Euroclear or CEDEL, as the case may be, in the form set forth in
Exhibit A-1 to this Indenture or such other certificate as may be specified with
respect to any series of Securities pursuant to Section 301, dated no earlier
than 15 days prior to the
23
earlier of the date on which such Bearer Security is delivered and the date on
which any temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture.
Except as permitted by Section 306, the Trustee shall not authenticate and
deliver any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and canceled. If all of the Securities of any series
are not to be issued at one time and if the Board Resolution or supplemental
indenture establishing such series so permits, such Operating Partnership Order
may set forth procedures acceptable to the Trustee for the issuance of such
Securities and determining the terms of particular Securities of such series,
such as the interest rate or formula, maturity date, date of issuance and date
from which interest shall accrue.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, any
related Guarantees and any coupons appertaining thereto, the Trustee shall be
entitled to receive, and (subject to Section 315(a) through 315(d) of the Trust
Indenture Act) shall be fully protected in relying on:
(1) an Opinion of Counsel complying with Section 102 and stating that:
(A) the form or forms of such Securities, any related Guarantees
and any coupons appertaining thereto have been, or will have been upon
compliance with such procedures as may be specified therein,
established in conformity with the provisions of this Indenture;
(B) the terms of such Securities, any related Guarantees and any
coupons appertaining thereto have been, or will have been upon
compliance with such procedures as may be specified therein,
established in conformity with the provisions of this Indenture; and
(C) such Securities, together with any coupons appertaining
thereto, when executed by the Operating Partnership, together with any
related Guarantees, completed pursuant to such procedures as may be
specified therein and delivered by the Operating Partnership to the
Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Operating Partnership in the manner and
subject to any conditions specified in such Opinion of Counsel, and
any Guarantees endorsed on such Securities, when executed by the
Company and completed pursuant to such procedures as may be specified
therein and delivered together with such Securities as referred to
above, will constitute legal, valid and binding obligations of the
Operating Partnership and the Company, as the case may be, enforceable
in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors'
rights generally
24
and to general equitable principles and to such other matters as may
be specified therein; and
(2) an Operating Partnership Certificate and, if such Securities are
Guaranteed Securities, a Company Certificate, in each case complying with
Section 102 and stating that all conditions precedent provided for in this
Indenture relating to the issuance of such Securities have been, or will
have been upon compliance with such procedures as may be specified therein,
complied with and that, to the best of the knowledge of the signers of such
certificate, no Event of Default with respect to such Securities has
occurred and is continuing.
The Trustee shall not be required to authenticate such Securities if the issue
of such Securities pursuant to this Indenture will affect the Trustee's own
rights, duties, obligations or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Operating Partnership Order, an Opinion
of Counsel, an Operating Partnership Certificate or a Company Certificate
otherwise required pursuant to the preceding paragraph at the time of issuance
of each Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security, related Guarantee or coupon shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security or the Security to which such coupon appertains a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory, and such
certificate on any Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Security has been authenticated and delivered hereunder but never issued and
sold by the Operating Partnership, and the Operating Partnership delivers such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued or sold by the Operating Partnership, for all purposes of this Indenture
such Security and any related Guarantee shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
25
SECTION 304. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series,
the Operating Partnership may execute (and, if such Securities are
Guaranteed Securities, the Company may endorse Guarantees on); and upon an
Operating Partnership Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which
they are issued, in registered form, or, if authorized, in bearer form with
or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of
such Securities. In the case of Securities of any series, such temporary
Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in
or pursuant to a Board Resolution), if temporary Securities of any series
are issued, the Operating Partnership will cause definitive Securities of
such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at
the office or agency of the Operating Partnership in a Place of Payment for
such series, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Securities of any series, together with any
non-matured coupons appertaining thereto, the Operating Partnership shall
execute and the Trustee shall authenticate and deliver in exchange therefor
a like principal amount of definitive Securities (which, if such Securities
are Guaranteed Securities, shall have the related Guarantees endorsed
thereon) of the same series of authorized denominations; provided, however,
-------- -------
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided, further, that a definitive
-------- -------
Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities and any related Guarantees or
coupons appertaining thereto of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities
and related Guarantees or coupons appertaining thereto of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such
temporary Security is issued in global form, then such temporary global
Security shall, unless otherwise provided therein, be delivered to the
London office of a depository or common depository (the "Common
------
Depository"), for the benefit of Euroclear and CEDEL.
----------
26
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Operating Partnership shall
-------------
deliver to the Trustee definitive Securities, in an aggregate principal
amount equal to the principal amount of such temporary global Security,
executed by the Operating Partnership (and, if such Securities are
Guaranteed Securities, with the related Guarantees endorsed thereon). On or
after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depository to the Trustee, as the Operating
Partnership's agent for such purpose, to be exchanged, in whole or from
time to time in part, for definitive Securities without charge, and the
Trustee shall authenticate and deliver, in the name of Euroclear or CEDEL,
as the case may be, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities
(which, if such Securities are Guaranteed Securities, shall have the
related Guarantees endorsed thereon) of or within the same series of
authorized denominations and of like tenor as the portion of such temporary
global Security to be exchanged. The definitive Securities to be delivered
in exchange for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated
by Section 301, and, if any combination thereof is so specified, as
requested by the Common Depository; provided, however, that, unless
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otherwise specified in such temporary global Security, upon such
presentation by the Common Depository, such temporary global Security shall
be accompanied by a certificate dated the Exchange Date or a subsequent
date and signed by Euroclear as to the portion of such temporary global
Security held for its account then to be exchanged and a certificate dated
the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or
in such other form as may be established pursuant to Section 301; and
provided, further, that definitive Bearer Securities shall be delivered in
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exchange for a portion of a temporary global Security only in compliance
with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities (which, if
such Securities are Guaranteed Securities, shall have the related
Guarantees endorsed thereon) of the same series and of like tenor following
the Exchange Date when the account holder instructs Euroclear or CEDEL, as
the case may be, to request such exchange on his behalf and delivers to
Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior
to the Exchange Date, copies of which certificate shall be available from
the offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent. Unless
otherwise specified in such temporary global Security, any such exchange
shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must
bear the cost of insurance, postage, transportation and
27
the like unless such Person takes delivery of such definitive Securities in
person at the offices of Euroclear or CEDEL. Definitive Securities in
bearer form to be delivered in exchange for any portion of a temporary
global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable
on a temporary global Security on an Interest Payment Date for Securities
of such series occurring prior to the applicable Exchange Date shall be
payable to Euroclear and CEDEL on such Interest Payment Date upon delivery
by Euroclear and CEDEL to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other forms
as may be established pursuant to Section 301), for credit without further
interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary global Security
on such Interest Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth in Exhibit A-1 to this Indenture (or in such other forms
as may be established pursuant to Section 301). Notwithstanding anything
to the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities (which,
if such Securities are Guaranteed Securities, shall have the related
Guarantees endorsed thereon) of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments of principal or
interest owing with respect to a beneficial interest in a temporary global
Security will be made unless and until such interest in such temporary
global Security has been exchanged for an interest in a definitive
Security. Any interest so received by Euroclear and CEDEL and not paid as
herein provided shall be returned to the Trustee prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the
Operating Partnership
SECTION 305. Registration, Registration of Transfer and Exchange. The
---------------------------------------------------
Operating Partnership shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Operating Partnership in a Place
of Payment a register for each series of Securities (the registers maintained in
such office or in any such office or agency of the Operating Partnership in a
Place of Payment being herein sometimes referred to collectively as the
"Security Register") in which, subject to such reasonable regulations as it may
------------------
prescribe, the Operating Partnership shall provide for the registration of
Registered Securities and of transfers of Registered Securities. The Security
Register shall be in written form or any other form
28
capable of being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially appointed "Security
--------
Registrar" for the purpose of registering Registered Securities and transfers of
---------
Registered Securities on such Security Register as herein provided. In the event
that the Trustee ceases to be Security Registrar, it shall have the right to
examine the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Operating Partnership in a Place of Payment for such series,
the Operating Partnership shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities (which, if such Registered Securities are Guaranteed
Securities, shall have the related Guarantees endorsed thereon) of the same
series, of any authorized denominations and of a like aggregate principal
amount, being a number not contemporaneously outstanding, and containing
identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder,
Registered Securities of any series may be exchanged for other Registered
Securities of the same series, of any authorized denomination or denominations
and of a like aggregate principal amount, containing identical terms and
provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such Registered Securities are so
surrendered for exchange, the Operating Partnership shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities (which, if
such Registered Securities are Guaranteed Securities, shall have the related
Guarantees endorsed thereon) which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) permitted as contemplated by Section 301, at the option of
the Holder, Bearer Securities of any series may be exchanged for Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default appertaining thereto. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
Operating Partnership and the Company (if such Bearer Securities are Guaranteed
Securities) in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Operating Partnership, the Company (if such Bearer Securities are Guaranteed
Securities) and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security surrenders to any
Paying Agent any such missing coupon in respect of which such a payment has been
made, such Holder shall be entitled to receive the amount of payment; provided,
--------
however, that, except as otherwise provided in Section 1002, interest
-------
represented by a coupon shall be payable only upon presentation and surrender of
such
29
coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Operating Partnership shall execute, and the
Trustee shall authenticate and deliver, the Securities (which, if the Securities
are Guaranteed Securities, shall have the related Guarantees endorsed thereon)
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depository for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected and approved by the Operating Partnership or to a
nominee of such successor to DTC. If at any time DTC notifies the Operating
Partnership that it is unwilling or unable to continue as depository for the
applicable global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act if so required by applicable
law or regulation, the Operating Partnership shall appoint a successor
depository with respect to such global Security or Securities. If (i) a
successor depository for such global Security or Securities is not appointed by
the Operating Partnership within 90 days after the Operating Partnership
receives such notice or becomes aware of such unwillingness, inability or
ineligibility, (ii) an Event of Default has occurred and is continuing and the
beneficial owners representing a majority in principal amount of the applicable
series of Securities represented by such global Security or Securities advise
DTC to cease acting as depository for such global Security or Securities or
(iii) the Operating Partnership, in its sole discretion, determines at any time
that all (but not less than all) Outstanding Securities of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities (provided, however, that the
-------- -------
Operating Partnership may not make such determination during the 40-day
restricted period provided by Regulation S under the Securities Act or during
any other similar period during which the Securities must be held in global form
as may be required by the Securities Act), then, upon surrender of the global
Security or Securities appropriately endorsed, the Operating Partnership shall
execute, and the Trustee shall authenticate and deliver definitive Securities
(which, if the Securities are Guaranteed Securities, shall have the related
Guarantee endorsed thereon) of like series, rank, tenor and terms in
30
definitive form in an aggregate principal amount equal to the principal amount
of such global Security or Securities. If any beneficial owner of an interest in
a permanent global Security is otherwise entitled to exchange such interest for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security has been given, then without unnecessary delay but in any event not
earlier than the earliest date on which such interest may be so exchanged, upon
surrender of the global Security or Securities appropriately endorsed the
Operating Partnership shall execute, and the Trustee shall authenticate and
deliver definitive Securities (which, if the Securities are Guaranteed
