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EXHIBIT 4.6
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AIMCO PROPERTIES, L.P.,
AS ISSUER
AND
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
AS GUARANTOR, IF APPLICABLE
SUBORDINATED DEBT SECURITIES
------------------------------------
INDENTURE
Dated as of
-----------------
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UNITED STATES TRUST COMPANY OF NEW YORK,
AS TRUSTEE
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CROSS REFERENCE TABLE (1)
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TIA INDENTURE
SECTION SECTION
------- ---------
310 (a)(1).................................................................................7.10
(a)(2).................................................................................N.A.
(a)(3).................................................................................N.A.
(a)(4).................................................................................N.A.
(a)(5).................................................................................7.10
(b)....................................................................................7.10
(b)(1).................................................................................7.10
(c).....................................................................................N.A
311 (a)....................................................................................7.11
(b)....................................................................................7.11
(c)....................................................................................N.A.
312 (a)....................................................................................N.A.
(b)....................................................................................13.3
(c)....................................................................................13.3
313 (a).................................................................................... 7.6
(b).....................................................................................7.6
(c).....................................................................................7.6
(d)....................................................................................N.A.
314 (a).....................................................................................4.2
(b)....................................................................................N.A.
(c)(1).................................................................................N.A.
(c)(2).................................................................................N.A.
(c)(3).................................................................................N.A.
(d).................................................................................. N.A.
(e)................................................................................... N.A.
(f).................................................................................. N.A.
315 (a).................................................................................. N.A.
(b)................................................................................... 7.5
(c)....................................................................................N.A.
(d)....................................................................................N.A.
(e)....................................................................................N.A.
316 (a)(1)(A)..............................................................................N.A.
(a)(1)(B)..............................................................................N.A.
(a)(2).................................................................................N.A.
(b)....................................................................................N.A.
(c)....................................................................................N.A.
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(1) Note: This Cross Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
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TIA INDENTURE
SECTION SECTION
------- ---------
317 (a)(1).................................................................................N.A.
(a)(2).................................................................................N.A.
(b)....................................................................................N.A.
318 (a)....................................................................................N.A.
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TABLE OF CONTENTS(2)
RECITALS OF THE COMPANY.............................................................................1
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE.................................................1
SECTION 1.1 Definitions..........................................................1
SECTION 1.2 Other Definitions....................................................6
SECTION 1.3 Incorporation by Reference of Trust Indenture Act....................6
SECTION 1.4 Rules of Construction................................................7
ARTICLE II
THE SECURITIES.............................................................................7
SECTION 2.1 Forms Generally......................................................7
SECTION 2.2 Securities in Global Form............................................8
SECTION 2.3 Title, Terms and Denominations.......................................8
SECTION 2.4 Execution, Authentication, Delivery and Dating......................11
SECTION 2.5 Registrar and Paying Agent..........................................14
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust..................15
SECTION 2.7 Securityholder Lists................................................15
SECTION 2.8 Transfer and Exchange...............................................15
SECTION 2.9 Replacement Securities..............................................18
SECTION 2.10 Outstanding Securities; Determinations of Holders'
Action........................................................19
SECTION 2.11 Temporary Securities...............................................20
SECTION 2.12 Cancellation.......................................................21
SECTION 2.13 Payment of Interest; Interest Rights Preserved.....................21
SECTION 2.14 Persons Deemed Owners..............................................22
SECTION 2.15 Computation of Interest............................................23
ARTICLE III
REDEMPTION................................................................................23
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(2) Note: This Table of Contents shall not, for any reasons, be deemed to be
part of the Indenture.
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SECTION 3.1 Right to Redeem; Notices to Trustee.................................23
SECTION 3.2 Selection of Securities to be Redeemed..............................23
SECTION 3.3 Notice of Redemption................................................24
SECTION 3.4 Effect of Notice of Redemption......................................24
SECTION 3.5 Deposit of Redemption Price.........................................25
SECTION 3.6 Securities Redeemed in Part.........................................25
ARTICLE IV
COVENANTS.................................................................................26
SECTION 4.1 Payment of Securities...............................................26
SECTION 4.2 SEC Reports.........................................................26
SECTION 4.3 Compliance Certificate..............................................26
SECTION 4.4 Further Instruments and Acts........................................26
SECTION 4.5 Maintenance of Office or Agency.....................................26
SECTION 4.6 Limitations on the Incurrence of Certain Other Debt.................27
ARTICLE V
SUCCESSOR CORPORATION.....................................................................27
SECTION 5.1 When Company May Merge or Transfer Assets...........................27
ARTICLE VI
DEFAULTS AND REMEDIES.....................................................................29
SECTION 6.1 Events of Default...................................................29
SECTION 6.2 Acceleration........................................................30
SECTION 6.3 Other Remedies......................................................31
SECTION 6.4 Waiver of Past Defaults.............................................31
SECTION 6.5 Control by Majority.................................................31
SECTION 6.6 Limitation on Suits.................................................31
SECTION 6.7 Rights of Holders to Receive Payment................................32
SECTION 6.8 Collection Suit by Trustee..........................................32
SECTION 6.9 Trustee May File Proofs of Claim....................................32
SECTION 6.10 Priorities..........................................................33
SECTION 6.11 Undertaking for Costs...............................................34
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.............................34
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ARTICLE VII
TRUSTEE............................................................................................34
SECTION 7.1 Duties of Trustee...................................................34
SECTION 7.2 Rights of Trustee...................................................35
SECTION 7.3 Individual Rights of Trustee, etc...................................36
SECTION 7.4 Trustee's Disclaimer................................................36
SECTION 7.5 Notice of Defaults..................................................36
SECTION 7.6 Reports by Trustee to Holders.......................................36
SECTION 7.7 Compensation and Indemnity..........................................37
SECTION 7.8 Replacement of Trustee..............................................37
SECTION 7.9 Successor Trustee by Merger.........................................39
SECTION 7.10 Eligibility; Disqualification.......................................39
SECTION 7.11 Preferential Collection of Claims Against Company .............. . .40
ARTICLE VIII
SATISFACTION AND DISCHARGE.........................................................................40
SECTION 8.1 Discharge of Liability on Securities................................40
SECTION 8.2 Repayment to the Company............................................40
SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance..................41
SECTION 8.4 Defeasance and Discharge............................................41
SECTION 8.5 Covenant Defeasance.................................................41
SECTION 8.6 Condition to Defeasance or Covenant Defeasance......................42
ARTICLE IX
SUPPLEMENTAL INDENTURES............................................................................42
SECTION 9.1 Supplemental Indentures without Consent of Holders..................42
SECTION 9.2 Supplemental Indentures with Consent of Holders.....................43
SECTION 9.3 Compliance with Trust Indenture Act.................................44
SECTION 9.4 Revocation and Effect of Consents, Waivers and
Actions........................................................44
SECTION 9.5 Notation on or Exchange of Securities...............................45
SECTION 9.6 Trustee to Sign Supplemental Indentures.............................45
SECTION 9.7 Effect of Supplemental Indentures...................................45
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ARTICLE X
SINKING FUNDS......................................................................................46
SECTION 10.1 Applicability of Article...........................................46
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities..............46
SECTION 10.3 Redemption of Securities for Sinking Fund..........................46
ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES...................................................................47
SECTION 11.1 Purposes for which Meetings may be Called..........................47
SECTION 11.2 Call, Notice and Place of Meetings.................................47
SECTION 11.3 Persons Entitled to Vote at Meetings...............................47
SECTION 11.4 Quorum; Action.....................................................48
SECTION 11.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings........................................48
SECTION 11.6 Counting Votes and Recording Action of Meetings....................49
SECTION 11.7 Actions of Holders Generally.......................................50
ARTICLE XII
SUBORDINATION......................................................................................51
SECTION 12.1 Securities Subordinate to Senior Indebtedness ....................51
SECTION 12.2 Payment Over of Proceeds upon Dissolution, Etc.....................52
SECTION 12.3 Acceleration of Securities.........................................54
SECTION 12.4 Default in Senior Indebtedness.....................................54
SECTION 12.5 Payment Permitted if No Default....................................55
SECTION 12.6 Subrogation Rights of Holders of Senior
Indebtedness..................................................56
SECTION 12.7 Provision Solely to Define Relative Rights.........................57
SECTION 12.8 Trustee to Effectuate Subordination................................57
SECTION 12.9 No Waiver of Subordination Provisions..............................57
SECTION 12.10 Notice to Trustee.................................................57
SECTION 12.11 Reliance on Judicial Order or Certificate
of Liquidating Agent ........................................58
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness..................................................59
SECTION 12.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights................59
SECTION 12.14 Article XII Applicable to Paying Agents...........................59
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ARTICLE XIII
MISCELLANEOUS......................................................................................60
SECTION 13.1 Trust Indenture Act Controls.......................................60
SECTION 13.2 Notices............................................................60
SECTION 13.3 Communication by Holders with Other Holders........................61
SECTION 13.4 Certificate and Opinion as to Conditions Precedent.................61
SECTION 13.5 Statements Required in Certificate or Opinion......................62
SECTION 13.6 Separability Clause................................................62
SECTION 13.7 Rules by Trustee, Paying Agent and Registrar.......................62
SECTION 13.8 Legal Holidays.....................................................62
SECTION 13.9 Governing Law......................................................63
SECTION 13.10 No Recourse Against Others.........................................63
SECTION 13.11 Successors.........................................................63
SECTION 13.12 Effect of Headings and Table of Contents...........................63
SECTION 13.13 Benefits of Indenture..............................................63
SECTION 13.14 Multiple Originals.................................................63
ARTICLE XIV
GUARANTEES.........................................................................................64
SECTION 14.1 Guarantee .......................................................64
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INDENTURE, dated as of ____________, by and among AIMCO Properties,
L.P., a Delaware limited partnership (the "Company"), Apartment Investment and
Management Company, a Maryland corporation (the "Guarantor"), and United States
Trust Company of New York, a New York corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities") to be issued in one or more series as in this Indenture provided.
For value received, the execution and delivery by the Guarantor of this
Indenture to provide for the issuance of the Guarantee provided for herein (if
made applicable in accordance with Section 2.3) has been duly authorized. All
things necessary to make this Indenture a valid agreement of the Guarantor, in
accordance with its terms, have been done.
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and ratable benefit of the Holders of the Securities or each series
thereof as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of 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.
"Board of Directors" means either the board of directors of the General
Partner of the Company or any committee of such board authorized with respect to
any matter to exercise the powers of the Board of Directors of the General
Partner of the Company.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the General Partner of the Company to
have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means, except as otherwise specified as contemplated by
Section 2.3(a), with respect to any Place of Payment or any other particular
location referred to in this Indenture or in the Securities, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment or other location are authorized or
obligated by law or executive order to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"cash" means such coin or currency of the United States as at any time
of payment is legal tender for the payment of public and private debts.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by the Chairman of the Board, any Vice
Chairman, the President or any Vice President of its General Partner, and by the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
its General Partner, and delivered to the Trustee or, with respect to Sections
2.4, 2.8, 2.11 and 7.2, any other employee of its General Partner named in an
Officers' Certificate delivered to the Trustee.
