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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 18, 1997
BRE PROPERTIES, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Maryland 0-5305 94-1722214
(STATE OR OTHER (COMMISSION FILE (I.R.S. EMPLOYER
JURISDICTION OF NUMBER) IDENTIFICATION
INCORPORATION OR NUMBER)
ORGANIZATION)
One Montgomery Street
Telesis Tower, Suite 2500
San Francisco, California 14104 94104-5525
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
(415) 445-6530
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(REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE)
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ITEM 5. OTHER EVENTS
On June 18, 1997, BRE Properties, Inc. (the "Company") executed an Underwriting
Agreement (the "Underwriting Agreement") in connection with the public offering
of $50,000,000 aggregate principal amount of its 7.20% Notes due 2007 (the
"Notes") under the Company's shelf registration statement on Form S-3 (File No.
333-24915), effective May 7, 1997 (the "Registration Statement"). The Notes
will be issued pursuant to an Indenture (the "Indenture") between the Company
and Chase Trust Company of California, as trustee.
This Current Report on Form 8-K shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any offer of the Notes in any
state in which such offer, solicitation or sale would be unlawful prior to the
registration or qualification under the securities laws of any such state.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
Exhibit No. Description
1 Underwriting Agreement, dated June 18, 1997, with respect to
the Notes, by and among the Company, Morgan Stanley & Co.
Incorporated, BancAmerica Securities, Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Brothers Inc
4.1 Indenture, dated June 23, 1997, between the Company and Chase
Trust Company of California, as trustee
4.2 Form of the Notes
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BRE PROPERTIES, INC.
Date: June 20, 1997 By: /s/ Frank C. McDowell
---------------------------
Frank C. McDowell
President and
Chief Executive Officer
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EXHIBIT INDEX
Exhibit No. Description
1 Underwriting Agreement, dated June 18, 1997, with respect to
the Notes, by and among the Company, Morgan Stanley & Co.
Incorporated, BancAmerica Securities, Inc., Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Brothers Inc.
4.1 Indenture, dated June 23, 1997, between the Company and Chase
Trust Company of California, as trustee.
4.2 Form of the Notes
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EXHIBIT 1
$50,000,000
BRE PROPERTIES, INC.
7.20% Notes due 2007
UNDERWRITING AGREEMENT
June 18, 1997
Morgan Stanley & Co. Incorporated
BancAmerica Securities, Inc.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Brothers Inc,
As Representatives of the several Underwriters
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
1. INTRODUCTORY. BRE Properties, Inc., a corporation organized under the
laws of the State of Maryland (the "Company"), proposes to issue and sell,
pursuant to the terms of this Agreement, to the several Underwriters named in
Schedule A hereto (the "Underwriters" which term also shall include any
underwriter substituted as hereinafter provided in Section 10), $50,000,000
aggregate principal amount of its 7.20% Notes due 2007 (the "Securities") to be
issued pursuant to an Indenture dated as of June 23, 1997 (the "Indenture")
between the Company and Chase Trust Company of California, as trustee (the
"Trustee").
Morgan Stanley & Co. Incorporated, BancAmerica Securities, Inc., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Salomon Brothers Inc are acting
as representatives
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of the several underwriters and in such capacity are hereinafter referred to as
the "Representatives".