Securities, shall have the related Guarantees endorsed thereon) in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered for exchange by DTC or such other depository as is specified in
the Operating Partnership Order with respect thereto to the Trustee, as the
Operating Partnership's agent for such purpose; provided, however, that no such
-------- -------
exchanges may occur during a period beginning at the opening of business 15 days
before the mailing of a Notice of Redemption of Securities to be redeemed and
ending on such mailing date; and provided, further, that no Bearer Security
-------- -------
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. If a
Registered Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities and any related Guarantees issued upon any registration of
transfer or exchange of Securities shall be the valid obligations of the
Operating Partnership and the Company, respectively, evidencing the same debt
and guaranty obligations, and entitled to the same benefits under this
Indenture, as the Securities and related Guarantees surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Operating
Partnership, the Company (if such Registered Securities are Guaranteed
Securities) and the Security Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Operating Partnership may require payment of a
sum sufficient to cover any
31
tax or other governmental charge which may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Operating Partnership or the Trustee, as applicable, shall not be
required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before the mailing of a Notice of Redemption for
the Securities to be redeemed under Section 1103 and ending at the close of
business on (A) if such Securities are issuable only as Registered Securities,
the day of the mailing of the relevant notice of redemption and (B) if such
Securities are issuable as Bearer Securities, the day of the first publication
of the relevant notice of redemption or, if such Securities are also issuable as
Registered Securities and there is no publication, the day of the mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Registered Security so selected for redemption in whole or in part, except,
in the case of any Registered Security to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected
for redemption except that such a Bearer Security may be exchanged for a
Registered Security of such series and like tenor, provided that such Registered
--------
Security is simultaneously surrendered for redemption, or (iv) to issue,
register the transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
------------------------------------------------
mutilated Security or a Security with a mutilated coupon appertaining thereto is
surrendered to the Trustee or the Operating Partnership, together with, in
proper cases, such security or indemnity as may be required by the Operating
Partnership, the Company (if such Security is a Guaranteed Security) or the
Trustee to save each of them or any of their agents harmless, the Operating
Partnership shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security (which, if such Security is a Guaranteed
Security, shall have the related Guarantee endorsed thereon) of the same series
and principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there is delivered to the Operating Partnership, the Company (if the
Security is a Guaranteed Security) and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and
(ii) such security or indemnity as may be required by them to save each of them
and any of their agents harmless, then, in the absence of notice to the
Operating Partnership, the Company (if the Security is a Guaranteed Security) or
the Trustee that such Security or coupon has been acquired by a bona fide
purchaser, the Operating Partnership shall execute and upon Operating
Partnership Request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to which
a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security (which, if such Security is a
Guaranteed Security, shall have the related Guarantee endorsed thereon) of the
same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding, with coupons
32
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Security or coupon has become or is
about to become due and payable, the Operating Partnership in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains, pay such
Security or coupon; provided, however, that payment of principal of (and premium
-------- -------
or Make-Whole Amount, if any, on) and interest and Additional Amounts, if any,
on any Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Operating
Partnership may require the payment of a sum sufficient to cover any tax or
other governmental charge which may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, and any related Guarantee and any coupons
appertaining thereto, issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, or in exchange for a Security to which a destroyed,
lost or stolen coupon appertains, shall constitute an original additional
contractual obligation of the Operating Partnership and the Company (if such
Security is a Guaranteed Security), whether or not the destroyed, lost or stolen
Security and any related Guarantee and any coupons appertaining thereto or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series, and any
related Guarantee and any coupons appertaining thereto, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except as
----------------------------------------------
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name such Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Operating
Partnership maintained for such purpose pursuant to Section 1002; provided,
--------
however, that each installment of interest on any Registered Security may at the
-------
Operating Partnership's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
33
Section 308, to the address of such Person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee located inside
the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depository, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of beneficial owners
thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date ("Defaulted Interest") shall
------------------
forthwith cease to be payable to the registered Holder thereof upon the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Operating Partnership or the Company (if the
Registered Security is a Guaranteed Security), at its election in each case, as
provided in paragraph (1) or (2) below:
(1) The Operating Partnership or the Company (if the Registered
Security is a Guaranteed Security) may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Operating Partnership or the Company, as the case may be, shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is received
by the Trustee), and at the same time the Operating Partnership or the
Company, as the case may be, shall deposit with the Trustee an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities
of such series) equal to the
34
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit on
or prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such Defaulted
Interest as provided in this paragraph. Thereupon, the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Operating Partnership or the Company, as the case may be, of such
Special Record Date and, in the name and at the expense of the Operating
Partnership or the Company, as the case may be, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at such Holder's address as it appears
in the Security Register not less than 10 days prior to such Special Record
Date. The Trustee may, in its discretion, in the name and at the expense of
the Operating Partnership or the Company, as the case may be, cause a
similar notice to be published at least once in an Authorized Newspaper in
each place of payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to paragraph (2) below. In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of payment
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Operating Partnership or the Company (if the Security is a
Guaranteed Security) may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and on such notice as may be required by such
exchange, if, after notice given by the Operating Partnership or Company,
as the case may be, to the Trustee of the proposed payment pursuant to this
paragraph, such manner of payment is deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of
35
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Operating Partnership, the
Company (if the Registered Security is a Guaranteed Security), the Trustee and
any agent of the Operating Partnership, the Company (if the Registered Security
is a Guaranteed Security) or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any,
on) and (subject to Sections 305 and 307) interest and Additional Amounts, if
any, on such Registered Security and for all other purposes whatsoever, whether
or not such Registered Security be overdue, and neither the Operating
Partnership, the Company, the Trustee nor any agent of the Operating
Partnership, the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Operating Partnership, the Company (if the Bearer
Security is a Guaranteed Security), the Trustee and any agent of the Operating
Partnership, the Company (if the Bearer Security is a Guaranteed Security) or
the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Operating Partnership, the Company, the Trustee nor any agent of the Operating
Partnership, the Company or the Trustee shall be affected by notice to the
contrary.
None of the Operating Partnership, the Company, the Trustee, any Paying
Agent or the Security Registrar shall have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing
herein shall prevent the Operating Partnership, the Company (if the global
Security is a Guaranteed Security), the Trustee, or any agent of the Operating
Partnership, the Company (if the global Security is a Guaranteed Security) or
the Trustee, from giving effect to any written certification, proxy or other
authorization furnished by any depository, as a Holder, with respect to such
global Security or impair, as between such depository and owners of beneficial
interests in such global Security, the operation of customary practices
governing the exercise of the rights of such depository (or its nominee) as
Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
------------
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and any Securities and
36
coupons surrendered directly to the Trustee for any such purpose shall be
promptly canceled by it. The Operating Partnership or the Company (if the
Security is a Guaranteed Security) may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Operating Partnership or the Company (if the Security is a Guaranteed
Security) may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Operating
Partnership has not issued and sold, and all Securities so delivered shall be
promptly canceled by the Trustee. If the Operating Partnership or the Company
(if the Security is a Guaranteed Security) so acquires any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be disposed of by the Trustee
in accordance with its procedures for the disposition of cancelled securities in
effect as of the date of such disposition and, upon the written request of the
Operating Partnership and the Company, the Trustee shall deliver a certificate
of such destruction to the Operating Partnership and the Company (if the
canceled Securities were Guaranteed Securities) unless the Operating Partnership
delivers an Operating Partnership Order or the Company delivers a Company Order,
as the case may be, which directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified as
-----------------------
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Operating Partnership Request or Company Request (if the Securities
of such series are Guaranteed Securities) cease to be of further effect with
respect to any series of Securities specified in such Operating Partnership
Request or Company Request, as the case may be, (except as to any surviving
rights of registration of transfer or exchange of Securities of such series
herein expressly provided for and any right to receive Additional Amounts, as
provided in Section 1010), and the Trustee, upon receipt of an Operating
Partnership Order or Company Order, as the case may be, and at the expense of
the Operating Partnership or the Company, as the case may be, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as
to such series when:
(1) either:
(A) all Securities of such series theretofore authenticated and
delivered and any coupons appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as
37
provided in Section 305, (ii) Securities of such series and coupons
appertaining thereto which have been destroyed, lost or stolen and
which have been replaced or paid as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇)
coupons appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities of such series and
coupons appertaining thereto for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Operating Partnership and thereafter repaid to the Operating
Partnership or the Company (if the Securities of such series are
Guaranteed Securities and the money was deposited by the Company) or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of clauses (i)
and (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Operating
Partnership, are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Operating Partnership and the Company (if the
Securities of such series are Guaranteed Securities),
and the Operating Partnership or the Company (if the Securities of
such series are Guaranteed Securities), in the case of clause (i),
(ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee funds in trust for the purpose, in the
currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable, and
in an amount sufficient to pay and discharge the entire indebtedness
on such Securities and such coupons not theretofore delivered to the
Trustee for cancellation, for the principal (and premium or Make-Whole
Amount, if any) and interest and Additional Amounts, if any, to the
date of such deposit (in the case of Securities which have become due
and payable) or the Stated Maturity or Redemption Date, as the case
may be;
(2) The Operating Partnership or the Company (if the Securities of
such series are Guaranteed Securities) has paid or caused to be paid all
other sums payable hereunder by the Operating Partnership and the Company;
and
38
(3) The Operating Partnership has delivered to the Trustee an
Operating Partnership Certificate and an Opinion of Counsel and the Company
has delivered to the Trustee a Company Certificate (if the Securities of
such series are Guaranteed Securities), each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Operating Partnership and the Company to the Trustee and any
predecessor Trustee under Section 606, the obligations of the Operating
Partnership and the Company to any Authenticating Agent under Section 611 and,
if money has been deposited with and held by the Trustee pursuant to
subparagraph (B) of paragraph (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of the
--------------------------
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Operating Partnership
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium or Make-Whole Amount, if any)
and interest and Additional Amounts, if any, for the payment of which such money
has been deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. Subject to any modifications, additions
-----------------
or deletions relating to any series of Securities as contemplated pursuant to
Section 301, "Event of Default," whenever used herein with respect to any
----------------
particular series of Securities, means any one of the following events (whatever
the reason for such Event of Default and whether or not it is voluntary or
involuntary or effected by operation of law or pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest on or any Additional
Amounts payable in respect of any Security of or within such series or of
any coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium or Make-
Whole Amount, if any, on) any Security of such series when due and payable
at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of such series; or
39
(4) default in the performance, or breach, of any covenant or warranty
of the Operating Partnership or the Company (if the Securities of such
series are Guaranteed Securities) in this Indenture or the Guarantee (if
applicable) with respect to any Security of such series (other than a
covenant or warranty a default in the performance of which or the breach of
which is elsewhere specifically provided for in this Section), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Operating
Partnership and the Company (if the Securities of such series are