"Debt" means with respect to any person at any date, without
duplication (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Debt of others secured by a lien on any asset of
such person, whether or not such Debt is assumed by such person, (iv) all
obligations of such person pursuant to leases which are required to be
capitalized under generally accepted accounting principles consistently applied
and (v) all Debt of others for the payment of which such person is responsible
or liable as obligor or guarantor.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person specified as
contemplated by Section 2.3(a)
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as the Depositary with respect to such series of Securities, until a successor
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include such successor.
"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 6.2.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"General Partner" means the general partner of AIMCO Properties, L.P.
"Guarantee" means the unconditional guarantee of the payment of the
principal of or any premium or interest on the Guaranteed Securities by the
Guarantor, as more fully set forth in Article XII.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Officers' Certificate" means a certificate signed by the
Chairman, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Guarantor, that
complies with the requirements of Section 14(e) of the Trust Indenture Act and
is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" means, respectively, a
written request or order signed in the name of the Guarantor by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"Holder" or "Securityholder," when used with respect to any Security,
means a person in whose name a Security is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof and shall include the terms of a
particular series of Securities established as contemplated in Section 2.3(a).
"interest," when used with respect to a Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
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"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on
which the Principal of such Security or an installment of Principal or, in the
case of a Discount Security, the Principal Amount payable upon a declaration of
acceleration pursuant to Section 6.2, becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, any Vice Chairman, the
President, any Vice President, the Treasurer, the Secretary, any Assistant
Treasurer or any Assistant Secretary of the General Partner of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 13.4 and 13.5, signed in the name of the
Company by the Chairman of the Board, any Vice Chairman, the President or any
Vice President of its General Partner, and by the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of its General Partner, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 13.4 and 13.5, from legal counsel who is acceptable to the
Trustee. The counsel may be an employee of, or counsel to, the Company, its
General Partner, the Trustee, or the Guarantor, as the case may be.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or Maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.3(a) with respect thereto, are to be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, upon the
issuance of such Securities.
"person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where, subject to the provisions of Section
4.5, the Principal of and any interest on the Securities of that series are
payable as specified as contemplated by Section 2.3(a).
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security;
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and, for the purposes of this definition, any Security authenticated and
delivered under Section 2.9 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Security.
"Principal" or "Principal Amount" of a Security, except as otherwise
specifically provided in this Indenture, means the outstanding principal of the
Security plus the premium, if any, of the Security.
"Redemption Date" or "redemption date," when used with respect to any
Security to be redeemed, shall mean the date specified for redemption of such
Security in accordance with the terms of such Security and this Indenture.
"Redemption Price" or "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.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 2.3(a).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securityholder" or "Holder," when used with respect to any Security,
means a person in whose name a Security is registered on the Registrar's books.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any issue means a date fixed by the Trustee pursuant to Section
2.13.
"Stated Maturity," when used with respect to any Security or any
installment of Principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which an amount equal to the Principal of
such Security or an installment of Principal thereof or interest thereon is due
and payable.
"Subsidiary" means, with respect to any person, a corporation of which
a majority of the Capital Stock having voting power under ordinary circumstances
to elect a majority of the board of directors of such corporation is owned by
(i) such person, (ii) such person and one or more Subsidiaries of such person or
(iii) one or more Subsidiaries of such person.
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"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, except as provided in Section 9.3.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor.
"United States" means the United States of America, its territories,
its possessions (including the Commonwealth of Puerto Rico), and other areas
subject to its jurisdiction.
SECTION 1.2 Other Definitions
Defined in
Term Section
---- ----------
"Bankruptcy Law" 6.1
"Custodian" 6.1
"Defaulted Interest" 2.13
"Event of Default" 6.1
"Exchange Date" 2.11
"Guaranteed Securities" 2.3
"Legal Holiday" 13.8
"Notice of Default " 6.1
"Outstanding" 2.10
"Paying Agent" 2.5
"Registrar" 2.5
"Senior Indebtedness" 12.1
SECTION 1.3 Incorporation by Reference of Trust Indenture Act Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder or Securityholder.
"indenture to be qualified" means this Indenture.
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"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.4 Rules of Construction Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in the United States as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE II
THE SECURITIES
SECTION 2.1 Forms Generally The Securities of each series shall be in
substantially such form (including global form) as shall be established by
delivery to the Trustee of an Officers' Certificate or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the Officers executing such Securities as evidenced by their
execution of the Securities. The Officers' Certificate so establishing the form
of Security of any series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.4 for the authentication
and delivery of such Securities.
The permanent Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner, provided, that such method is permitted by the rules of any securities
exchange on which such
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Securities may be listed, all as determined by the Officers executing such
Securities as evidenced by their execution of such Securities.
SECTION 2.2 Securities in Global Form If Securities of a series are
issuable in temporary or permanent global form, as specified as contemplated by
Section 2.3(a), then, notwithstanding clause (10) of Section 2.3(a) and the
provisions of Section 2.3(b), any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount of
any increase or decrease in the amount of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such person or persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 2.4 or Section 2.11. Subject
to the provisions of Section 2.4 and, if applicable, Section 2.11, the Trustee
shall deliver and redeliver any Security in global form in the manner and upon
instructions given by the person or persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 2.4 or 2.11 has
been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 13.4 or 13.5 and need not
be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.4 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company, and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 13.4 or 13.5 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 2.4.
Notwithstanding the provisions of Sections 2.1 and 2.13, unless
otherwise specified as contemplated by Section 2.3(a), payment of Principal of
and any interest on any Security in global form shall be made to the person or
persons specified therein.
SECTION 2.3 Title, Terms and Denominations
(a) The aggregate Principal Amount of Securities which may be
authenticated and delivered under this Indenture shall be unlimited.
The Securities may be issued in one or more series. There shall be
established and, subject to Section 2.4, set forth, or determined in the manner
provided, in an
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Officers' Certificate of the Company, or established in one or more indentures
supplemental hereto:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate Principal Amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Sections 2.8, 2.9, 2.11, 3.6, 9.5
or 10.3 and except for any Securities which, pursuant to Section 2.4,
are deemed never to have been authenticated and delivered hereunder);
(3) whether any Securities of the series may be represented
initially by a Security in temporary or permanent global form and, if
so, the initial Depositary with respect to any such temporary or
permanent global Security, and if other than as provided in Section 2.8
or Section 2.11, as applicable, whether and the circumstances under
which beneficial owners of interests in any such temporary or permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination;
(4) the person to whom any interest on any Security of the
series shall be payable, if other than the person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, and the
extent to which, or the manner in which (including any certification
requirement and other terms and conditions under which), any interest
payable on a temporary or permanent global Security on an Interest
Payment Date will be paid if other than in the manner provided in
Section 2.2 and Section 2.4, as applicable;
(5) the date or dates on which the Principal of the Securities
of the series is payable or the method of determination thereof;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the Regular Record Date for any interest
payable on any Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 4.5, the Principal of and any interest on Securities of the
series shall be payable, any Securities of the series may be
surrendered for registration of transfer, Securities
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of the series may be surrendered for exchange and notices and demands
to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which, Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, the
conditions, if any, giving rise to such obligation, and the period or
periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, and any provisions for the remarketing
of such Securities;
(10) the denominations in which any Securities of the series
shall be issuable, if other than denominations of $1,000 and any
integral multiple thereof;
(11) if other than the Principal Amount thereof, the portion
of the Principal Amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.2;
(12) if other than as defined in Section 1.1, the meaning of
"Business Day" when used with respect to any Securities of the series;
(13) the terms and conditions, if any, upon which the
Securities of the series may or must be converted into securities of
the Company or exchanged for securities of the Company;
(14) any terms applicable to Original Issue Discount (as that
term is defined in the Internal Revenue Code of 1986 and the
Regulations thereunder), if any, including the rate or rates at which
such Original Issue Discount, if any, shall accrue;
(15) if the Securities of the series may be issued or
delivered (whether upon original issuance or upon exchange of a
temporary Security of such series or otherwise), or any installment of
Principal of or any interest is payable, only upon receipt of certain
certificates or other documents or satisfaction of other conditions in
addition to those specified in this Indenture, the form and terms of
such certificates, documents or conditions;
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(16) if the Guarantor has guaranteed the obligations of the
Company with respect to the Securities of the series (any such
guaranteed securities being "Guaranteed Securities"); and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.1(7)).
All Securities of any one series shall be substantially identical
except as to denomination and the rate or rates of interest, if any, and Stated
Maturity, the date from which interest, if any, shall accrue and except as may
otherwise be provided in or pursuant to an Officers' Certificate pursuant to
this Section 2.3(a) or in any 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 for issuances of additional Securities of
such series or for the establishment of additional terms with respect to the
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of any appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the General
Partner of the Company and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate setting forth the terms of the series. With respect
to Securities of a series subject to a Periodic Offering, such Board Resolution
or Officers' Certificate may provide general terms for Securities of such series
and provide either that the specific terms of particular Securities of such
series shall be specified in a Company Order or that such terms shall be
determined by the Company, or one or more of the Company's agents designated in
an Officers' Certificate, in accordance with the Company Order as contemplated
by the first proviso of the third paragraph of Section 2.4.
(b) Unless otherwise provided as contemplated by Section 2.3(a) with
respect to any series of Securities, any Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 2.4 Execution, Authentication, Delivery and Dating The
Securities shall be executed on behalf of the Company by the Chairman of the
Board, any Vice Chairman, the President or any Vice President of its General
Partner, or the Treasurer or any Assistant Treasurer of its General Partner,
under its corporate seal reproduced thereon attested by the Secretary or any
Assistant Secretary of its General Partner. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the General Partner of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such
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offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, (a) such Company Order may be delivered by the Company to the
Trustee prior to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
Principal Amount not exceeding the aggregate Principal Amount established for
such series, pursuant to a Company Order or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by a Company
Order, (c) the rate or rates of interest, if any, the Stated Maturity or
Maturities, the original issue date or dates, the redemption provisions, if
any, and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Company, or the Company's
duly authorized agent or agents designated in an Officers' Certificate, which
oral instructions shall be promptly confirmed in writing.
If the forms or terms of the Securities of the series have been
established in or pursuant to one or more Officers' Certificates as permitted by
Sections 2.1 and 2.3(a), in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) that the form and terms of such Securities have been duly
authorized by the Company and established in conformity with the provisions of
this Indenture; and
(b) that such Securities when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms, subject
to customary exceptions;
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
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(x) that the forms of such Securities have been, and the terms
of such Securities (when established in accordance with such procedures
as may be specified from time to time in a Company Order, all as
contemplated by and in accordance with a Board Resolution or an
Officers' Certificate pursuant to Section 2.3(a), as the case may be)
will have been, duly authorized by the Company and established in
conformity with the provisions of this Indenture; and
(y) that such Securities when (1) executed by the Company, (2)
completed, authenticated and delivered by the Trustee in accordance
with this Indenture, and (3) issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to customary
exceptions.
With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of any
of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Sections 2.1 and 2.3(a) and this Section, as
applicable, at or prior to the time of the first authentication of Securities
of such series unless and until it has received written notification that such
opinion or other documents have been superseded or revoked. In connection with
the authentication and delivery of Securities of a series subject to a Periodic
Offering, the Trustee shall be entitled to assume, unless it has actual
knowledge to the contrary, that the Company's instructions to authenticate and
deliver such Securities do not violate any rules, regulations or orders of any
governmental agency or commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 2.3(a) and of the preceding
three paragraphs, if all Securities of a series are subject to a Periodic
Offering, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 2.3(a) at or prior to the time of
authentication of each Security of such series if such Officers' Certificate is
delivered at or prior to the authentication upon original issuance of the first
Security of such series to be issued.
Each Security shall be dated the date of its authentication.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication
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substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. The Trustee's certificate
of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
United States Trust Company of New York, as
Trustee
By:
---------------------------------------------
Authorized Signatory
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.12 together with a written statement (which need not
comply with Section 13.4 or 13.5 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 2.5 Registrar and Paying Agent The Company or the Guarantor (if
the Securities are Guaranteed Securities) shall maintain, with respect to each
series of Securities, an office or agency where such Securities may be presented
for registration of transfer or for exchange ("Registrar") and, in the Borough
of Manhattan, The City of New York, an office or agency where such Securities
may be presented for purchase or payment ("Paying Agent"). The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Company or the Guarantor, as the case may be, may have one or more co-registrars
and one or more additional paying agents. The term Paying Agent includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement with
respect to each series of Securities with any Registrar, Paying Agent or
co-registrar (if not the Trustee). The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of any such agent. If the Company or the
Guarantor (if the Securities are Guaranteed Securities) fails
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to maintain a Registrar or Paying Agent for a particular series of Securities,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.7. The Company or the Guarantor, as the case may
be, or any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar or co-registrar.
The Company initially appoints the Trustee as the Registrar and Paying
Agent in connection with such Securities.
SECTION 2.6 Paying Agent to Hold Money and Securities in Trust Except
as otherwise provided herein, prior to or on each due date of payments in
respect of any series of Securities, the Company or the Guarantor (if the
Securities are Guaranteed Securities) shall deposit with the Paying Agent with
respect to such Securities a sum of money sufficient to make such payments when
so becoming due. The Company or the Guarantor, as the case may be, shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by such Paying Agent for the making of payments in respect of the
Securities of such series and shall notify the Trustee of any default by the
Company or the Guarantor, as the case may be, in making any such payment. At any
time during the continuance of any such default, a Paying Agent shall, upon the
written request of the Trustee, forthwith pay to the Trustee all money so held
in trust with respect to such Securities. If the Company or the Guarantor, as
the case may be, or a Subsidiary or an Affiliate of either of them acts as
Paying Agent for a series of Securities, it shall segregate the money held by it
as Paying Agent with respect to such Securities and hold it as a separate trust
fund. The Company or the Guarantor, as the case may be, at any time may require
a Paying Agent for a series of Securities to pay all money held by it with
respect to such Securities to the Trustee and to account for any money disbursed
by it. Upon doing so, such Paying Agent shall have no further liability for the
money.
SECTION 2.7 Securityholder Lists The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of each series of Securities. If the
Trustee is not the Registrar for any series of Securities, the Company or the
Guarantor (if the Securities are Guaranteed Securities) shall cause to be
furnished to the Trustee at least semiannually on June 1 and December 1 a
listing of Holders of such series of Securities dated within 15 days of the date
on which the list is furnished and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Securityholders of such series
of Securities.
SECTION 2.8 Transfer and Exchange Upon surrender for registration of
transfer of any Security at the office or agency of the Company or the Guarantor
(if the Securities are Guaranteed Securities) designated pursuant to Section 4.5
for such purpose, the Company and the Guarantor, as the case may be, shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or
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more new Securities of any authorized denomination or denominations of a like
aggregate Principal Amount and tenor. The Company and the Guarantor, as the case
may be, shall not charge a service charge for any registration of transfer or
exchange, but the Company and the Guarantor, as the case may be, may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of the
Securities from the Securityholder requesting such transfer or exchange (other
than any exchange of a temporary Security for a definitive Security not
involving any change in ownership or any exchange pursuant to Section 2.11, 3.6,
9.5 or 10.3, not involving any transfer).
Notwithstanding any other provisions (other than the provisions set
forth in the sixth and seventh paragraphs) of this Section, a Security in global
form representing all or a portion of the Securities of a series may not be
transferred except as a whole by the Depositary for such series to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a
successor Depositary for such series or a nominee of such successor Depositary.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series of any authorized denomination or
denominations, of a like aggregate Principal Amount and tenor, upon surrender of
the Securities to be exchanged at the office or agency of the Company or the
Guarantor (if the Securities are Guaranteed Securities) designated as such
pursuant to Section 4.5 for the purpose of exchanges of Securities of such
series. Whenever any Securities are so surrendered for exchange, the Company and
the Guarantor (if the Securities are Guaranteed Securities) shall execute, and
the Trustee or a duly appointed authenticating agent shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
If at any time the Depositary for the Securities of a series notifies
the Company or the Guarantor (if the Securities are Guaranteed Securities) that
it is unwilling or unable to continue as Depositary for the Securities of such
series, the Company or the Guarantor, as the case may be, shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Company or the Guarantor, as the case may be, within 90 days after the Company
or the Guarantor, as the case may be, receives such notice, the Company or the
Guarantor, as the case may be, will execute, and the Trustee, upon receipt of a
Company Order or Guarantor Order, as the case may be, for the authentication and
delivery of definitive Securities of such series, will authenticate and deliver
Securities of such series in definitive form in an aggregate Principal Amount
equal to the Principal Amount of the Security or Securities in global form
representing such series in exchange for such Security or Securities in global
form.
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The Company or the Guarantor (if the Securities are Guaranteed
Securities) may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more global Securities
shall no longer be represented by such global Security or Securities. In such
event the Company or the Guarantor, as the case may be, will execute, and the
Trustee, upon receipt of a Company Order or Guarantor Order, as the case may be,
for the authentication and delivery of definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form and
in an aggregate Principal Amount equal to the Principal Amount of the Security
or Securities in global form representing such series in exchange for such
Security or Securities in global form.
Notwithstanding the foregoing, except as otherwise specified in the
preceding two paragraphs or as contemplated by Section 2.3(a), any permanent
global Security shall be exchangeable only as provided in this paragraph. If the
beneficial owners of interests in a permanent global Security are entitled to
exchange such interests for definitive Securities of such series and of like
Principal Amount and tenor but of another authorized form and denomination, as
specified as contemplated by Section 2.3(a), then without unnecessary delay but
in any event not later than the earliest date on which such interests may be so
exchanged, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall deliver to the Trustee definitive Securities in aggregate
Principal Amount equal to the Principal Amount of such permanent global
Security, executed by the Company or the Guarantor, as the case may be,. On or
after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Depositary with respect
thereto to the Trustee, as the Company's (or the Guarantor's, as the case may
be), 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 exchange for each portion of such permanent global
Security, an equal aggregate Principal Amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged; provided, however, that
notwithstanding the last paragraph of this Section 2.8, no such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities of that series to be redeemed and ending on the relevant
Redemption Date. If a 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 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 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.
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Upon the exchange of a Security in global form for Securities in
definitive form, such Security in global form shall be cancelled by the Trustee.
Securities issued in exchange for a Security in global form pursuant to this
Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Security in global form, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Securities to the persons
in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company and the Guarantor (if
such Securities are Guaranteed Securities), evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Guarantor or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Guarantor, as the case may be, and the
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before any selection of Securities of that series to be
redeemed and ending (except as otherwise provided in the first proviso in the
eighth paragraph of this Section 2.8) at the close of business on the day of the
mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Security so selected for redemption, in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
SECTION 2.9 Replacement Securities If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company, the Guarantor (if the
Securities are Guaranteed Securities) and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and there is
delivered to the Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the
Company, the Guarantor (if the Securities are Guaranteed Securities) or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company and the Guarantor (if the Securities are Guaranteed Securities) shall
execute and upon its written request the Trustee shall authenticate and deliver,
in exchange for any such mutilated Security or in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and of like tenor and
Principal Amount, bearing a number not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company or the Guarantor (if
the Securities are Guaranteed Securities) in its discretion may, instead of
issuing a new Security, pay such Security.
Upon the issuance of any new Securities under this Section, the Company
or the Guarantor (if the Securities are Guaranteed Securities) may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company and the Guarantor (if
the Securities are Guaranteed Securities), whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and any such new
Security shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities of that issue duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.10 Outstanding Securities; Determinations of Holders' Action
Securities of any series "Outstanding" at any time are, as of the date of
determination, all the Securities of such series theretofore authenticated by
the Trustee for such series except for those cancelled by it, those delivered to
it for cancellation and those described in this Section 2.10 as not outstanding.
A Security does not cease to be "Outstanding" because the Company or the
Guarantor (if the Securities are Guaranteed Securities) or an Affiliate thereof
holds the Security; provided, however, that in determining whether the Holders
of the requisite Principal Amount of Outstanding Securities have given or
concurred in any request, demand, authorization, direction, notice, consent or
waiver hereunder, Securities owned by the Company or the Guarantor, as the case
may be, or any other obligor upon the Securities or any Affiliate of the Company
or the Guarantor, as the case may be, or such other obligor shall be disregarded
and deemed not to be outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be 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 Company or the
Guarantor, as the case may be, or any other obligor upon the Securities or any
Affiliate of the Company or the Guarantor, as the case may be, or of such other
obligor. Subject to the foregoing, only Securities outstanding
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at the time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles VI and IX).
In addition, in determining whether the Holders of the requisite Principal
Amount of Outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, the Principal
Amount of a Discount Security that shall be deemed to be Outstanding shall be
the amount of the Principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 6.2.
If a Security has been paid pursuant to Section 2.9 or in exchange for
or in lieu of which another Security has been authenticated and delivered
pursuant to this Indenture, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If the Trustee (other than the Company or the Guarantor (if the
Securities are Guaranteed Securities)) holds, in accordance with this Indenture,
on a Redemption Date or on Stated Maturity, money sufficient to pay Securities
payable on that date, then on and after that date such Securities shall cease to
be outstanding and interest, if any, on such Securities shall cease to accrue;
provided, that if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.
SECTION 2.11 Temporary Securities Pending the preparation of definitive
Securities of any series, the Company or the Guarantor (if the Securities are
Guaranteed Securities) may execute, and upon Company Order or Guarantor Order,
as the case may be, 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, 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. Such temporary
Securities may be in global form.
If temporary Securities for some or all of the Securities of any series
are issued, the Company or the Guarantor (if the Securities are Guaranteed
Securities) will cause definitive Securities representing such Securities to be
prepared without unreasonable delay. After the preparation of such definitive
Securities, the temporary Securities shall be exchangeable for such definitive
Securities of like tenor upon surrender of the temporary Securities at the
office or agency of the Company or the Guarantor, as the case may be, designated
as such pursuant to Section 4.5 for the purpose of exchanges of Securities of
such series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company or the Guarantor,
as the case may be, shall execute and the Trustee shall authenticate and deliver
in exchange therefor a
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like Principal Amount of definitive Securities of the same series and of like
tenor of authorized denominations. Until so exchanged the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
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 permanent Securities of the same series and of like
tenor authenticated and delivered hereunder.