Guaranteed Securities) by the Trustee or to the Operating Partnership, the
Company (if the Securities of such series are Guaranteed Securities) and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
-----------------
(5) default under any bond, debenture, note or other evidence of
indebtedness of the Operating Partnership or the Company (if the Securities
of such series are Guaranteed Securities), or under any mortgage, indenture
or other instrument of the Operating Partnership or the Company (if the
Securities of such series are Guaranteed Securities) (including a default
with respect to Securities of any series other than such series) under
which there may be issued or by which there may be secured any indebtedness
of the Operating Partnership or the Company (if the Securities of such
series are Guaranteed Securities) (or by any Subsidiary, the repayment of
which the Operating Partnership or the Company has guaranteed or for which
the Operating Partnership or the Company (if the Securities of such series
are Guaranteed Securities) is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or is hereafter created,
which default constitutes a failure to pay an aggregate principal amount
exceeding $20,000,000 of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto and has
resulted in such indebtedness in an aggregate principal amount exceeding
$20,000,000 becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 10 days after there has been
given, by registered or certified mail, to the Operating Partnership or the
Company, as the case may be, by the Trustee or to the Operating Partnership
or the Company, as the case may be, and the Trustee by the Holders of at
least 10% in principal amount of the Outstanding Securities of such series
a written notice specifying such default and requiring the Operating
Partnership or the Company, as the case may be, to cause such indebtedness
to be discharged or cause such acceleration to be rescinded or annulled and
stating that such notice is a "Notice of Default" hereunder; or
----------------
(6) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Operating Partnership, the Company
(if the Securities of such series are Guaranteed Securities) or any
Subsidiary of the Operating Partnership or the Company (if the Securities
of such series are Guaranteed Securities) in an aggregate amount (excluding
amounts covered by insurance) in excess of $20,000,000 and such
40
judgments, orders or decrees remain undischarged, unstayed and unsatisfied
in an aggregate amount (excluding amounts covered by insurance) in excess
of $20,000,000 for a period of 30 consecutive days; or
(7) the Operating Partnership, the Company (if the Securities of such
series are Guaranteed Securities) or any Significant Subsidiary of the
Operating Partnership or the Company (if the Securities of such series are
Guaranteed Securities) pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(8) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Operating Partnership, the Company
(if the Securities of such series are Guaranteed Securities) or any
Significant Subsidiary of the Operating Partnership or the Company (if
the Securities of such series are Guaranteed Securities) in an
involuntary case,
(B) appoints a Custodian of the Operating Partnership, the
Company (if the Securities of such series are Guaranteed Securities)
or any Significant Subsidiary of the Operating Partnership or the
Company (if the Securities of such series are Guaranteed Securities)
or for all or substantially all of its property, or
(C) orders the liquidation of the Operating Partnership, the
Company (if the Securities of such series are Guaranteed Securities)
or any Significant Subsidiary of the Operating Partnership or the
Company (if the Securities of such series are Guaranteed Securities),
and the order or decree remains unstayed and in effect for 90 days; or
(9) any other Event of Default provided with respect to Securities of
that series.
41
As used in this Section 501, the term "Bankruptcy Law" means Title 11, U.S. Code
--------------
or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
----------
official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
--------------------------------------------------
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case, unless the
principal of all of the Outstanding Securities of such series already has become
due and payable, the Trustee or the Holders of not less than 25% in principal
amount of the Outstanding Securities of such series may declare the principal
(or, if any Securities are Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be specified in the terms
thereof) of, and the Make-Whole Amount, if any, on, all the Securities of such
series to be due and payable immediately, by a notice in writing to the
Operating Partnership and the Company (if the Securities of such series are
Guaranteed Securities) (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Operating
Partnership, the Company (if the Securities of such series are Guaranteed
Securities) and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) The Operating Partnership or the Company (if the Securities of
such series are Guaranteed Securities) has paid or deposited with the
Trustee a sum sufficient to pay, in the currency, currency unit or
composite currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities
of such series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of such
series and any coupons appertaining thereto;
(B) the principal of (and premium or Make-Whole Amount, if any,
on) any Outstanding Securities of such series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest is lawful,
interest on overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities; and
42
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of such series,
other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any, on) or interest or Additional Amounts, if any, on
Securities of such series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
resulting therefrom.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Operating Partnership and the Company each covenants that if:
-------
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Security of any series or any coupon
appertaining thereto when any such interest or Additional Amount becomes
due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium or
Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Operating Partnership or the Company (if the Securities of such series
are Guaranteed Securities) shall, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Securities of such series and
any such coupons, the whole amount then due and payable on such Securities and
any such coupons for principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, if any, with interest on any overdue principal
(and premium or Make-Whole Amount, if any) and, to the extent that payment of
such interest is legally enforceable, on any overdue installments of interest or
Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as is sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Operating Partnership or the Company (if the Securities of such
series are Guaranteed Securities) fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Operating Partnership, the Company (if the
Securities of such series
43
are Guaranteed Securities) or any other obligor on the Securities of such
series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
coupons appertaining thereto by such appropriate judicial proceedings as the
Trustee deems most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the pendency of
--------------------------------
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Operating Partnership, the Company (if the Securities of such series are
Guaranteed Securities) or any other obligor on the Securities of such series or
the property of the Operating Partnership, the Company (if the Securities of
such series are Guaranteed Securities) or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series then due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee has made any demand on the
Operating Partnership or the Company (if the Securities of such series are
Guaranteed Securities) for the payment of overdue principal, premium or Make-
Whole Amount, if any, or interest or Additional Amounts, if any) shall be
entitled and empowered, by intervention in such proceeding or otherwise:
(1) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the Securities
of such series and to file such other papers or documents and take such
other action, including participating as a member of any official creditors
committee appointed in the matter, as it may deem necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and any coupons appertaining thereto to
make such payments to the Trustee, and in the event that the Trustee consents to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents and counsel,
and any other amounts due the Trustee or any predecessor Trustee under Section
606.
44
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 a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
-----------------------------------------------------------
or Coupons. All rights of action and claims under this Indenture or any of the
----------
Securities, any related Guarantees or any coupons may be prosecuted and enforced
by the Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected. Any money collected by the
------------------------------
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
(1) to the payment of all amounts due the Trustee and any predecessor
Trustee under Section 606;
(2) to the payment of the amounts then due and unpaid on the
Securities and coupons for principal (and premium or Make-Whole Amount, if
any) and interest and Additional Amounts, if any, payable, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate
amounts due and payable on such Securities and coupons for principal (and
premium or Make-Whole Amount, if any) and interest and Additional Amounts,
if any, respectively; and
(3) to the payment of the remainder, if any, to the Operating
Partnership or the Company, as the case may be.
SECTION 507. Limitation on Suits. No Holder of any Security of any
-------------------
series or any coupon appertaining thereto shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of such
series;
45
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee 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 in
principal amount of the Outstanding Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
------------------------------------------------------------
or Make-Whole Amount, Interest and Additional Amounts. Notwithstanding any
-----------------------------------------------------
other provision in this Indenture, the Holder of any Security or coupon shall
have the right which is absolute and unconditional to receive payment of the
principal of (and premium or Make-Whole Amount, if any, on ) and (subject to
Sections 305 and 307) interest and Additional Amounts, if any, on such Security
or payment of such coupon on or after the respective due dates expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired or affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any
----------------------------------
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case the Operating Partnership, the
Company (if the Security is a Guaranteed Security), the Trustee and the Holders
of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred on or reserved
46
to the Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the
----------------------------
Trustee or of any Holder of any Security or coupon 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 may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not less
--------------------------------
than a majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Securities of such series,
provided that:
--------
(1) such direction is not in conflict with any rule of law or with
this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein (but the Trustee shall have no obligation
as to the determination of such undue prejudice).
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
-----------------------
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any coupons
appertaining thereto waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of (or premium or Make-Whole
Amount, if any, on) or interest or Additional Amounts, if any, on any
Security of such series or any coupons appertaining thereto, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected thereby.
47
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right resulting therefrom.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Operating
---------------------------------------
Partnership and the Company each covenants (to the extent which it may lawfully
do so) that it will not at any time insist on, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Operating
Partnership and the Company each (to the extent which it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture agree,
---------------------
and each Holder of any Security by such Holder's acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole Amount,
if any, on) or interest or Additional Amounts, if any, on any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence of
------------------
any default hereunder with respect to the Securities of any series, the Trustee
shall give to the Holders, in the manner and to the extent provided in Section
313(c) of the Trust Indenture Act, notice of such default hereunder known to the
Trustee, unless such default has been cured or waived; provided, however, that,
-------- -------
except in the case of a default in the payment of the principal of (or premium
or Make-Whole Amount, if any, on) or interest or Additional Amounts, if any, on
any Security of such series, or in the payment of any sinking fund installment
with respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Securities and coupons of such series; and
48
provided, further, that in the case of any default or breach of the character
-------- -------
specified in clause (4) of Section 501 with respect to the Securities of such
series and any coupons appertaining thereto, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purposes of
this Section, the term "default" means any event which is, or after notice or
-------
lapse of time or both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
Section 315(a) through 315(d) of the Trust Indenture Act:
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee;
(2) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(3) any request or direction of the Operating Partnership mentioned
herein shall be sufficiently evidenced by an Operating Partnership Request
or Operating Partnership Order or of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (in each case,
other than delivery of any Security, together with any related Guarantee
and any coupons appertaining thereto, to the Trustee for authentication and
delivery pursuant to Section 303, which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Trustees shall be
sufficiently evidenced by a Board Resolution;
(4) whenever, in the administration of this Indenture, the Trustee
deems it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence is specifically prescribed herein) may, in the absence of bad
faith on its part, conclusively rely on an Operating Partnership
Certificate or, if such matter pertains to the Company, a Company
Certificate;
(5) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any coupons
appertaining thereto pursuant to this Indenture, unless such Holders have
offered to the Trustee reasonable security or indemnity against
49
the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(7) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee determines to make
such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Operating Partnership and the Company,
personally or by agent or attorney at the sole cost of the Operating
Partnership and shall incur as liability or additional liability of any
kind by reason of such inquiry or investigation;
(8) 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;
(9) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred on it by this
Indenture;
(10) the Trustee shall not be deemed to have knowledge of any event or
fact upon the occurrence of which it may be required to take action
hereunder unless it has actual knowledge thereof or unless written notice
of such event or fact is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this
Indenture;
(11) the Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
has reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it; and
(12) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in
each of its capacities hereunder, and to each agent, custodian and other
Person employed to act hereunder.