SECTION 2.12 Cancellation All Securities surrendered for payment,
redemption, 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 all Securities so delivered shall be
promptly cancelled by it. The Company or the Guarantor (if the Securities are
Guaranteed Securities) may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company or the Guarantor, as the case may be, may have acquired in any manner
whatsoever (including Securities received by the Company in exchange or payment
for other Securities of the Company) 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 Company has not issued and sold,
and all Securities so delivered shall be promptly cancelled by the Trustee. The
Company or the Guarantor, as the case may be, may not reissue, or issue new
Securities to replace, Securities it has paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted in the form of Securities for any particular series or as permitted by
this Indenture. All cancelled Securities held by the Trustee shall be destroyed
by the Trustee and evidence of their destruction delivered to the Company or the
Guarantor, as the case may be, unless the Company or the Guarantor, as the case
may be, directs by Company Order or Guarantor Order, as the case may be, that
the Trustee deliver cancelled Securities to the Company or the Guarantor, as
the case may be.
SECTION 2.13 Payment of Interest; Interest Rights Preserved Unless
otherwise provided as contemplated by Section 2.3(a) with respect to any series
of Securities, interest on any 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 that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor (if the
Securities are Guaranteed Securities), at its election in each case, as provided
in clause (1) or (2) below:
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(1) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may elect to make payment of any Defaulted Interest to the
persons in whose names the 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 Company or the Guarantor, as
the case may be, shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of
the proposed payment, and at the same time the Company or the Guarantor,
as the case may be, shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company or the Guarantor, as the case
may be, of such Special Record Date and, in the name and at the expense of
the Company or the Guarantor, 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
Securities at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
persons in whose names the Securities (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 the following Clause (2).
(2) The Company or the Guarantor (if the Securities are Guaranteed
Securities) may make payment of any Defaulted Interest on the Securities
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company or the Guarantor, as the case may be, to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 2.8,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 2.14 Persons Deemed Owners Prior to due presentment of a
Security for registration of transfer, the Company, the Guarantor (if the
Securities are Guaranteed
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Securities), the Trustee and any agent of the Company, the Guarantor (if the
Securities are Guaranteed Securities) or the Trustee may treat the person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of Principal of and (except as otherwise specified
as contemplated by Section 2.3(a) and subject to Section 2.8 and Section 2.13)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Guarantor (if the
Securities are Guaranteed Securities), the Trustee nor any agent of the Company,
the Guarantor (if the Securities are Guaranteed Securities) or the Trustee shall
be affected by notice to the contrary.
None of the Company, the Guarantor (if the Securities are Guaranteed
Securities), the Trustee, any Paying Agent or the Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 2.15 Computation of Interest Except as otherwise specified as
contemplated by Section 2.3(a) for Securities of any series, (i) interest on
any Securities which bear interest at a fixed rate shall be computed on the
basis of a 360-day year comprised of twelve 30-day months and (ii) interest on
any Securities which bear interest at a variable rate shall be computed on the
basis of the actual number of days in an interest period divided by 360.
ARTICLE III
REDEMPTION
SECTION 3.1 Right to Redeem; Notices to Trustee 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 2.3(a) for Securities of any series) in accordance with this Article.
In the case of any redemption at the election of the Company of less than all of
the Securities of any series, the Company shall, within the time period set
forth below, notify the Trustee in writing of the Redemption Date, the Principal
Amount and any other information necessary to identify the Securities of such
series to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 at least 60 days before the Redemption Date (unless a shorter notice
shall be satisfactory to the Trustee).
SECTION 3.2 Selection of Securities to be Redeemed Unless otherwise
specified as contemplated by Section 2.3(a) with respect to any series of
Securities, if less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to
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be redeemed, the Trustee shall select the particular Securities to be redeemed
by a method the Trustee considers fair and appropriate, which method may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that 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 that series. The Trustee
shall make the selection not more than 60 days before the Redemption Date from
Outstanding Securities of such series not previously called for redemption.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly in writing of the Securities to be redeemed and, in the
case of any portions of Securities to be redeemed, the principal amount thereof
to be redeemed.
SECTION 3.3 Notice of Redemption Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of Securities, at
least 30 days but not more than 60 days before a Redemption Date, the Company
shall mail a notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if fewer than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the Principal Amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security (or portion thereof) to be redeemed
and, if applicable, that interest thereon will cease to accrue on and
after said date;
(5) the place or places where such Securities, maturing after the
Redemption Date, are to be surrendered for payment of the Redemption
Price; and
(6) that the redemption is for a sinking fund, if such is the case.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of such Company Notice shall be prepared
by the Company.
SECTION 3.4 Effect of Notice of Redemption Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, and from and after such
date (unless the
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Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 2.3(a), installments of interest on
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 Regular
Record Dates according to their terms and the provisions of Sections 2.8 and
2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 3.5 Deposit of Redemption Price Prior to or on the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company or a
Subsidiary or an Affiliate of either of them is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all Securities to be redeemed on that date other than Securities or
portions of Securities called for redemption which prior thereto have been
delivered by the Company to the Trustee for cancellation. If such money is then
held by the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
SECTION 3.6 Securities Redeemed in Part Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company designated therefor pursuant to Section 4.5 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing) and, upon such surrender,
the Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security a new Security or Securities of the same series and of
like tenor, in an authorized denomination, as requested by such Holder, equal in
aggregate Principal Amount to, and in exchange for, the unredeemed portion of
the Principal of the Security surrendered.
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ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Securities The Company or the Guarantor (if the
Securities are Guaranteed Securities) shall promptly make all payments in
respect of each series of Securities on the dates and in the manner provided in
the Securities and, to the extent not otherwise so provided, pursuant to this
Indenture. An installment of Principal of or interest on the Securities shall be
considered paid on the date it is due if the Trustee or a Paying Agent (other
than the Company or the Guarantor, as the case may be, or an Affiliate of the
Company or the Guarantor, as the case may be) holds on that date funds
designated for and sufficient to pay such installment. At the Company's or the
Guarantor's (if the Securities are Guaranteed Securities) option, payments of
Principal or interest may be made by check or by transfer to an account
maintained by the payee.
SECTION 4.2 SEC Reports The Company or the Guarantor (if the Securities
are Guaranteed Securities) shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information, documents and other
reports with the SEC, copies of its annual report and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company or the
Guarantor, as the case may be, is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company or the Guarantor, as the
case may be, also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.3 Compliance Certificate The Company and the Guarantor (if
the Securities are Guaranteed Securities) shall each deliver to the Trustee
within 120 days after the end of each of their respective fiscal year (beginning
with the first fiscal year ending on or after the date hereof), an Officers'
Certificate and Guarantor's Officers' Certificate, as the case may be, stating
whether or not the signers know of any Default that occurred during such period.
If they do, such Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, shall describe the Default and its status.
SECTION 4.4 Further Instruments and Acts Upon request of the Trustee,
the Company and the Guarantor (if the Securities are Guaranteed Securities) will
execute and deliver such further instruments and do such further acts as may be
reasonably necessary or proper to carry out more effectively the purposes of
this Indenture.
SECTION 4.5 Maintenance of Office or Agency The Company or the
Guarantor (if the Securities are Guaranteed Securities) will maintain in the
Borough of Manhattan, the City of New York, an office or agency where Securities
of that series may be presented or surrendered for payment, where any
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange,
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purchase or redemption and where notices and demands to or upon the Company or
the Guarantor, as the case may be, in respect of the Securities of that series
and this Indenture may be served. The office of the Trustee in New York, New
York shall be such office or agency for all of the aforesaid purposes unless the
Company or the Guarantor, as the case may be, shall maintain some other office
or agency for such purposes and shall give prompt written notice to the Trustee
of the location, and any change in the location, of such other office or agency.
If at any time the Company or the Guarantor, as the case may be, shall fail to
maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the address of the Trustee set
forth in Section 13.2, and the Company or the Guarantor, as the case may be,
hereby appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company or the Guarantor, as the case may be, 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 Company or
the Guarantor, as the case may be, 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.
SECTION 4.6 Limitations on the Incurrence of Certain Other Debt The
Company shall not create, incur, issue, assume, guaranty or otherwise become
directly or indirectly liable for or with respect to or otherwise permit to
exist any Debt of the Company that is subordinate in right of payment to any
Debt of the Company unless such Debt is either pari passu with the Securities or
subordinate in right of payment to the Securities pursuant to subordination
provisions that are at least as favorable to the holders of the Securities as
the subordination provision set forth in this Indenture with respect to Senior
Indebtedness.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 When Company May Merge or Transfer Assets The Company and
the Guarantor (if the Securities are Guaranteed Securities) shall not
consolidate with or merge with or into any other person or convey, transfer or
lease its properties and assets substantially as an entirety to any person,
unless:
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(a) either (1) the Company or the Guarantor, as the case may be,
shall be the continuing entity or (2) the person (if other than the
Company or the Guarantor, as the case may be) formed by such
consolidation or into which the Company or the Guarantor, as the case
may be, is merged or the person which acquires by conveyance, transfer or
lease the properties and assets of the Company or the Guarantor, as the
case may be, substantially as an entirety (i) shall be a corporation,
partnership or trust organized and validity existing under the laws of
the United States or any state thereof or the District of Columbia and
(ii) shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, all of the obligations of the Company or the Guarantor, as the
case may be, under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate or, if applicable, the Guarantor shall have delivered to the
Trustee a Guarantor's Officers' Certificate, and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with
such transaction, such supplemental indenture, comply with this Article
and that all conditions precedent herein relating to such transaction
have been satisfied.
The successor person formed by such consolidation or into which the
Company or the Guarantor, as the case may be, is merged or the successor person
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or the
Guarantor, as the case may be, under this Indenture, with the same effect as if
such successor had been named as the Company or the Guarantor, as the case may
be, herein; and thereafter, except in the case of a lease of its properties and
assets substantially as an entirety, the Company or the Guarantor, as the case
may be, shall be discharged from all obligations and covenants under this
Indenture and the Securities.
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ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.1 Events of Default Unless otherwise specified as
contemplated by Section 2.3(a) with respect to any series of securities, an
"Event of Default" occurs, with respect to each series of the Securities
individually, if:
(1) the Company or the Guarantor (if the Securities are Guaranteed
Securities) defaults in (a) the payment of the principal of any Security
of such series at its Maturity or (b) the payment of any interest upon
any Security of such series when the same becomes due and payable and
continuance of such default for a period of 30 days;
(2) the Company or the Guarantor (if the Securities are Guaranteed
Securities) fails to comply with any of its agreements in the Securities
or this Indenture (other than those referred to in clause (1) above and
other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with or which has
been expressly included in this Indenture solely for the benefit of
another series of Securities) and such failure continues for 60 days
after receipt by the Company or the Guarantor, as the case may be, of a
Notice of Default;
(3) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company or the Guarantor, as the case may be, in an involuntary case or
proceeding under any applicable Bankruptcy Law or (b) a decree or order
adjudging the Company or the Guarantor, as the case may be, bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantor, as the case
may be, under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or the Guarantor, as the case may
be, or of any substantial part of its property, or ordering the wind up
or liquidation of its affairs, and any such decree or order for relief
shall continue to be in effect, or any such other decree or order shall
be unstayed and in effect, for a period of 60 consecutive days;
(4) (a) the Company or the Guarantor (if the Securities are
Guaranteed Securities) commences a voluntary case or proceeding under
any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated bankrupt or insolvent, (b) the Company or the Guarantor, as
the case may be, consents to the entry of a decree or order for relief in
respect of the Company or the Guarantor, as the case may be, in an
involuntary case or proceeding under any applicable Bankruptcy Law or to
the commencement of any bankruptcy or insolvency case or proceeding
against it, (c) the
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Company or the Guarantor, as the case may be, files a petition or answer
or consent seeking reorganization or substantially comparable relief
under any applicable federal or state law, (d) the Company or the
Guarantor, as the case may be, (x) consents to the filing of such
petition or the appointment of, or taking possession by, a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official
of the Company or the Guarantor, as the case may be, or of any
substantial part of its property, (y) makes an assignment for the benefit
of creditors or (z) admits in writing its inability to pay its debts
generally as they become due or (e) the Company or the Guarantor, as the
case may be, takes any action in furtherance of any such actions in this
clause (4); or
(5) any other Event of Default provided with respect to Securities of
that series.
"Bankruptcy Law" means ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of such series notify the Company, the Guarantor, as the
case may be, and the Trustee, of the Default and the Company or the Guarantor,
as the case may be, does not cure such Default within the time specified in
clause (2) above after receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice of
Default."
SECTION 6.2 Acceleration If an Event of Default with respect to
Securities of any series at the time Outstanding (other than an Event of Default
specified in Section 6.1(3) or (4)) occurs and is continuing, the Trustee by
notice to the Company and the Guarantor (if the Securities are Guaranteed
Securities), or the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series by notice to the Company, the Guarantor,
as the case may be, and the Trustee, may declare the Principal Amount (or, if
any of the Securities of that series are Discount Securities, such portion of
the Principal Amount of such Securities as may be specified in the terms
thereof) of all the Securities of that series to be immediately due and payable.
Upon such a declaration, such Principal (or portion thereof) shall be due and
payable immediately. If an Event of Default specified in Section 6.1(3) or (4)
occurs and is continuing, the Principal (or portion thereof) of all the
Securities of that series shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of any series, by notice to the Trustee (and without
notice to any other Securityholder) may rescind an acceleration with respect to
that series and its consequences if the rescission would not conflict with any
judgment or decree and all
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existing Events of Default with respect to Securities of such series have been
cured or waived except nonpayment of the Principal (or portion thereof) of
Securities of such series that has become due solely as a result of such
acceleration and if all amounts due to the Trustee under Section 7.7 have been
paid. No such rescission shall affect any subsequent Default or impair any right
consequent thereto.
SECTION 6.3 Other Remedies If an Event of Default with respect to a
series of Outstanding Securities occurs and is continuing, the Trustee may
pursue any available remedy to (a) collect the payment of the whole amount then
due and payable on such Securities for Principal and interest, with interest
upon the overdue Principal and, to the extent that payment of such interest
shall be legally enforceable, upon overdue installments of interest from the
date such interest was due, at the rate or rates prescribed therefor in such
Securities and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including amounts due the Trustee
under Section 7.7 or (b) enforce the performance of any provision of the
Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.4 Waiver of Past Defaults The Holders of a majority in
aggregate Principal Amount of the Outstanding Securities of any series, by
notice to the Trustee (and without notice to any other Securityholder), may on
behalf of the Holders of all the Securities of such series waive an existing
Default with respect to such series and its consequences except (1) an Event of
Default described in Section 6.1(1) with respect to such series or (2) a Default
in respect of a provision that under Section 9.2 cannot be amended without the
consent of the Holder of each Outstanding Security of such series affected. When
a Default is waived, it is deemed cured, but no such waiver shall extend to any
subsequent or other Default or impair any consequent right.
SECTION 6.5 Control by Majority The Holders of a majority in aggregate
Principal Amount of the Outstanding Securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee with
respect to the Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of other
Securityholders or would involve the Trustee in personal liability.
SECTION 6.6 Limitation on Suits A Holder of any Security of any series
may not pursue any remedy with respect to this Indenture or the Securities
unless:
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(1) the Holder gives to the Trustee written notice stating that an
Event of Default with respect to the Securities of that series is
continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Outstanding Securities of that series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities of that series do not give the Trustee a direction
inconsistent with such request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.7 Rights of Holders to Receive Payment Notwithstanding any
other provision of this Indenture, the right, which is absolute and
unconditional, of any Holder of any Security to receive payment of the Principal
of and (subject to Section 2.13) interest on such Security on the Stated
Maturity or Maturities expressed in such Security (or, in the case of
redemption, on the Redemption Date) held by such Holder, on or after the
respective due dates expressed in the Securities or any Redemption Date, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected adversely without the consent of each
such Holder.
SECTION 6.8 Collection Suit by Trustee If an Event of Default described
in Section 6.1(1) with respect to Securities of any series occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company or the Guarantor, as the case may be, for
the whole amount owing with respect to such series of Securities and the amounts
provided for in Section 7.7.
SECTION 6.9 Trustee May File Proofs of Claim In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company, the Guarantor (if the Securities are Guaranteed Securities) or any
other obligor upon the Securities or the property of the Company, the Guarantor,
as the case may be, or of such other obligor or their creditors, the Trustee
(irrespective of whether the Principal of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company or the Guarantor,
as the case may be, for the payment of overdue Principal or interest) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
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(a) to file and prove a claim for the whole amount of Principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel and any other amount due the Trustee under Section
7.7) and of the Holders of Securities allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any Custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder of Securities to make such payments to the Trustee and, in the event that
the Trustee shall consent to the making of such payments directly to the Holders
of Securities, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee or
the holders of Senior Indebtedness to authorize or consent to or accept or adopt
on behalf of any Holder of a Security any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security in any such proceeding.
SECTION 6.10 Priorities If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order and, in case
of the distribution of such money on account of Principal or interest, upon
presentation of the Securities, 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:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to holders of Senior Indebtedness as provided for in Article
XII;
THIRD: to Securityholders for amounts due and unpaid for the Principal
and interest on the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for Principal
and interest, respectively; and
FOURTH: the balance, if any, to the Company.
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The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Company shall mail to each Securityholder and the Trustee a
notice that states the record date, the payment date and amount to be paid.
SECTION 6.11 Undertaking for Costs In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.7 or a suit by Holders of more
than 10% in aggregate Principal Amount of the Outstanding Securities of any
series, or to any suit instituted by any Holder of any Security for the
enforcement of the payment of the Principal of or interest on any Security on or
after the Stated Maturity or Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
SECTION 6.12 Waiver of Stay, Extension or Usury Laws The Company and
the Guarantor (if the Securities are Guaranteed Securities), in each case,
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company and the
Guarantor, as the case may be, (to the extent that it may lawfully do so),
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
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(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and shall not be liable except
for the performance of such duties; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall not be
liable for any interest on any money received by it except as the Trustee may
otherwise agree with the Company.
SECTION 7.2 Rights of Trustee (a) The Trustee may rely on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
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(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.1 (c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
SECTION 7.3 Individual Rights of Trustee, etc The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates or with the Guarantor
(if the Securities are Guaranteed Securities) or its Affiliates, with the same
rights it would have if it were not Trustee. Any Paying Agent, Registrar or
co-registrar or any other agent of the Company or the Guarantor, as the case may
be, may do the same with like rights. However, the Trustee must comply with
Sections 7.10 and 7.11.
SECTION 7.4 Trustee's Disclaimer The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities. The Trustee
shall not be accountable for the Company's or the Guarantor's (if the
Securities are Guaranteed Securities) use of the proceeds from the Securities
and shall not be responsible for any statement in the registration statement for
the Securities under the Securities Act of 1933, as amended, or in the Indenture
or the Securities (other than its certificate of authentication) or for the
determination as to which beneficial owners are entitled to receive any notices
hereunder.
SECTION 7.5 Notice of Defaults If a Default with respect to the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall give to each Holder of Securities of such series
notice of such Default in the manner set forth in TIA Section 315(b) within 90
days after it occurs. The Trustee shall have no duty to inquire as to the
performance of the Company's or the Guarantor's (if the Securities are
Guaranteed Securities) covenants in Article IV hereof. In addition, the Trustee
shall not be deemed to have knowledge of any Default or Event of Default except
(i) any Event of Default occurring pursuant to Section 4.1 or 6.1(l), or (ii)
any Default or Event of Default of which the Trustee shall have received written
notification or obtained actual knowledge.
SECTION 7.6 Reports by Trustee to Holders Within 60 days after each May
15 beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Holder of Securities a brief report dated as of such May 15
that complies with TIA Section 313(a). The Trustee also shall comply with TIA
Section 313(b) and (c).
A copy of each report at the time of its mailing to Holders of
Securities shall be filed with the SEC and each stock exchange on which the
Securities of that series may be listed. The Company and the Guarantor (if the
Securities are Guaranteed Securities) agrees to notify the Trustee whenever the
Securities of a particular series become listed on any stock exchange and of any
delisting thereof.
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SECTION 7.7 Compensation and Indemnity The Company and the Guarantor
(if the Securities are Guaranteed Securities) each agrees:
(a) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust, 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.
To secure the Company's and the Guarantor's (if the Securities are
Guaranteed Securities) payment obligations in this Section 7.7, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay the Principal of or
interest, if any, on particular Securities.
The Company's and the Guarantor's (if the Securities are Guaranteed
Securities) payment obligations pursuant to this Section 7.7 shall survive the
discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.1(3) or (4), the expenses are
intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.8 Replacement of Trustee The Trustee may resign by so
notifying the Company and the Guarantor (if the Securities are Guaranteed
Securities); provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.8. The
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities of any series at the time outstanding may remove the Trustee with
respect to the Securities of such series by so notifying the Trustee and may
appoint a successor Trustee. The Company and the Guarantor (if the Securities
are Guaranteed Securities) shall remove the Trustee if:
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(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
series, the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall promptly appoint, by resolution of their respective boards of
directors, as applicable, a successor Trustee with respect to the Securities of
that or those 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 series).
In the case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company and
the Guarantor (if the Securities are Guaranteed Securities). Thereupon, the
resignation or removal of the retiring Trustee shall become effective and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
Guarantor (if the Securities 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 wherein each
successor Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not
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retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees as 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 that or
those series to which the appointment of such successor Trustee relates; but, on
request of the Company, the Guarantor (if the Securities 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 that or those
series to which the appointment of such successor Trustee relates, subject,
nevertheless, to its lien, if any, provided for in Section 7.7.