SECTION 603. Not Responsible for Recitals or Issuance of Securities. The
------------------------------------------------------
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, in any related Guarantees and in any coupons
shall be taken as the statements of the Operating Partnership or the Company (if
the Securities are Guaranteed Securities), as the case may be, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, any related Guarantees or
any coupons, except that the Trustee represents which it is duly authorized to
execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder. Neither the Trustee nor any Authenticating Agent shall
be accountable for the use or application by the Operating Partnership of
Securities or the proceeds thereof.
50
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
-------------------
Security Registrar, Authenticating Agent or any other agent of the Operating
Partnership or the Company, in its individual or any other capacity, may become
the owner or pledgee of Securities and coupons and, subject to Sections 310(b)
and 311 of the Trust Indenture Act, may otherwise deal with the Operating
Partnership or the Company with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other
agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on, or investment
of, any money received by it hereunder except as otherwise agreed with and for
the sole benefit of the Operating Partnership or the Company.
SECTION 606. Compensation and Reimbursement. The Operating Partnership
------------------------------
and the Company each agrees:
(1) to pay to the Trustee from time to time such compensation
as the Operating Partnership or the Company and the Trustee shall from time
to time agree in writing for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by it in
connection with its administration of the trust hereunder (including the
reasonable compensation and the 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
(3) to indemnify each of the Trustee and any predecessor Trustee and
their agents for, and to hold them harmless against, any loss, liability or
expense, arising out of or in connection with the acceptance or
administration of the trust or trusts or the performance of its duties
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder except to the extent any such loss,
liability or expense may be attributable to its own negligence or bad
faith.
As security for the performance of the obligations of the Operating
Partnership and the Company under this Section, the Trustee shall have a lien
prior to the Securities on all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (or
premium or Make-Whole Amount, if any, on) or interest or Additional Amounts, if
any, on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
51
SECTION 607. Trustee Eligibility; Conflicting Interests. There shall at
------------------------------------------
all times be a Trustee hereunder which is eligible to act as Trustee under
Section 310(a)(1) of the Trust Indenture Act and has a combined capital and
surplus of at least $50,000,000. If such Trustee publishes reports of condition
at least annually, pursuant to law or the requirements of Federal, State,
Territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such Trustee
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. No obligor on the Securities or
Affiliate of any such obligor shall serve as Trustee on such Securities. If at
any time the Trustee ceases to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Operating
Partnership and the Company (if the Securities of such series are
Guaranteed Securities). If an instrument of acceptance by a successor
Trustee has not been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Operating Partnership and the Company (if the Securities
of such series are Guaranteed Securities).
(d) If at any time:
(1) the Trustee fails to comply with the provisions of Section
310(b) of the Trust Indenture Act after written request therefor by
the Operating Partnership, the Company (if any of the Securities are
Guaranteed Securities) or any Holder of a Security who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee ceases to be eligible under Section 607 and fails
to resign after written request therefor by the Operating Partnership,
the Company (if any of the Securities are Guaranteed Securities) or
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
52
(3) the Trustee becomes incapable of acting or is adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property
is appointed or any public officer takes charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Operating Partnership or the Company (if
any of the Securities are Guaranteed Securities) by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of
a Security for at least six months may, on behalf of such Holder and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the
appointment of a successor Trustee or Trustees.
(e) If the Trustee resigns, is removed or becomes incapable of acting,
or if a vacancy occurs in the office of Trustee for any cause with respect
to the Securities of one or more series, the Operating Partnership and the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of such series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor
Trustee with respect to the Securities of any series is appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities
of such series delivered to the Operating Partnership, the Company (if the
Securities are of such series are Guaranteed Securities) and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect
to the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to
the Securities of any series has been so appointed by the Operating
Partnership, the Company (if the Securities of such series are Guaranteed
Securities) or the Holders of Securities and accepted appointment in the
manner hereinafter provided, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may, on
behalf of such Holder and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The Operating Partnership shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any
series and each appointment of a successor Trustee with respect to the
Securities of any series in the manner provided for notices to the Holders
of Securities in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
53
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Operating Partnership, the Company and the
retiring Trustee an instrument accepting such appointment, and, thereupon,
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on request of the Operating Partnership, the Company
or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Operating Partnership, the Company (if the Securities of any such series
are Guaranteed Securities), the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto, pursuant to Article Nine, wherein
each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as are necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
such series to which the appointment of such successor Trustee relates,
(ii) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as are necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of such series as to which the
retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (iii) shall add to or change any of the provisions of
this Indenture as are necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and, upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of such series to which the appointment of such successor
Trustee relates; but, on request of the Operating Partnership, the Company
(if the Securities of any such series are Guaranteed Securities) or any
successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of such series to
which the appointment of such successor Trustee relates.
54
(c) Upon request of any such successor Trustee, the Operating
Partnership and the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided that such
--------
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons have not been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any of
-----------------------------------
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Operating
Partnership and the Company (if the Securities of any such series are Guaranteed
Securities). Whenever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Operating Partnership and
the Company and, except as may otherwise be provided pursuant to Section 301,
shall at all times be a bank or trust company or corporation organized and doing
business and in good standing under the laws of the United States of America or
of any State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State or
District of Columbia authorities. If such Authenticating Agent publishes
55
reports of condition at least annually, pursuant to law or the requirements of
the aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
ceases to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
is a party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation is otherwise eligible under this
Section, without the execution or filing of any paper or further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Operating Partnership and the Company (if the Securities of such series are
Guaranteed Securities). The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Operating Partnership and
the Company (if the Securities of such series are Guaranteed Securities). Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent ceases to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Operating Partnership and
the Company and shall give notice of such appointment to all Holders of
Securities of or within the series with respect to which such Authenticating
Agent will serve in the manner set forth in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Operating Partnership and the Company each agrees to pay to each
Authenticating Agent from time to time reasonable compensation including
reimbursement of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
56
Dated: THE BANK OF NEW YORK,
as Trustee
By:_______________________________,
as Authenticating Agent
By:_______________________________
Authorized Officer
SECTION 612. Trustee's Application for Instructions from the Operating
Partnership or the Company.
Any application by the Trustee for written instructions from the Operating
Partnership or the Company may, at the option of Trustee, set forth in writing
any action proposed to be taken or omitted by the Trustee under this Indenture
and the date on and/or after which such action shall be taken or such omission
shall be effective. The Trustee shall not be liable for any action taken by,
or omission of, the Trustee in accordance with a proposal included in such
application on or after the date specified in such application (which date shall
not be less than three Business Days after the date any officer of the Operating
Partnership or the Company actually receives such application, unless any such
officer shall have consented in writing to any earlier date) unless prior to
taking any such action (or the effective date in the case of an omission), the
Trustee shall have received written instructions in response to such application
specifying the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE,
OPERATING PARTNERSHIP AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder
--------------------------------------------
of Securities, any related Guarantees or any coupons, by receiving and holding
the same, agrees with the Operating Partnership, the Company and the Trustee
that neither the Operating Partnership nor the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 312(b) of the Trust
Indenture Act.
SECTION 702. Reports by Trustee. Within 60 days after February 1 of each
------------------
year commencing with the first February 1 after the first issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in Section 313(c) of the Trust Indenture Act a brief
report dated as of such February 1 if required by Section 313(a) of the Trust
Indenture Act.
SECTION 703. Reports by Operating Partnership and Company. The Operating
--------------------------------------------
Partnership and the Company shall:
(1) file with the Trustee, within 15 days after the Operating
Partnership or the Company, as the case may be, is required to file the
same with the Commission, copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may by rules and regulations prescribe)
which the Operating Partnership or the Company, as the case may be, is
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act; or, if the Operating Partnership or the Company,
as the case may be, is not required to file information, documents or
reports pursuant to either of such Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and
57
regulations prescribed by the Commission, such of the supplementary and
periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed and
registered on a national securities exchange as may be prescribed in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed by the Commission, such additional information,
documents and reports with respect to compliance by the Operating
Partnership or the Company, as the case may be, with the conditions and
covenants provided for in this Indenture, as may be required by such rules
and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, such summaries of
any information, documents and reports required to be filed by the
Operating Partnership or the Company pursuant to subparagraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed by
the Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates).
SECTION 704. Operating Partnership and Company to Furnish Trustee Names
----------------------------------------------------------
and Addresses of Holders. The Operating Partnership and the Company (if the
------------------------
Securities of such series are Guaranteed Securities) shall furnish or cause to
be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of Registered Securities of such series as of such Regular Record
Date, or if there is no Regular Record Date for interest for such series of
Securities, semi-annually, on such dates as are set forth in the Board
Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Operating Partnership or the Company (if
the Securities of such series are Guaranteed Securities) of any such
request, a list of similar form and content as of a date not more than 15
days prior to the time such list is furnished;
provided, however, that, so long as the Trustee is the Security Registrar, no
-------- -------
such list shall be required to be furnished.
SECTION 705. Statement by Officers as to Default.
The Operating Partnership shall deliver to the Trustee, as soon as possible
and in any event within five days after the Operating Partnership becomes aware
of the occurrence of any Event of Default or an event which, with notice or the
lapse of time or both, would constitute an Event of Default, an Officers'
Certificate setting forth the details of such Event of Default or default and
the action which the Operating Partnership proposes to take with respect
thereto.
SECTION 706. Original Issue Discount.
The Operating Partnership shall provide to the Trustee on a timely basis
such information as the Trustee requires to enable the Trustee to prepare and
file any form required to be submitted by the Operating Partnership with the
Internal Revenue Service and the Holders of any Securities relating to original
issue discount, including, without limitation, Form 1099-OID or any successor
form.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations, Mergers, Sales, Leases and Conveyances of
---------------------------------------------------------
Operating Partnership Permitted Subject to Certain Conditions. The Operating
-------------------------------------------------------------
Partnership may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any
58
other Person, provided that in any such case, (i) either the Operating
Partnership shall be the continuing entity, or the successor entity (if other
than the Operating Partnership) shall be a Person organized and existing under
the laws of the United States or a State thereof and such successor entity
expressly assumes the due and punctual payment of the principal of (and premium
or Make-Whole Amount, if any, on) and interest and Additional Amounts, if any,
on all of the Securities, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Operating Partnership by supplemental
indenture, complying with Article Nine, satisfactory to the Trustee, executed
and delivered to the Trustee by such Person and (ii) immediately after giving
effect to such transaction and treating any indebtedness which becomes an
obligation of the Operating Partnership, the successor entity (if other than the
Operating Partnership) or any Subsidiary as a result thereof as having been
incurred by the Operating Partnership, such successor entity or such Subsidiary
at the time of such transaction, no Event of Default, and no event which, after
notice or the lapse of time, or both, would become an Event of Default, has
occurred and is continuing.