If a successor Trustee with respect to the Securities of any series
does not take office within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company, the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of a majority in aggregate Principal
Amount of the Outstanding Securities of such series at the time outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of any series fails to
comply with Section 7.10, any Holder of a Security of such series may petition
any court of competent jurisdiction for the removal of such Trustee and the
appointment of a successor Trustee.
SECTION 7.9 Successor Trustee by Merger If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 Eligibility; Disqualification The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1) and 310(a)(5). The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b). In determining whether the Trustee has
conflicting interests as defined in TIA Section 310(b)(1), the provisions
contained in the proviso to TIA Section 310(b)(1) shall be deemed incorporated
herein.
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SECTION 7.11 Preferential Collection of Claims Against Company The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE
SECTION 8.1 Discharge of Liability on Securities Except as otherwise
provided as contemplated by Section 2.3(a), when (a) the Company or the
Guarantor (if the Securities are Guaranteed Securities) delivers to the Trustee
for cancellation all Outstanding Securities or all Outstanding Securities of
any series, as the case may be, theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 2.9, and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company or the Guarantor, as the case may be, and thereafter repaid
to the Company or the Guarantor, as the case may be, or discharged from such
trust, as provided in Section 2.6), or (b) all Outstanding Securities or all
Outstanding Securities of any series have become due and payable and the Company
or the Guarantor, as the case may be, deposits with the Trustee cash sufficient
to pay at Stated Maturity the Principal Amount of all Principal of and interest
on such Outstanding Securities (other than Securities replaced pursuant to
Section 2.9), and if in either case the Company or the Guarantor, as the case
may be, pays all other sums payable hereunder by the Company or the Guarantor,
as the case may be, then this Indenture shall, subject to Section 7.7, cease to
be of further effect as to such Outstanding Securities. The Trustee shall join
in the execution of a document prepared by the Company or the Guarantor, as the
case may be, acknowledging satisfaction and discharge of this Indenture on
demand of the Company or the Guarantor, as the case may be, accompanied by an
Officers' Certificate or Guarantor's Officers' Certificate, respectively, and
Opinion of Counsel and at the cost and expense of the Company or the Guarantor,
as the case may be.
SECTION 8.2 Repayment to the Company The Trustee and the Paying Agent
shall return to the Company or the Guarantor (if the Securities are Guaranteed
Securities) on Company Request or Guarantor Request, as the case may be, any
money held by them for the payment of any amount with respect to the Securities
that remains unclaimed for two years; provided, however, that the Trustee or
such Paying Agent, before being required to make any such return, may at the
expense and direction of the Company or the Guarantor, as the case may be, mail
to each Holder of such Securities notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such mailing, any unclaimed money then remaining will be returned to
the Company or the Guarantor, as the case may be. After return to the Company or
the Guarantor, as the case may be, Holders entitled to the money must look to
the Company or the Guarantor, as the case may be, for payment as general
creditors unless an applicable abandoned property law designates another
person.
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SECTION 8.3 Option to Effect Defeasance or Covenant Defeasance Unless
otherwise specified as contemplated by Section 2.3(a) with respect to Securities
of a particular series, the Company may at its option, by Board Resolution, at
any time, with respect to any series of Securities, elect to have either Section
8.4 or Section 8.5 be applied to all of the outstanding Securities of any series
(the "Defeased Securities"), upon compliance with the conditions set forth below
in this Article VIII.
SECTION 8.4 Defeasance and Discharge Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.4, the Company and the
Guarantor (if the Securities are Guaranteed Securities) each shall be deemed to
have been discharged from its obligations with respect to the Defeased
Securities on the date the conditions set forth below are satisfied (hereinafter
"defeasance"). For this purpose, such defeasance means that the Company and the
Guarantor, as the case may be, shall be deemed to have paid and discharged the
entire indebtedness represented by the defeased Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Sections 2.4,
2.5, 2.6, 2.9, 2.11, 2.12, 4.1, 4.5, 6.6, 6.7, 7.7, 7.8 and 8.2 of this
Indenture and to have satisfied all its other obligations under such series of
Securities and this Indenture insofar as such series of Securities are concerned
(and the Trustee, at the expense of the Company and, upon written request, shall
execute proper instruments acknowledging the same). Subject to compliance with
this Article VIII, the Company may exercise its option under this Section 8.4
notwithstanding the prior exercise of its option under Section 8.5 with respect
to a series of Securities.
SECTION 8.5 Covenant Defeasance Upon the Company's exercise under
Section 8.3 of the option applicable to this Section 8.5, the Company and the
Guarantor, as the case may be, shall be released from its obligations under
Sections 4.2 and 4.3 and Article V and such other provisions as may be provided
as contemplated by Section 2.3(a) with respect to Securities of a particular
series and with respect to the Defeased Securities on and after the date the
conditions set forth below are satisfied (hereinafter "covenant defeasance"),
and the Defeased Securities shall thereafter be deemed to be not "outstanding"
for the purposes of any direction, waiver, consent or declaration or act of
Holders (and the consequences if any thereof) in connection with such covenants,
but shall continue to be deemed "outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to the
Defeased Securities, the Company and the Guarantor, as the case may be, 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 Article, whether directly or
indirectly, by reason of any reference elsewhere herein to any such Section or
Article or by reason of any reference in any such Section or Article to any
other provisions herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under Section 6.1 but,
except as specified above, the remainder of this Indenture and such Defeased
Securities shall be unaffected thereby.
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SECTION 8.6 Condition to Defeasance or Covenant Defeasance The
following shall be the conditions to application of either Section 8.4 or
Section 8.5 to a series of outstanding Securities.
(a) The Company or the Guarantor (if the Securities are Guaranteed
Securities) shall have irrevocably deposited with the Trustee, in trust, (i)
sufficient funds to pay the Principal of and interest to Stated Maturity (or
redemption) on, the Securities of such series, or (ii) such amount of direct
obligations of, or obligations the principal of and interest on which are fully
guaranteed by, the government of the United States, and which are not subject to
prepayment, redemption or call, as will, together with the predetermined and
certain income to accrue thereon without consideration of any reinvestment
thereof, be sufficient to pay when due the Principal of, and interest to Stated
Maturity (or redemption) on, the Securities of such series.
(b) The Company shall have delivered to the Trustee an opinion of
counsel to the effect that the funds deposited pursuant to Section 8.6(a) will
not be subject to any rights of the holders of Senior Indebtedness.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures without Consent of Holders Without
the consent of any Holders of Securities, the Company, the Guarantor (if the
Securities are Guaranteed Securities) 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 corporation to the Company
or the Guarantor, as the case may be, and the assumption by any such
successor of the covenants of the Company or the Guarantor, as the case
may be, herein and in the Securities; or
(2) to add to the covenants, agreements and obligations of the
Company or the Guarantor, as the case may be, for the benefit of the
Holders of all of the Securities or any series thereof, or to surrender
any right or power herein conferred upon the Company or the Guarantor, as
the case may be; or
(3) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.3(a), respectively; or
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(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 7.8; or
(5) to cure any ambiguity, defect or inconsistency; or
(6) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more
series of Securities), provided that any such addition, change or
elimination shall neither (A) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (B) modify the rights of the Holder of any
such Security with respect to such provision; or
(7) to secure the Securities; or
(8) to make any other change that does not adversely affect the
rights of any Securityholder.
SECTION 9.2 Supplemental Indentures with Consent of Holders With the
written consent of the Holders of at least a majority in aggregate Principal
Amount of the Outstanding Securities of each series affected by such
supplemental indenture, the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Trustee may amend this Indenture or the
Securities of any series or 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 the Securities of such
series under this Indenture; provided, however, that no such amendment or
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 any
installment of Principal of or interest on, any such Security, or reduce
the Principal Amount thereof or the rate of interest thereon or any
premium payable upon redemption thereof or reduce the amount of Principal
of any such Discount Security that would be due and payable upon a
declaration of acceleration of maturity thereof pursuant to Section 6.2,
or change the Place of Payment, or change the coin or currency in which
any Principal of, or any installment of interest on, any such Security is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
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(2) reduce the percentage in Principal Amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such amendment or supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences
with respect to the Securities of such series provided for in this
Indenture;
(3) make any change in the terms of the Subordination of the
Securities in a manner adverse to the Holders of any series of
outstanding Securities; or
(4) modify any of the provisions of this Section, Section 6.4 or 6.7,
except to increase the percentage of Outstanding Securities of such
series required for such actions 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.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of 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.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment or
supplemental indenture, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment or supplemental indenture under this Section 9.2
becomes effective, the Company and the Guarantor (if the Securities are
Guaranteed Securities) shall mail to each Holder of the particular Securities
affected thereby a notice briefly describing the amendment.
SECTION 9.3 Compliance with Trust Indenture Act Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.4 Revocation and Effect of Consents, Waivers and Actions
Until an amendment or waiver with respect to a series of Securities becomes
effective, a consent to it or any other action by a Holder of a Security of that
series hereunder is a continuing consent by the Holder and every subsequent
Holder of that Security or portion of that Security that evidences the same
obligation as the consenting Holder's Security, even if notation of the consent,
waiver or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation
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before the Company or the Guarantor (if the Securities are Guaranteed
Securities) or an agent of the Company or the Guarantor, as the case may be,
certifies to the Trustee that the consent of the requisite aggregate Principal
Amount of the Securities of that series has been obtained. After an amendment,
waiver or action becomes effective, it shall bind every Holder of Securities of
that series.
The Company or the Guarantor (if the Securities are Guaranteed
Securities) may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment or
waiver with respect to a series of Securities. If a record date is fixed, then
notwithstanding the first two sentences of the immediately preceding paragraph,
those persons who were Holders of Securities of that series at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective for
more than 90 days after such record date.
SECTION 9.5 Notation on or Exchange of Securities Securities of any
series authenticated and delivered after the execution of any supplemental
indenture with respect to such series 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 Company and the
Guarantor (if the Securities are Guaranteed Securities) shall so determine, new
Securities of such series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and the Guarantor, as the case may be, and
authenticated and delivered by the Trustee in exchange for outstanding
Securities of that series.
SECTION 9.6 Trustee to Sign Supplemental Indentures The Trustee shall
sign any supplemental indenture authorized pursuant to this Article 9 if the
amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment, the Trustee shall be entitled to receive, and
(subject to the provisions of Section 7.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture.
SECTION 9.7 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 shall be bound thereby, except
to the extent otherwise set forth thereon.
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ARTICLE X
SINKING FUNDS
SECTION 10.1 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 2.3(a) for
Securities of such series.
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 Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 10.2. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of the
Securities of such series.
SECTION 10.2 Satisfaction of Sinking Fund Payments with Securities The
Company (1) may deliver Outstanding Securities of a series with the same issue
date, interest rate and Stated Maturity (other than any previously called for
redemption), and (2) may apply as a credit Securities of a series with the same
issue date, interest rate and Stated Maturity which have been redeemed either at
the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, in each case, in satisfaction of all or any part of
any mandatory sinking fund payment with respect to the Securities of such series
with the same issue date, interest rate and Stated Maturity; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 10.3 Redemption of Securities for Sinking Fund Not less than 60
days (or such shorter period as shall be acceptable to the Trustee) prior to
each sinking fund payment date for any series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next sinking fund payment for that series pursuant to the terms of that series,
the portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 10.2 and will also deliver to the
Trustee any Securities to be so delivered. Not less than 30 days before each
such sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.2 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.3. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.4 and 3.6.
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ARTICLE XI
ACTIONS OF HOLDERS OF SECURITIES
SECTION 11.1 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 11.2 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 11.1, to be held at such time and at such place in the
Borough of Manhattan, the City of New York or, with the approval of the Company
or the Guarantor (if the Securities are Guaranteed Securities), at any other
place. 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 13.2, not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Company, the Guarantor (if the Securities
are Guaranteed Securities) or the Holders of at least 10% in Principal Amount of
the Outstanding Securities of any series shall have requested the Trustee to
call a meeting of the Holders of Securities of such series for any purpose
specified in Section 11.1, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company, the Guarantor (if the Securities
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 Borough of Manhattan, the City of New York, or in such other place as
shall be determined and approved by the Company or the Guarantor, as the case
may be, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section 11.2.
SECTION 11.3 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
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel, any representatives of the Company and its counsel, and any
representatives of the Guarantor (if the Securities are Guaranteed Securities)
and its counsel.
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SECTION 11.4 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. In the absence of
a quorum within 30 minutes of 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 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 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 11.2(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 an 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 9.2, 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 that series;
provided, however, that, except as limited by the proviso to Section 9.2, 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 that 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, whether or not present
or represented at the meeting.
SECTION 11.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings (a) Notwithstanding any other 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 shall
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deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 11.7 and the appointment of any proxy shall be proved in the manner
specified in Section 11.7. 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 11.7 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company, the Guarantor (if the Securities are Guaranteed Securities) or by
Holders of Securities as provided in Section 11.2 (b), in which case the
Company, the Guarantor (if the Securities are Guaranteed Securities) or the
Holders of Securities of the series calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the persons
entitled to vote a majority in Principal Amount of the Outstanding 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 vote with respect to the Outstanding Securities of such
series held or represented by him; provided, however, that no vote shall be cast
or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.2 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 11.6 Counting Votes and Recording Action of Meetings The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed signatures of
the Holders of Securities of such series or of their representatives by proxy
and the Principal Amounts and serial 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 said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
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provided in Section 11.2 and, if applicable, Section 11.4. 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 Company and the
Guarantor (if the Securities 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 11.7 Actions of Holders Generally (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing. 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, where it is
hereby expressly required, to the Company or the Guarantor (if the Securities
are Guaranteed Securities). 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 (subject to
Section 7.1) conclusive in favor of the Trustee and the Company and the
Guarantor (if the Securities are Guaranteed Securities), 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 11.6.
(b) The fact and date of the execution by any person of any such
instrument or writing, or the authority of the persons executing the same, may
be proved in any reasonable manner which the Trustee deems sufficient.
(c) The Principal Amount and serial numbers of Securities held by the
person, and the date of holding the same, shall be proved by the books of the
Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other act of the Holder of any Security in accordance with this
Section 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 or the Company or the Guarantor (if the Securities are
Guaranteed Securities) in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company or the Guarantor (if the Securities are Guaranteed
Securities) shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other act in accordance with this Section,
the Company or the Guarantor, as the case may be, may, at its option, by or
pursuant to an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, delivered to the Trustee, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or such other act, but the
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Company or the Guarantor, as the case may be, shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for the purposes of determining whether
Holders of the requisite percentage of Outstanding Securities or Outstanding
Securities of a series, as the case may be, 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 or
Outstanding Securities of the series, as the case may be, shall be computed as
of such record date; provided, that no such authorization, agreement or consent
by the Holders on the record date shall be deemed effective unless such request,
demand, authorization, direction, notice, consent, waiver or other act shall
become effective pursuant to the provisions of clause (a) of this Section 11.7
not later than six months after the record date.
ARTICLE XII
SUBORDINATION
SECTION 12.1 Securities Subordinate to Senior Indebtedness Unless
otherwise specified as contemplated by Section 2.3(a), the Securities shall be
subordinated to Senior Indebtedness as set forth in this Article XII. The
Company and the Guarantor, as applicable, each covenants and agrees, and each
Holder of a Security of any series by such Holder's acceptance thereof likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article XII, the indebtedness represented by the Securities and
the payment of the Principal Amount, interest and such other amounts as provided
for in Section 2.3(a), if any, in respect of each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest on (including interest accruing after the filing of a petition
initiating any proceeding pursuant to any Bankruptcy Law, but only to the extent
allowed or permitted to the holder of such Debt of the Company against the
bankruptcy or any other insolvency estate of the Company in such proceeding)
and other amounts due on or in connection with any Debt of the Company incurred,
assumed or guaranteed by the Company, whether outstanding on the date of the
Indenture or thereafter incurred, assumed or guaranteed and all renewals,
extensions and refundings of any such Debt of the Company; provided, however,
that the following will not constitute Senior Indebtedness:
(a) any Debt of the Company as to which, in the instrument creating the
same or evidencing the same or pursuant to which the same is outstanding,
it is expressly provided that such Debt of the Company shall be
subordinated to any other Debt of the Company, unless such Debt of the
Company expressly provides that such Debt of the Company shall be senior
in right of payment to the Securities;
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(b) any Debt of the Company which by its terms states that such Debt of
the Company shall not be senior in right of payment to the Securities;
(c) Debt of the Company in respect of the Securities; and
(d) any Debt of the Company to any Affiliate of the Company or Subsidiary
of the Company.
SECTION 12.2 Payment Over of Proceeds upon Dissolution, Etc. Upon any
distribution of assets of the Company or the Guarantor (if the Securities are
Guaranteed Securities) in the event of:
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or the
Guarantor, as the case may be, or to their respective creditors, as such,
or to their respective assets, or
(b) any liquidation, dissolution or other winding up of the Company
or the Guarantor (if the Securities are Guaranteed Securities), whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company or the Guarantor (if
the Securities are Guaranteed Securities), then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of
all Senior Indebtedness, or provision shall be made for such payment in
cash, before the Holders of the Securities are entitled to receive any
payment on account of the Principal Amount, interest or such other
amounts as may be provided for in Section 2.3(a), if any, in respect of
the Securities; and
(2) any payment or distribution of assets of the Company or the
Guarantor (if the Securities are Guaranteed Securities) of any kind or
character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article XII, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company or the Guarantor (if the Securities are
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Guaranteed Securities) being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to
the holders of Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably according to the aggregate amounts remaining unpaid
on account of the principal of, and premium, if any, and interest on the
Senior Indebtedness held or represented by each, to the extent necessary
to make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 12.2, the Trustee or the Holder of any Security shall receive any
payment or distribution of assets of the Company or the Guarantor (if the
Securities are Guaranteed Securities) of any kind or character, whether in cash,
property or securities, including any such payment or distribution which may be
payable or deliverable by reason of the payment of any other Debt of the Company
or the Guarantor (if the Securities are Guaranteed Securities) being
subordinated to the payment of the Securities, before all Senior Indebtedness is
paid in full or payment thereof provided for, and if such fact shall then have
been made known to the Trustee as provided in Section 12.10, or, as the case may
be, such Holder, then and in such event such payment or distribution shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other person making payment
or distribution of assets of the Company or the Guarantor (if the Securities are
Guaranteed Securities) for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
For purposes of this Article XII only, the words "cash, property or
securities," or any combination thereof, shall not be deemed to include shares
of Capital Stock of the Company or the Guarantor (if the Securities are
Guaranteed Securities) as reorganized or readjusted, or securities of the
Company or the Guarantor (if the Securities are Guaranteed Securities) or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinated, at least to the extent provided in this
Article XII with respect to the Securities, to the payment of all Senior
Indebtedness which may at the time be outstanding; provided, however, that (i)
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
the Senior Indebtedness are not, without the consent of such holders, altered,
in any manner adverse to such holders, by such reorganization or readjustment.
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The consolidation of the Company or the Guarantor (if the Securities
are Guaranteed Securities) with, or the merger of the Company or the Guarantor
(if the Securities are Guaranteed Securities) into, another corporation or the
liquidation or dissolution of the Company or the Guarantor (if the Securities
are Guaranteed Securities) following the conveyance or transfer of all or
substantially all of its assets to another person upon the terms and conditions
set forth in Article V shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company or the Guarantor (if the
Securities are Guaranteed Securities) for the purposes of this Section 12.2 if
the corporation formed by such consolidation or into which the Company or the
Guarantor (if the Securities are Guaranteed Securities) is merged or the person
which acquires by conveyance or transfer all or substantially all of the assets
of the Company or the Guarantor (if the Securities are Guaranteed Securities),
as the case may be, shall, as a part of such consolidation, merger, conveyance
or transfer, comply with the conditions set forth in Article V.
SECTION 12.3 Acceleration of Securities In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.2, then and in each such event the Company and the Guarantor (if the
Securities are Guaranteed Securities) shall promptly notify holders of Senior
Indebtedness of such acceleration. The Company or the Guarantor, as the case may
be, may not pay the Securities until 120 days have passed after such
acceleration occurs and may thereafter pay the Securities if this Article XII
permits the payment at that time.
In the event that, notwithstanding the foregoing, the Company and the
Guarantor (if the Securities are Guaranteed Securities) shall make any payment
to the Trustee or the Holder of any Securities prohibited by the foregoing
provisions of this Section 12.3, and if such facts then shall have been known or
thereafter shall have been made known to the Trustee (as provided in Section
12.10) or to such Holder, as the case may be, pursuant to the terms of this
Indenture, then and in each such event such payment shall be paid over and
delivered forthwith to the Company or the Guarantor, as the case may be, for the
benefit of the holders of Senior Indebtedness by or on behalf of the person
holding such payment.
The provisions of this Section 12.3 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.4 Default in Senior Indebtedness The Company and the
Guarantor (if the Securities are Guaranteed Securities) may not make any payment
of the Principal Amount, interest or other such amounts as may be provided for
in Section 2.3(a), if any, in respect of the Securities and may not acquire any
Securities for cash or property (other than for Capital Stock of the Company)
if:
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(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity;
and
(2) the default is the subject of judicial proceedings or the Company
or the Guarantor, as the case may be, receives a notice of default
thereof from any person who may give such notice pursuant to the
instrument evidencing or document governing such Senior Indebtedness. If
the Company or the Guarantor, as the case may be, receives any such
notice, then a similar notice received within nine months thereafter
relating to the same default on the same issue of Senior Indebtedness
shall not be effective for purposes of this Section 12.4.
The Company or the Guarantor, as the case may be, may resume payments
on the Securities and may acquire Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company or the
Guarantor (if the Securities are Guaranteed Securities) of the notice
described in clause (2) above and the default is not then the subject of
judicial proceedings; and this Article XII otherwise permits the payment
or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company or the
Guarantor, as the case may be, shall make any payment to the Trustee or the
Holder of any Security prohibited by the foregoing provisions of this Section
12.4, and if such fact then shall have been known or thereafter shall have been
made known to the Trustee as provided in Section 12.10 or such Holder, as the
case may be, pursuant to the terms of this Indenture, then and in each such
event such payment shall be paid over and delivered forthwith to the Company or
the Guarantor, as the case may be, for the benefit of the holders of the Senior
Indebtedness by or on behalf of the person holding such payment.