SECTION 802. Rights and Duties of Successor Entity. In case of any such
-------------------------------------
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor entity, such successor entity shall succeed to and be substituted
for the Operating Partnership, with the same effect as if it had been originally
named herein as the Operating Partnership, and the predecessor entity, except in
the event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor entity thereupon may cause to be
signed, and may issue either in its own name or in the name of the Operating
Partnership, any or all of the Securities issuable hereunder which theretofore
have not been signed by the Operating Partnership and delivered to the Trustee;
and, upon the order of such successor entity, instead of the Operating
Partnership, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously have been signed and delivered by the officers of
the Operating Partnership to the Trustee for authentication, and any Securities
which such successor entity thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities 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
Securities thereafter to be issued as may be appropriate.
SECTION 803. Operating Partnership Certificate and Opinion of Counsel.
--------------------------------------------------------
Any consolidation, merger, sale, lease or conveyance permitted under Section 801
is also subject to the condition that the Trustee receive an Operating
Partnership Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
59
Except as provided in Section 804, any consolidation, merger, sale, lease
or conveyance permitted under Section 801 is also subject to the condition that
the Trustee receive a Company Certificate and an Opinion of Counsel, each
stating that the Company's obligations hereunder shall remain in full force and
effect thereafter.
SECTION 804. Consolidations, Mergers, Sales, Leases and Conveyances of
---------------------------------------------------------
Company Permitted Subject to Certain Conditions. The Company may consolidate
-----------------------------------------------
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other Person, provided that in any such case, (i) either
the Company shall be the continuing entity, or the successor entity (if other
than the Company) shall be a Person organized and existing under the laws of the
United States or a State thereof and such successor entity expressly assumes the
obligations of the Company under the Guarantees and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture, complying
with Article Nine and, satisfactory to the Trustee, executed and delivered to
the Trustee by such Person and (ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company, the successor entity (if other than the Operating Partnership) or any
Subsidiary as a result thereof as having been incurred by the Company, such
successor entity or such Subsidiary at the time of such transaction, no Event of
Default, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, has occurred and is continuing.
SECTION 805. Rights and Duties of Successor Corporation. In case of any
------------------------------------------
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to and
be substituted for the Company, with the same effect as if it had been
originally named herein as the Company, and the predecessor entity, except in
the event of a lease, shall be relieved of any further obligation under this
Indenture and the Guarantees.
SECTION 806. Company Certificate and Opinion of Counsel. Any
------------------------------------------
consolidation, merger, sale, lease or conveyance permitted under Section 804 is
also subject to the condition that the Trustee receive a Company Certificate and
an Opinion of Counsel to the effect that any such consolidation, merger, sale,
lease or conveyance, and the assumption by any successor entity, complies with
the provisions of this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with.
SECTION 807. Assumption by Company. The Company, or a subsidiary thereof
---------------------
that is a corporation, may directly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium or Make-Whole Amount,
if any, on) and interest and Additional Amounts, if any, on all the Guaranteed
Securities and the performance of every covenant of this Indenture on the part
of the Operating Partnership to be performed or observed. Upon any such
assumption, the Company or such subsidiary shall succeed to and be substituted
for, and may exercise every right and power of, the Operating Partnership under
this Indenture with the same effect as if the Company or such subsidiary had
been named as the Operating Partnership herein
60
and the Operating Partnership shall be released from all obligations and
covenants with respect to the Guaranteed Securities. No such assumption shall be
permitted unless the Company has delivered to the Trustee (i) a Company
Certificate and an Opinion of Counsel, each stating that such assumption and
supplemental indenture comply with this Article, and that all conditions
precedent herein provided for relating to such transaction have been complied
with and that, in the event of assumption by a subsidiary, the Guarantees and
all other covenants of the Company herein remain in full force and effect and
(ii) an opinion of independent counsel that the Holders of Guaranteed Securities
or any coupons (assuming such Holders are only taxed as residents of the United
States) shall have no United States Federal tax consequences as a result of such
assumption and, if any Securities are then listed on the New York Stock
Exchange, that such Securities shall not be delisted as a result of such
assumption.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
--------------------------------------------------
the consent of any Holders of Securities or coupons, the Operating Partnership
and the Company, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another Person to the Operating
Partnership or the Company and the assumption by any such successor of the
covenants of the Operating Partnership or the Company, as the case may be,
contained herein and in the Securities or any related Guarantees, as the
case may be; or
(2) to add to the covenants of the Operating Partnership or the
Company for the benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely
for the benefit of such series) or to surrender any right or power herein
conferred on the Operating Partnership or the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); provided, however, that, in respect of any such
-------- -------
additional Events of Default, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of such series of
Securities to which such additional Events of Default apply to waive such
default; or
61
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of the principal of
(or premium or Make-Whole Amount, if any, on) or interest or Additional
Amounts, if any, on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
--------
affect the interests of the Holders of Securities of any series or any
coupons appertaining thereto in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
--------
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any
coupons appertaining thereto as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as are necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
hereof which may be defective or inconsistent with any other provision
hereof, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with
the provisions of this Indenture or to make any other changes, provided
--------
that, in each case, such provisions shall not adversely affect the
interests of the Holders of Securities of any series or any coupons
appertaining thereto in any material respect; or
(10) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the Trust Indenture Act; or
(11) to supplement any of the provisions of this Indenture to such
extent as is necessary to permit or facilitate the defeasance and discharge
of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that, in each case, any such action shall not adversely affect the
--------
interests of the Holders of Securities of such series and any coupons
appertaining thereto or any other series of Securities in any material
respect; or
62
(12) to effect the assumption by the Company or a subsidiary thereof
pursuant to Section 807.
SECTION 902. Supplemental Indentures with Consent of Holders. With the
-----------------------------------------------
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of such
Holders delivered to the Operating Partnership, the Company (if the Securities
of any such series are Guaranteed Securities) and the Trustee, the Operating
Partnership and the Company (when authorized by or pursuant to a Board
Resolution) and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities and coupons
under this Indenture; provided, however, that no such supplemental indenture
-------- -------
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of (or premium or
Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the
rate or amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium or Make-Whole Amount payable upon the
redemption thereof, or change any obligation of the Operating Partnership
to pay Additional Amounts pursuant to Section 1010 (except as contemplated
by clause (1) of Section 801 and permitted by clause (1) of Section 901),
or reduce the amount of the principal of an Original Issue Discount
Security or Make-Whole Amount, if any, which would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section 504;
or adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in
which, the principal of any Security or any premium or Make-Whole Amount or
any Additional Amounts payable in respect thereof or the interest thereon
is payable; or impair the right to institute suit for the enforcement of
any such payment on or after the Stated Maturity thereof (or, in the case
of redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of the Holders of which is required
for any such supplemental indenture, or the consent of the Holders of which
is required for any waiver with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and
their consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting;
(3) modify or affect in any manner adverse to the Holders the terms
and conditions of the obligations of the Company under the related
Guarantees in respect of the due and punctual payments of the principal of
(or premium or Make-Whole Amount, if any, on) or interest or Additional
Amounts, if any, on any Guaranteed Securities; or
63
(4) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act approves the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included for the benefit of
one or more particular series of Securities, or which modifies the rights of the
Holders of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying on, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution of
---------------------------------
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Operating Partnership so
determines, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Operating Partnership, to any such supplemental
indenture may be prepared and executed by the Operating Partnership and
authenticated and delivered by the Trustee (and, if such Securities are
Guaranteed Securities, with the related Guarantees endorsed thereon) in exchange
for Outstanding Securities of such series.
64
SECTION 907. Notice of Supplemental Indentures. Promptly after the
---------------------------------
execution by the Operating Partnership, the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Operating
Partnership shall give notice thereof to the Holders of each Outstanding
Security affected, in the manner provided for in Section 106, setting forth in
general terms the substance of such supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
--------------------------------------------------
Interest and Additional Amounts. The Operating Partnership covenants and agrees
-------------------------------
for the benefit of the Holders of each series of Securities that it shall duly
and punctually pay the principal of (and premium or Make-Whole Amount, if any,
on) and interest and Additional Amounts, if any, on the Securities of such
series in accordance with the terms of such series of Securities, any coupons
appertaining thereto and this Indenture. Unless otherwise specified as
contemplated by Section 301 with respect to any series of Securities, any
interest and Additional Amounts, if any, on Bearer Securities on or before
Maturity, other than Additional Amounts, if any, payable as provided in Section
1010 in respect of principal of (or premium or Make-Whole Amount, if any, on)
such a Security, shall be payable only upon presentation and surrender of the
several coupons for such interest installments as are evidenced thereby as they
severally mature. Unless otherwise specified with respect to Securities of any
series pursuant to Section 301, at the option of the Operating Partnership, all
payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a series
-------------------------------
are issuable only as Registered Securities, the Operating Partnership and the
Company (if the Securities of any such series are Guaranteed Securities) shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of such series may be presented or surrendered for
payment, where Securities of such series may be surrendered for registration of
transfer or exchange and where notices and demands to or on the Operating
Partnership or the Company (if the Securities of any such series are Guaranteed
Securities) in respect of the Securities of such series and any related
Guarantees and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Operating Partnership and the Company (if
Guaranteed Securities) shall maintain: (i) in the city of London, England, an
office or agency where any Registered Securities of such series may be presented
or surrendered for payment, where any Registered Securities of such series may
be surrendered for exchange, where notices and demands to or on the Operating
Partnership or the Company in respect of the Securities of such series and this
Indenture may be served and where Bearer Securities of such series and any
coupons appertaining thereto may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise); (ii)
subject to any laws or regulations applicable thereto, in a Place of Payment for
such series which is located outside the United States, an office or agency
where Securities of such series and any coupons
65
appertaining thereto may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Securities of such series pursuant
to Section 1010); provided, however, that if the Securities of such series are
-------- -------
listed on the Luxembourg Stock Exchange, The International Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
so requires, the Operating Partnership and the Company (if the Securities of any
such series are Guaranteed Securities) shall maintain a Paying Agent for the
Securities of such series in Luxembourg, London or any other required city
located outside the United States, as the case may be, so long as the Securities
of such series are listed on such exchange; and (iii) subject to any laws or
regulations applicable thereto, in a Place of Payment for such series located
outside the United States an office or agency where any Securities of such
series may be surrendered for registration of transfer, where Securities of such
series may be surrendered for exchange and where notices and demands to or on
the Operating Partnership in respect of the Securities of such series and this
Indenture may be served. The Operating Partnership or the Company (if the
Securities of any such series are Guaranteed Securities) will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Operating Partnership or the
Company fails to maintain any such required office or agency or fails to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Bearer Securities of such series pursuant to Section 1010) at
the offices specified in the Security, in London, England, and the Operating
Partnership and the Company hereby appoint the same as its agent to receive all
such presentations, surrenders, notices and demands, and the Operating
Partnership and the Company hereby appoint the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of the principal of (or premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on Bearer Securities shall
be made at any office or agency of the Operating Partnership or the Company in
the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided, however, that, if the Securities of a series are payable in Dollars,
-------- -------
payment of the principal of (and premium and Make-Whole Amount, if any, on) and
interest and Additional Amounts; if any, on any Bearer Security shall be made at
the office of the Operating Partnership's Paying Agent in the city of London,
England, if (but only if) payment in Dollars of the full amount of such
principal, premium, Make-Whole Amount, interest or Additional Amounts, as the
case may be, at all offices or agencies outside the United States maintained for
the purpose by the Operating Partnership in accordance with this Indenture, is
illegal or effectively precluded by exchange controls or other similar
restrictions.
The Operating Partnership or the Company (if the Securities of any such
series are Guaranteed Securities) may from time to time designate one or more
other offices or agencies where the Securities of one or more series and any
coupons appertaining thereto, may be presented or surrendered for any or all of
such purposes, and may from time to time rescind
66
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Operating Partnership or the Company (if the
Securities of any such series are Guaranteed Securities) of its obligation to
maintain an office or agency in accordance with the requirements set forth above
for Securities of any series for such purposes. The Operating Partnership or the
Company (if the Securities of any such series are Guaranteed Securities) will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities pursuant to Section 301, the
Operating Partnership and the Company each hereby designates as a Place of
Payment for each series of Securities the office or agency of the Operating
Partnership or the Company (if the Securities of any such series are Guaranteed
Securities), as the case may be, in The city of New York, New York and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent in
such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Operating
Partnership will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the
-------------------------------------------------
Operating Partnership at any time acts as its own Paying Agent with respect to
any series of any Securities and any coupons appertaining thereto, it shall, on
or before each due date of the principal of (and premium or Make-Whole Amount,
if any, on) or interest or Additional Amounts, if any, on any of the Securities
of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (and premium or Make-
Whole Amount, if any) or interest or Additional Amounts, if any, so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and shall promptly notify the Trustee of its action or failure so to
act.
Whenever the Operating Partnership shall have one or more Paying Agents for
any series of Securities and any coupons appertaining thereto, it shall, on or
before each due date of the principal of (and premium or Make-Whole Amount, if
any, on) or interest or Additional Amounts, if any, on any Securities of such
series, deposit with a Payment Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium or Make-Whole
Amount, if any) or interest or Additional Amounts, if any, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, Make-Whole Amount, interest or Additional Amounts and
(unless such Paying Agent is the Trustee) the Operating Partnership shall
promptly notify the Trustee of its action or failure so to act.
67
The Operating Partnership shall cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any, on) or interest or Additional
Amounts, if any, on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(2) give the Trustee notice of any default by the Operating
Partnership or the Company (or any other obligor or guarantor on the
Securities) in the making of any such payment of principal (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts, if any; and
(3) at any time during the continuance of any such default, on the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Operating Partnership or the Company (with respect to any series of
Guaranteed Securities) may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Operating Partnership Order or Company Order, as the case may be, direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Operating
Partnership or such Paying Agent, such sums to be held by the Trustee on the
same trusts as those on which such sums were held by the Operating Partnership
or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Operating
Partnership, in trust for the payment of the principal of (and premium or Make-
Whole Amount, if any, on) or interest or Additional Amounts, if any, on any
Security of any series and remaining unclaimed for two years after such
principal (and premium or Make-Whole Amount, if any) interest or Additional
Amounts, if any, has become due and payable shall be paid to the Operating
Partnership upon Operating Partnership Request (or if deposited by the Company,
to the Company upon Company Request), or (if then held by the Operating
Partnership) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Operating Partnership and the Company (if the Securities of such series are
Guaranteed Securities) for payment of the principal of (and premium or Make-
Whole Amount, if any, on) and interest and any Additional Amounts, if any, on
any Security of such series, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Operating Partnership as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
-------- -------
to make any such repayment, may at the expense of the Operating Partnership or
the Company cause to be published once, in an Authorized Newspaper, notice that
such money remains unclaimed and
68
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Operating Partnership or the Company, as the case may be.
SECTION 1004. Existence. Subject to Article Eight, each of the Operating
---------
Partnership and the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect the existence, rights (charter and
statutory) and franchises of itself and its Subsidiaries; provided, however,
-------- -------
that neither the Operating Partnership nor the Company shall be required to
preserve any right or franchise if the Board of Trustees shall determine that
the preservation thereof is no longer desirable in the conduct of its business
as a whole and that the loss thereof is not disadvantageous in any material
respect to the Holders of Securities of any series.
SECTION 1005. Maintenance of Properties. Each of the Operating
-------------------------
Partnership and the Company shall cause all of its properties used or useful in
the conduct of its business or the business of any Subsidiary to be maintained
and kept in good condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Operating Partnership and the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
-------- -------
Operating Partnership, the Company or any Subsidiary from selling or otherwise
disposing for value its properties in the ordinary course of its business.
SECTION 1006. Insurance. Each of the Operating Partnership and the
---------
Company shall, and shall cause each of its respective Subsidiaries to, keep all
of its insurable properties insured against loss or damage at least equal to
their then full insurable value with financially sound and reputable insurance
companies.
SECTION 1007. Payment of Taxes and Other Claims. Each of the Operating
---------------------------------
Partnership and the Company shall pay or discharge or cause to be paid or
discharged, before the same become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon it or any Subsidiary or on the
income, profits or property of it or any Subsidiary and (ii) all lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
on the property of it or any Subsidiary; provided, however, that neither the
-------- -------
Operating Partnership nor the Company shall be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 1008. Provision of Financial Information. Whether or not the
----------------------------------
Operating Partnership or the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Operating Partnership and the Company shall, to the extent
permitted under the Exchange Act, file with the Commission the annual reports,
quarterly reports and other documents which they would have been required to
file with the Commission pursuant to such Section 13 or 15(d) (the
69
"Financial Statements") if they were so subject, such documents to be filed with
--------------------
the Commission on or prior to the respective dates (the "Required Filing Dates")
---------------------
by which they would have been required so to file such documents if they were so
subject.
The Operating Partnership and the Company shall also in any event (i)
within 30 days of each Required Filing Date (A) transmit by mail to all Holders,
as their names and addresses appear in the Security Register, without cost to
such Holders, copies of the annual reports and quarterly reports which the
Operating Partnership and the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if they were
subject to such Sections and (B) file with the Trustee copies of annual reports,
quarterly reports and other documents which the Operating Partnership and the
Company would have been required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act if they were subject to such Sections and (ii)
if filing such documents by the Operating Partnership and the Company with the
Commission is not permitted under the Exchange Act, promptly upon written
request and payment of the reasonable cost of duplication and delivery, supply
copies of such documents to any prospective Holder.
SECTION 1009. Statement as to Compliance. Each of the Operating
--------------------------
Partnership and the Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Operating Partnership's or the Company's, as the case may be,
compliance with all conditions and covenants under this Indenture verified in
the case of conditions precedent compliance with which is subject to
verification by accountants by the certificate or opinion of an accountant and,
in the event of any noncompliance, specifying such noncompliance and the nature
and status thereof. For purposes of this Section 1009, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Indenture.
SECTION 1010. Additional Amounts. If any Securities of a series provide
------------------
for the payment of Additional Amounts, the Operating Partnership and the Company
(if the Securities are Guaranteed Securities) each covenants and agrees for the
benefit of the Holders of Securities to pay to the Holder of any Security of
such series or any coupon appertaining thereto Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context except in the case of clause (1) of Section 502, the
payment of the principal of or of any premium, Make-Whole Amount or interest on,
or in respect of, any Security of any series or payment of any coupon or the net
proceeds received on the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided by the terms of such series established pursuant to Section 301 to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
70
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to Securities of
such series (or if the Securities of such series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or Make-Whole Amount or interest, if there has been any change with
respect to the matters set forth in the below-mentioned Operating Partnership
Certificate or Company Certificate, the Operating Partnership or the Company, as
the case may be, shall furnish the Trustee and the principal Paying Agent or
Paying Agents, if other than the Trustee, with an Operating Partnership
Certificate or Company Certificate, as the case may be, instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of and
any premium or Make-Whole Amount or interest on the Securities of such series
shall be made to Holders of Securities of such series or any coupons
appertaining thereto who are not United States persons without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of or within the series. If any such withholding is required,
then such Operating Partnership Certificate or Company Certificate, as the case
may be, shall specify by country the amount, if any, required to be withheld on
such payments to such Holders of Securities of such series or any coupons
appertaining thereto and the Operating Partnership and the Company (if the
Securities of such series are Guaranteed Securities) each agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of such series or any coupons appertaining thereto
until it has received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of such series
or any coupons appertaining thereto without withholding or deductions until
otherwise advised. The Operating Partnership and the Company each covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them or in reliance on any Operating Partnership Certificate
of Company Certificate furnished pursuant to this Section or in reliance on the
Operating Partnership's or the Company's not furnishing such an Operating
Partnership Certificate or Company Certificate, as the case may be.
SECTION 1011. Waiver of Certain Covenants. The Operating Partnership or
---------------------------
the Company, as the case may be, may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 1004 to 1008,
inclusive, and with any other term, provision or condition with respect to the
Securities of any series specified in accordance with Section 301 (except any
such term, provision or condition which could not be amended without the consent
of all Holders of Securities of such series pursuant to Section 902), if before
or after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities of such series, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such
71
waiver shall extend to or affect such covenant or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Operating Partnership and the Company and the duties of the
Trustee in respect of any such term, provision or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which
------------------------
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
-------------------------------------
Operating Partnership to redeem any Securities shall be evidenced by or pursuant
to a Board Resolution. In case of any redemption at the election of the
Operating Partnership of less than all of the Securities of any series, the
Operating Partnership shall, at least 45 days prior to the giving of the notice
of redemption in Section 1104 (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Operating Partnership shall furnish the Trustee with an Operating
Partnership Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less
-------------------------------------------------
than all the Securities of any series issued on the same day with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee deems fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of such
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of such series.