The provisions of this Section 12.4 shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 12.5 Payment Permitted if No Default Nothing contained in this
Article XII or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company or the Guarantor (if the Securities are Guaranteed
Securities), at any time except during the pendency of any case, proceeding,
dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company or the
Guarantor, as the case may be, referred to in Section 12.2 or under the
conditions described in Section 12.3 or 12.4, from making payments at any time
of the Principal Amount, interest or such other amounts as may be provided for
in Section 2.3(a), if any, as the case may be, in respect of the Securities, or
(b) the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the
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payment of or on account of the Principal Amount, interest or such other amounts
as may be provided for in Section 2.3(a), if any, as the case may be, in respect
of the Securities if the Trustee did not have, at the time provided in the
proviso to the first paragraph of Section 12.10, notice that such payment would
have been prohibited by the provisions of this Article XII.
SECTION 12.6 Subrogation Rights of Holders of Senior Indebtedness
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article XII to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities applicable to
the Senior Indebtedness until the Principal Amount, interest or such other
amounts as provided for in Section 2.3(a), if any, as the case may be, in
respect of the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness of any cash, property or securities to which the Holders of the
Securities or the Trustee would be entitled except for the provisions of this
Article XII, and no payments pursuant to the provisions of this Article XII to
the Company or to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness and the Holders of the Securities, be deemed
to be a payment or distribution by the Company or the Guarantor (if the
Securities are Guaranteed Securities) to or on account of the Senior
Indebtedness.
SECTION 12.7 Provision Solely to Define Relative Rights The provisions
of this Article XII are intended solely for the purpose of defining the relative
rights of the Holders of the Securities, on one hand, and the holders of Senior
Indebtedness, on the other hand. Nothing contained in this Article XII or
elsewhere in this Indenture or in the Securities is intended to or shall:
(a) impair, as among the Company, the Guarantor (if the Securities are
Guaranteed Securities) and the Holders of the Securities, the obligation of the
Company and the Guarantor, as the case may be, which is absolute and
unconditional, to pay to the Holders of the Securities the Principal Amount,
interest or such other amounts as may be provided for in Section 2.3(a), if any,
as the case may be, in respect of the Securities as and when the same shall
become due and payable in accordance with the terms of the Securities and this
Indenture and which, subject to the rights under this Article XII of the holders
of Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company and the Guarantor (if the Securities are Guaranteed
Securities); or
(b) affect the relative rights against the Company or the Guarantor
(if the Securities are Guaranteed Securities) of the Holders of the
Securities and creditors of the Company or the Guarantor (if the
Securities are Guaranteed Securities) other than holders of Senior
Indebtedness; or
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(c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article XII of
the holders of Senior Indebtedness to receive cash, property or
securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 12.8 Trustee to Effectuate Subordination Each Holder of a
Security by such Holder's acceptance thereof authorizes and directs the Trustee
on such Holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XII and appoints the
Trustee such Holder's attorney-in-fact for any and all such purposes.
SECTION 12.9 No Waiver of Subordination Provisions No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or the Guarantor (if the
Securities are Guaranteed Securities) or by any act or failure to act, in good
faith, by any such holder, or by any noncompliance by the Company or the
Guarantor (if the Securities are Guaranteed Securities) with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of, or notice to, the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Holders of the Securities to the holders
of Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise dispose of any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any person liable in any manner for the
collection of Senior Indebtedness and (iv) exercise or refrain from exercising
any rights against the Company or the Guarantor (if the Securities are
Guaranteed Securities) or any other person.
SECTION 12.10 Notice to Trustee The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities. Failure
to give such notice shall not affect the subordination of the Securities to
Senior Indebtedness. Notwithstanding the provisions of this Article XII or any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of the Securities, unless and until the
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Trustee shall have received written notice thereof at the address specified in
Section 13.2 from the Company or a holder of Senior Indebtedness or from any
trustee or agent therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 7.1, shall be entitled in all
respects to assume that no such facts exist; provided, however, that if a Trust
Officer of the Trustee shall not have received, at least three Business Days
prior to the date upon which by the terms hereof any such money may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, interest or such other amounts as may be provided for in
Section 2.3(a), if any, as the case may be, in respect of any Security), the
notice with respect to such money provided for in this Section 12.10, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a person representing
himself to be a holder of Senior Indebtedness (or a trustee or agent on behalf
of such holder) to establish that such notice has been given by a holder of
Senior Indebtedness (or a trustee or agent on behalf of any such holder). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XII, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article XII, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating
Agent Upon any payment or distribution of assets of the Company or the Guarantor
(if the Securities are Guaranteed Securities) referred to in this Article XII,
the Trustee, subject to the provisions of Section 7.1, and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
Senior Indebtedness and other indebtedness of the Company or the Guarantor (if
the Securities are Guaranteed Securities), the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article XII.
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SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Indebtedness
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if the Trustee
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
XII or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 13.2. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article XII and no implied covenants or obligations with respect
to holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 12.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article XII with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.7.
SECTION 12.14 Article XII Applicable to Paying Agents The term
"Trustee" as used in this Article XII shall (unless the context otherwise
requires) be construed as extending to and including the Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named
in this Article XII in addition to or in place of the Trustee; provided,
however, that Sections 12.10 and 12.12 shall not apply to the Company or the
Guarantor (if the Securities are Guaranteed Securities) or any Affiliate of the
Company or the Guarantor (if the Securities are Guaranteed Securities) if it or
such Affiliate acts as Paying Agent.
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ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Trust Indenture Act Controls If any provision of this
Indenture limits, qualifies or conflicts with another provision hereof which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.2 Notices Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
AIMCO Properties, L.P.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
if to the Guarantor:
Apartment Investment and Management Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: [ ]
if to the Trustee:
United States Trust Company of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
The Company, the Guarantor (if the Securities are Guaranteed
Securities) or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication given to a Holder of Securities shall be
mailed to such Securityholder at the Securityholder's address as it appears on
the registration books of the Registrar and shall be sufficiently given if so
mailed within the time prescribed.
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Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other Holders of
Securities of the same series. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
If the Company or the Guarantor (if the Securities are Guaranteed
Securities) mails a notice or communication to the Holders of Securities of a
particular series, it shall mail a copy to the Trustee and each Registrar,
co-registrar or Paying Agent, as the case may be, with respect to such series.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give notice to Holders of
Securities by mail, then such notification as shall be made with the acceptance
of the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided herein.
SECTION 13.3 Communication by Holders with Other Holders
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantor (if the Securities are Guaranteed
Securities) and the Trustee, the Registrar or the Paying Agent with respect to a
particular series of Securities, and anyone else, shall have the protection of
TIA Section 312(c).
SECTION 13.4 Certificate and Opinion as to Conditions Precedent Upon
any request or application by the Company or the Guarantor (if the Securities
are Guaranteed Securities) to the Trustee to take any action under this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee:
(1) an Officers' Certificate or Guarantor's Officers' Certificate, as
the case may be, stating that, in the opinion of the signers, all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 13.5 Statements Required in Certificate or Opinion Each
Officers' Certificate, Guarantor's Officers' Certificate (if the Securities are
Guaranteed Securities) or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) statement that each person making such Officers' Certificate,
Guarantor's Officers' Certificate (if the Securities are Guaranteed
Securities) or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Guarantor's Officers' Certificate (if the
Securities are Guaranteed Securities) or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 13.6 Separability Clause In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 13.7 Rules by Trustee, Paying Agent and Registrar With respect
to the Securities of a particular series, the Trustee with respect to such
series of Securities may make reasonable rules for action by or a meeting of
Holders of such series of Securities. With respect to the Securities of a
particular series, the Registrar and the Paying Agent with respect to such
series of Securities may make reasonable rules for their functions.
SECTION 13.8 Legal Holidays A "Legal Holiday" is any day other than a
Business Day. If any specified date (including an Interest Payment Date,
Redemption Date or Stated Maturity of any Security, or a date for giving notice)
is a Legal Holiday at any Place of Payment or place for giving notice, then
(notwithstanding any other provision of this Indenture or of the Securities
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section) payment of interest or
Principal need not be made at such Place of Payment, or such other action need
not be taken, on such date, but the action shall be taken on the next succeeding
day that is not a Legal Holiday at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or Redemption Date, or at the
Stated Maturity or such other date and to the extent applicable no Original
Issue Discount or interest, if any, shall accrue for the intervening period.
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SECTION 13.9 Governing Law THIS INDENTURE AND THE SECURITIES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 13.10 No Recourse Against Others A director, officer, employee
or stockholder, as such, of the Company or the Guarantor (if the Securities are
Guaranteed Securities) shall not have any liability for any obligations of the
Company or the Guarantor, as the case may be, under the Securities or this
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Holder of such
Security shall waive and release all such liability. The waiver and release
shall be part of the consideration for the issue of the Securities.
SECTION 13.11 Successors All agreements of the Company or the Guarantor
(if the Securities are Guaranteed Securities) in this Indenture and the
Securities shall bind its respective successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 13.12 Effect of Headings and Table of Contents The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 13.13 Benefits of Indenture Nothing in this Indenture or in the
Securities, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder and the Holders of Securities, any
benefits or any legal or equitable right, remedy or claim under this Indenture.
SECTION 13.14 Multiple Originals The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
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ARTICLE XIV
GUARANTEES
SECTION 14.1 Guarantee The Guarantee set forth in this Article XIV
shall only be in effect with respect to Securities of a series to the extent
such Guarantee is made applicable to such series in accordance with Section 2.3.
The Guarantor 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, any premium and interest 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, by acceleration, redemption,
repayment or otherwise, in accordance with the terms of such Security and of
this Indenture. In case of the failure of the Company punctually to pay any such
principal, premium, interest or sinking fund payment, the Guarantor 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
Company.
The Guarantor hereby agrees that its obligations hereunder 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 Company 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 Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium or interest on, and sinking
fund payment required with respect to, the Guaranteed Securities and the
complete performance of all other obligations contained in the Guaranteed
Securities.
This Guarantee 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 restricted or must otherwise be restored to the Company or the
Guarantor upon the bankruptcy, liquidation or reorganization of the Company or
otherwise.
The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Company in respect of any amounts paid to such
Holder by the
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Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor 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,
any premium and interest on, and sinking fund payments required with respect to,
all Guaranteed Securities shall have been paid in full.
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AIMCO PROPERTIES, L.P.
AIMCO-GP, INC.
its General Partner
By:
----------------------------------
Name:
Title:
Attest:
--------------------------------------------
Name:
Title:
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY, as Guarantor, if applicable
By:
----------------------------------
Name:
Title:
Attest:
--------------------------------------------
Name:
Title:
- ▇▇ -
▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ TRUST COMPANY OF NEW
YORK,
as Trustee
By:
----------------------------------
Name:
Title:
Attest:
--------------------------------------------
Name:
Title:
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