The Trustee shall promptly notify the Operating Partnership, the Company
(if the Securities of such series are Guaranteed Securities) and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
72
SECTION 1104. Notice of Redemption. Notice of redemption shall be given
--------------------
in the manner provided in Section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice which is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, on surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(5) that on the Redemption Date, the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable on each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after such date;
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any;
(7) that the redemption is for a sinking fund, if such is the case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons appertaining thereto maturing subsequent to the
date fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price,
73
unless security or indemnity satisfactory to the Operating Partnership, the
Company (if the Securities of such series are Guaranteed Securities), the
Trustee for such series and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
the redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Operating Partnership, on
which such exchanges may be made; and
(10) the CUSIP number of such Security, if any, provided that neither
the Operating Partnership or the Trustee shall have any responsibility for
any such CUSIP number.
Notice of redemption of Securities to be redeemed shall be given by the
Operating Partnership or, at the Operating Partnership's request, by the Trustee
in the name and at the expense of the Operating Partnership.
SECTION 1105. Deposit of Redemption Price. On or prior to any Redemption
---------------------------
Date, the Operating Partnership shall deposit with the Trustee or with a Paying
Agent (or, if the Operating Partnership is acting as its own Paying Agent, which
it may not do in the case of a sinking fund payment under Article Twelve,
segregate and hold in trust as provided in Section 1003) an amount of money in
the currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except if
the Redemption Date is an Interest Payment Date) accrued interest on, all the
Securities or portions thereof which are to be redeemed on such date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as provided above, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Operating Partnership
defaults in the payment of the Redemption Price and accrued interest) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with such notice, together with
any coupons appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Operating Partnership at the Redemption Price,
together with accrued interest, if any, to the Redemption Date; provided,
--------
however, that installments of interest on Bearer Securities whose Stated
-------
Maturity is on or prior to the Redemption Date shall be payable only at an
office or agency located outside
74
the United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided, further, that,
-------- -------
installments of interest on Registered Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Securities,
or one or more Predecessor Securities, registered as such at the close of
business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption is not accompanied by all
coupons appertaining thereto maturing after the Redemption Date, such Security
may be paid after deducting from the Redemption Price an amount equal to the
face amount of all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Operating Partnership and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such
Security surrenders to the Trustee or any Paying Agent any such missing coupon
in respect of which a deduction has been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided, however,
-------- -------
that interest represented by a coupon shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of such coupon.
If any Security called for redemption is not so paid upon surrender thereof
for redemption, the principal (and premium or Make-Whole Amount, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part. Any Security which is to be
---------------------------
redeemed only in part (pursuant to the provisions of this Article or of Article
Twelve) shall be surrendered at a Place of Payment therefor (with, if the
Operating Partnership or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Operating Partnership
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Operating Partnership shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities of the same series (and, if such
Security is a Guaranteed Security, with the related Guarantee endorsed thereon),
of any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
------------------------
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
75
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
----------------------
payment," and any payment in excess of such minimum amount provided for by the
-------
terms of such Securities of any series is herein referred to as an "optional
--------
sinking fund payment." If provided for by the terms of any Securities of any
--------------------
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
-----------------------------------------------------
Operating Partnership may, in satisfaction of all or any part of any mandatory
sinking fund with respect to the Securities of a series, (i) deliver Outstanding
Securities of such series (other than any Securities previously called for
redemption), together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto, and (ii) apply as a credit
Securities of such series which have been redeemed either at the election of the
Operating Partnership pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by the Operating Partnership, provided that such
--------
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than
-----------------------------------------
60 days prior to each sinking payment date for Securities of any series, the
Operating Partnership shall deliver to the Trustee an Operating Partnership
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for such series pursuant to the terms of such series, the portion
thereof, if any, which is to be satisfied by payment of cash in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) and the portion
thereof, if any, which is to be satisfied by delivering and crediting Securities
of such series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and shall also
deliver to the Trustee any Securities to be so delivered and credited. If such
Operating Partnership Certificate specifies an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Operating
Partnership shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed on such sinking fund payment date in
the manner specified in Section 1103 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Operating Partnership in
the manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
76
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
------------------------
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, that provide such
option to the Holders thereof and (except as otherwise specified by the terms of
such series established pursuant to Section 301) in accordance with this
Article.
SECTION 1302. Repayment of Securities. Securities of any series subject
-----------------------
to repayment in whole or in part at the option of the Holders thereof shall,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Operating Partnership covenants that on or before the Repayment
Date it shall deposit with the Trustee or with a Paying Agent (or, if the
Operating Partnership is acting as it own Paying Agent, the Operating
Partnership shall segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date is an Interest Payment Date) accrued interest
on, all the Securities or portions thereof, as the case may be, to be repaid on
such date.
SECTION 1303. Exercise of Option. Securities of any series subject to
------------------
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Operating Partnership shall from time to time notify the
Holders of such Securities), not earlier than 60 days nor later than 30 days
prior to the Repayment Date, (i) the Security to be so repaid together with the
"Option to Elect Repayment" form on the reverse thereof duly completed by the
Holder (or by the Holder's attorney thereunto duly authorized in writing) or
(ii) a facsimile transmission or letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc., or a
commercial bank or trust company in the United States setting forth the name of
the Holder of the Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security to be
repaid, together with the duly completed "Option to Elect Repayment" form on the
reverse of the Security, will be received by the Trustee not later than the
fifth Business Day after the date of such facsimile transmission or letter;
provided, however, that such facsimile transmission or letter shall only
-------- -------
be effective if such Security and duly completed form are received by the
Trustee by such fifth Business Day. If less than the entire principal amount of
such Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid,
77
in increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered
which is not to be repaid, must be specified. The principal amount of any
Security providing for prepayment at the option of the Holder thereof may not be
repaid in part if, following such repayment, the unpaid principal amount of such
Security would be less than the minimum authorized denomination of Securities of
or within the series of which such Security to be repaid is a part. Except as
may be provided by the terms of any Security providing for repayment at the
option of the Holder thereof, exercise of the repayment option by the Holder
shall be irrevocable unless waived by the Operating Partnership.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
-------
the Holders thereof have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portions thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Operating Partnership on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Operating
Partnership defaults in the payment of such Securities on such Repayment Date)
such Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with any coupons appertaining thereto maturing after the Repayment Date, the
principal amount of such security so to be repaid shall be paid by the Operating
Partnership, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
-------- -------
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided, further, that, in the case of
-------- -------
Registered Securities, installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable (but without interest
thereon, unless the Operating Partnership defaults in the payment thereof) to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment is not accompanied by all
coupons appertaining thereto maturing after the Repayment Date, such Security
may be paid after deducting from the amount payable therefor as provided in
Section 1302 an amount equal to the face amount of all such missing coupons, or
the surrender of such missing coupon or coupons may be waived by the Operating
Partnership and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security surrenders to the Trustee
or any Paying Agent any such missing coupon in respect of which a deduction has
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, however, that interest represented
-------- -------
by a coupon shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of such coupon.
78
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Operating
Partnership shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge and at the expense of the
Operating Partnership, a new Registered Security or Securities of the same
series (and, if such Registered Security is a Guaranteed Security, with the
related Guaranteed endorsed thereon), of any authorized denomination specified
by the Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Operating Partnership's Option to
-----------------------------------------------------------
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
----------------------------------------
provision is made for either or both of (i) defeasance of the Securities of or
within a series under Section 1402 or (ii) covenant defeasance of the Securities
of or within a series under Section 1403 to be applicable to the Securities of
any series, then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Operating Partnership may at its option by Board Resolution, at
any time, with respect to such Securities and any coupons appertaining thereto,
elect to defease such Outstanding Securities and any coupons appertaining
thereto pursuant to Section 1402 (if applicable) or Section 1403 (if applicable)
upon compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the Operating Partnership's
------------------------
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Operating Partnership and, if applicable,
the Company shall be deemed to have been discharged from their obligations with
respect to such Outstanding Securities and any coupons appertaining thereto on
the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Operating
-----------
Partnership shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any coupons appertaining thereto,
which shall thereafter be deemed "Outstanding" only for the purposes of Section
1405 and the other Sections of this Indenture referred to in clauses (i) and
(ii) below, and to have satisfied all of its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Operating Partnership, shall execute proper
instruments acknowledging the same), except for the
79
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium or Make-Whole Amount, if any, on) and interest and
Additional Amounts, if any, on such Securities and any coupons appertaining
thereto when such payments are due; (ii) the Operating Partnership and, if
applicable, the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1010; (iii) the
rights, powers, trusts, duties and immunities of the Trustee hereunder; and (iv)
this Article. Subject to compliance with this Article Fourteen, the Operating
Partnership may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 1403 with respect to such Securities and
any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Operating Partnership's
-------------------
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Operating Partnership and, if applicable,
the Company shall be released from their obligations under Sections 1004 to
1008, inclusive, and, if specified pursuant to Section 301, their obligations
under any other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
-------------------
Securities and any coupons appertaining thereto shall thereafter be deemed not
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
Sections 1004 to 1008, inclusive, or such other covenant, but shall continue to
be deemed "Outstanding" for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to such Outstanding Securities
and any coupons appertaining thereto, the Operating Partnership and, if
applicable, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a default or an Event of Default under clause (4) or (8) of Section 501 or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities, any related Guarantees and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Operating Partnership or the Company (if the Securities of
such series are Guaranteed Securities) shall have irrevocably deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the provisions
of this Article Fourteen applicable to it) funds in trust for the purpose
of making the following payments, specifically pledged as security
80
for, and dedicated solely to, the benefit of the Holders of such Securities
and any coupons appertaining thereto: (i) an amount in such currency or
currencies, currency unit or units, or composite currency or currencies in
which such Securities and any coupons appertaining thereto are then
specified as payable at Stated Maturity, or (ii) Government Obligations
applicable to such Securities and any coupons appertaining thereto
(determined on the basis of the currency or currencies, currency unit or
units, or composite currency or currencies in which such Securities and any
coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium or
Make-Whole Amount, if any, on) and interest and Additional Amounts, if any,
on such Securities and any coupons appertaining thereto, money in an
amount, or (iii) a combination thereof in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (A) the principal of (and premium
or Make-Whole Amount, if any, on) and interest and Additional Amounts, if
any, on such Outstanding Securities and any coupons appertaining thereto on
the Stated Maturity of such principal or installment of principal or
interest and (B) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Securities and any coupons
appertaining thereto, provided that the Trustee has been irrevocably
--------
instructed to apply such money or the proceeds of such Government
Obligations to such payments with respect to such Securities. Before such a
deposit, the Operating Partnership may give to the Trustee, in accordance
with Section 1102, a notice of its election to redeem all or any portion of
such Outstanding Securities at a future date in accordance with the terms
of the Securities of such series and Article Eleven, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given
effect in applying the foregoing.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Operating
Partnership or the Company (if the Securities of such series are Guaranteed
Securities) is a party or by which it is bound (and shall not cause the
Trustee to have a conflicting interest pursuant to Section 310(b) of the
Trust Indenture Act with respect to any Security of the Operating
Partnership).
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and
any coupons appertaining thereto has occurred and is continuing on the date
of such deposit or, insofar as clauses (7) and (8) of Section 501 are
concerned, at any time during the period ending
81
on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).
(d) In the case of an election under Section 1402, the Operating
Partnership or the Company (if the Securities of such series are Guaranteed
Securities) has delivered to the Trustee an Opinion of Counsel stating that
(i) the Operating Partnership or the Company, as the case may be, has
received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of execution of this Indenture, there has
been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as
a result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Operating
Partnership or the Company (if the Securities of such series are Guaranteed
Securities) has delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Operating Partnership or the Company (if the Securities of
such series are Guaranteed Securities) has delivered to the Trustee an
Operating Partnership Certificate or Company Certificate, as the case may
be, and an Opinion of Counsel, each stating that all conditions precedent
to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
paragraph (a) above and the related exercise of the Operating Partnership's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Operating Partnership or the Company, as the case may be,
with respect to the trust funds representing such deposit or by the Trustee
for such trust funds or (ii) all necessary registrations under such Act
have been effected.
(g) After the 91st day following the deposit, the trust funds will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Operating Partnership or the Company in connection therewith
pursuant to Section 301.
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SECTION 1405. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
-------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee) pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee
or such other qualifying trustee, in accordance with the provisions of such
Securities and any coupons appertaining thereto and this Indenture, to the
payment, either directly or through any Paying Agent (including the Operating
Partnership acting as its own Paying Agent) as the Trustee or such other
qualifying trustee may determine, to the Holders of such Securities and any
coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, if, after a deposit referred to in Section 1404(a) has been made, (i) the
Holder of a Security in respect of which such deposit was made is entitled to,
and does, elect pursuant to Section 301 or the terms of such Security to receive
payment in a currency, currency unit or composite currency other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security or (ii) a Conversion Event occurs in respect of the currency, currency
unit or composite currency in which the deposit pursuant to Section 1404(a) has
been made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully discharged
and satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any, on), and interest and Additional Amounts, if any, on such
Security as the same become due out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the currency, currency
unit or composite currency in which such Security becomes payable as a result of
such election or Conversion Event based on the applicable market exchange rate
for such currency, currency unit or composite currency in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such currency, currency unit or composite currency in effect (as
nearly as feasible) at the time of the Conversion Event.
The Operating Partnership or the Company, as the case may be, shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 1404
or the principal and interest received in respect thereof other than any such
tax, fee or other charge which by law is for the account of the Holders of such
Outstanding Securities and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee or
such other qualifying trustee shall deliver or pay to the Operating Partnership
or the Company, as the case may be, from time to time upon Operating Partnership
Request or Company Request, as the case may be, any money or Government
Obligations (or other property and any proceeds therefrom) held by it as
provided in Section 1404 which, in the opinion of a nationally recognized firm
of
83
independent public accountants expressed in a written certification thereof
delivered to the Trustee or such other qualifying trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
-----------------------------------------
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in The city of New York, New York, as
the Trustee determines. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Operating Partnership, pursuant to a Board
Resolution, the Company (if the Securities of such series are Guaranteed
Securities), pursuant to a Board Resolution, or the Holders of at least 10%
in principal amount of the Outstanding Securities of any series have
requested the Trustee to call a meeting of the Holders of Securities of
such series for any purpose specified in Section 1501, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee has not made the first publication of the notice
of such meeting within 21 days after receipt of such request or does not
thereafter proceed to cause the meeting to be held as provided herein, then
the Operating Partnership, the Company (if the Securities of such series
are Guaranteed Securities) or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and
the place in The city of New York, New York for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
paragraph (a) above.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
------------------------------------
vote at any meeting of Holders of Securities of any series, a Person shall be
(i) a Holder of one or more Outstanding Securities of such series or (ii) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any
84
meeting of Holders of Securities of any series are the Persons entitled to vote
at such meeting and their counsel, any representatives of the Trustee and its
counsel, any representatives of the Operating Partnership and its counsel, and
any representatives of the Company and its counsel (if the Securities of such
series are Guaranteed Securities).
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
--------------
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
-------- -------
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the
time appointed for any such meeting, the meeting shall, if convened at the
request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount of
the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of such series; provided,
--------
however, that, except as limited by the proviso to Section 902, any resolution
-------
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in principal amount of the Outstanding Securities of a series may be
adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in principal amount of the Outstanding Securities of such
series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and any coupons
appertaining thereto, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand,
85
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Securities affected
thereby, or of the Holders of such series and one or more additional series;
(1) there shall be no minimum quorum requirement for such meeting;
and
(2) the principal amount of the Outstanding Securities of such
series which vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
deems appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104 or by having the signature of the
Person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 104 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting has been called by the
Operating Partnership, the Company or by Holders of Securities as provided
in Section 1502(b), in which case the Operating Partnership, the Company or
the Holders of Securities of or within the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by such Holder;
provided, however, that no vote shall be cast or counted at any meeting in
-------- -------
respect of any Security challenged as not
86
Outstanding and ruled by the chairman of the meeting to be not Outstanding.
The chairman of the meeting shall have no right to vote, except as a Holder
of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings. The vote
-----------------------------------------------
on any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and series numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any series shall be prepared by the
secretary of the meeting and there shall be attached to such record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that such notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Operating Partnership
and to the Company (if the Securities of such series are Guaranteed Securities)
and another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any request, demand,
-----------------------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by a specified percentage in principal
amount of the Holders of any or all series may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such specified
percentage of Holders in person or by agent duly appointed in writing; and,
except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to the Trustee.
Proof of execution of any instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Article
Six) conclusive in favor of the Trustee, the Operating Partnership and the
Company, if made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject to Article Six,
---------------------------------
the execution of any instrument by a Holder or his agent or proxy may be proved
in accordance with
87
such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee.
ARTICLE SIXTEEN
GUARANTEE
SECTION 1601. Guarantee. A Guarantee shall only be in effect with
---------
respect to Securities of a series when such Guarantee is made applicable to such
series in accordance with Section 301 and such Guarantee is duly executed in
accordance with Section 303. The Company hereby unconditionally guarantees to
each Holder of a Guaranteed Security authenticated and delivered by the Trustee
the due and punctual payment of the principal of (and premium and Make-Whole
Amount, if any, on) and interest and Additional Amounts, if any, on such
Guaranteed Security and the due and punctual payment of the sinking fund
payments, if any, provided for pursuant to the terms of such Guaranteed
Security, when and as the same shall become due and payable, whether at
maturity, upon acceleration, redemption, repayment or otherwise, in accordance
with the terms of such Security and of this Indenture. In case of the failure of
the Operating Partnership punctually to pay any such principal, premium, Make-
Whole Amount, interest, Additional Amounts or sinking fund payment, the Company
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at maturity, upon acceleration,
redemption, repayment or otherwise, and as if such payment were made by the
Operating Partnership.
The Company hereby agrees that its obligations hereunder and under any
Guarantee shall be as principal and not merely as surety, and shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Guaranteed Security or this
Indenture, any failure to enforce the provisions of any Guaranteed Security or
this Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Operating Partnership or any action to
enforce the same, or any other circumstances which may otherwise constitute a
legal or equitable discharge of a surety or guarantor. The Company hereby
waives diligence, presentment, demand of payment, filing of claims with a court
in the event of merger, insolvency or bankruptcy of the Operating Partnership,
any right to require a proceeding first against the Operating Partnership,
protest or notice with respect to any such Guaranteed Security or the
indebtedness evidenced thereby and all demands whatsoever, and covenants that
the Guarantees will not be discharged except by payment in full of the principal
of (and premium and Make-Whole Amount, if any, on) and interest and Additional
Amounts, if any, on and sinking fund payments, if any, required with respect to,
the Guaranteed Securities and the complete performance of all other obligations
contained in the Guaranteed Securities.
The Guarantees shall continue to be effective or be reinstated, as the case
may be, if at any time payment on any Guaranteed Security, in whole or in part,
is rescinded or must otherwise be restored to the Operating Partnership or the
Company upon the bankruptcy, liquidation or reorganization of the Operating
Partnership or the Company or otherwise.
88
The Company shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Operating Partnership in respect of any amounts
paid to such Holder by the Company pursuant to the provisions of the Guarantees;
provided, however, that the Company shall not be entitled to enforce, or to
-----------------
receive any payments arising out of or based upon, such right of subrogation
until the principal of (and premium and Make-Whole Amount, if any, on) and
interest and Additional Amounts, if any, on and sinking fund payments, if any,
required with respect to, all Guaranteed Securities shall have been paid in
full.
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, as of the day and year first above written.
CABOT INDUSTRIAL PROPERTIES, L.P.,
As Issuer
By: CABOT INDUSTRIAL TRUST,
As General Partner
By: ______________________________________
[Name]
[Title]
CABOT INDUSTRIAL TRUST,
As Guarantor
By: ______________________________________
[Name]
[Title]
THE BANK OF NEW YORK
As Trustee
By: ______________________________________
[Name]
[Title]
90
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) which are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) which are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
advise [_______________________________] or its agent that such financial
institution will provide a certificate within a reasonable time stating that it
agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by a financial institution for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, such financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), certifies that it has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not
91
correct on such date, and in the absence of any such notification it may be
assumed that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] _______________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _____________________, ____
[To be dated no earlier than the 15th day prior
to the earlier of (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Name of Person Making
Certification]
_____________________________________
(Authorized Signatory)
Name:
Title:
92
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _______________
principal amount of the above-captioned Securities (i) is owned by person(s)
which are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States persons(s) which are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise
[_____________________________] or its agent that such financial institution
will provide a certificate within a reasonable time stating that it agrees to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by a financial institution for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and that such financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations
A-1
with respect to any portion of the part submitted herewith for exchange (or, if
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _____________________, 19__
[To be dated no earlier than the earlier of
the Exchange Date or the relevant Interest
Payment Date occurring prior to the Exchange
Date, as applicable]
[▇▇▇▇▇▇ Guaranty Trust Company
of New York, Brussels Office,]
as Operator of the Euroclear System
[Cedel S.A.]
By: _________________________________
A-2