2. (a) REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the several Underwriters, as of the date hereof and
as of the Closing Date (as defined in Section 3), and agrees with the several
Underwriters, as follows:
(i) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3
(No. 333-24915) for the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of the Securities and certain other securities
and has filed such amendments thereto, if any, as may have been required to
the date hereof. Such registration statement (including all exhibits
thereto, and all documents incorporated or deemed to be incorporated by
reference therein and the information, if any, deemed to be a part thereof
pursuant to Rule 430A(b) of the rules and regulations of the Commission
under the 1933 Act (the "Rules and Regulations")), as amended (if
applicable) at the time such registration became effective, and as from
time to time amended or supplemented pursuant to the 1933 Act, the
Securities Exchange Act of 1934, as amended (the "1934 Act"), or otherwise,
is hereinafter referred to as the "Registration Statement." The Company
proposes to file with the Commission pursuant to Rule 424(b) of the Rules
and Regulations the Prospectus Supplement (as defined in Section 4(i)
hereof) and the related prospectus dated June 18, 1997 (the "Base
Prospectus"), and has previously advised you of all information (financial
and other) set forth therein. The Base Prospectus and the Prospectus
Supplement, each in the form first provided to the Underwriters by the
Company for use in connection with the offering of the Securities (being
the forms in which they are to be filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations), including all documents
incorporated or deemed to be incorporated by reference therein, are
hereinafter referred to, collectively, as the "Prospectus", except that if
any revised prospectus or prospectus supplement shall be provided to the
Underwriters by the Company for use in connection with the offering and
sale of the Securities which differs from the Prospectus first provided to
the Underwriters for such purpose (whether or not such revised prospectus
or prospectus supplement is required to be filed by the Company with the
Commission pursuant to Rule 424(b) of the Rules and Regulations), the term
"Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first
provided to the Underwriters for such use. Unless the context otherwise
requires, all references in this Agreement to documents, financial
statements and schedules and other information which is "contained",
"included", "stated", "described in" or "referred to" in the Registration
Statement or the Prospectus (and all other references of like import) shall
be deemed to mean and include all such documents, financial statements and
schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to
the Registration Statement or the Prospectus shall be deemed to mean and
include the filing of any document under the 1934 Act after the date of
this Agreement which is or is deemed to be incorporated by reference in the
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Registration Statement or the Prospectus, as the case may be. For purposes
of this Agreement, all references to the Registration Statement, any
preliminary prospectus supplement, any preliminary prospectus, the
Prospectus Supplement, the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("EDGAR").
(ii) The Registration Statement has become effective under the 1933
Act, and no stop order suspending the effectiveness of the Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended (the "1939 Act"), and the Trustee has duly filed with the
Commission a Statement of Eligibility on Form T-1 as part of the
Registration Statement.
At the respective times the Registration Statement and any
post-effective amendments thereto became or become effective, as the case
may be, and at the Closing Date, the Registration Statement complied and
will comply in all material respects with the requirements of the 1933 Act
and the Rules and Regulations and with the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act
Regulations"), and did not and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus does not and will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the foregoing
representations, warranties and agreements shall not apply to information
contained in or omitted from the Registration Statement or the Prospectus
in reliance upon, and in conformity with, written information furnished to
the Company by or on behalf of any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof.
Any preliminary prospectus supplement, any preliminary
prospectus and the Prospectus and any amendment or supplement thereto
delivered to the Underwriters for use in connection with the offering of
the Securities was identical to the respective electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they were
filed with the Commission, complied in all material respects to the
requirements of the 1934 Act and the published rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein,
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in the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated or deemed
to be incorporated by reference, when they are filed with the Commission,
will comply in all material respects to the requirements of the 1934 Act
and the published rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(iv) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement). Since the respective
dates as of which information is given in the Registration Statement and
the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), except as otherwise stated
therein or contemplated thereby, (A) there has been no change in the
consolidated capital stock or the consolidated long-term debt of the
Company, (B) there have been no transactions entered into by the Company or
any of its subsidiaries which are material to the Company and its
subsidiaries considered as one enterprise, other than those entered into in
the ordinary course of its business, and (C) except for regular quarterly
dividends, there has been no dividend or distribution of any kind declared,
paid or made by the Company on its shares of capital stock.
(v) The financial statements of the Company, of Promontory Point
Apartments ("PPA"), of Red Hawk Ranch ("RHR"), and of Foster's Landing
Apartments ("FLA"), included in the Registration Statement and the
Prospectus, in each case, together with the related notes and supporting
schedules (if any), present fairly the financial position of the Company,
of PPA, of RHR, and of FLA, respectively, at the dates indicated and the
results of operations, cash flows and shareholders' equity or partners'
capital, as the case may be, of the Company and the gross income and direct
operating expenses of PPA, of RHR, and of FLA, respectively, as at the
respective dates and for the respective periods therein indicated, and such
financial statements and related notes and supporting schedules have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved,
except as may be set forth therein or in the Prospectus. The selected
financial data and the summary financial information included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the Company's audited financial
statements included in the Registration Statement.
(vi) The accountants who have certified the financial statements and
supporting schedules included in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933 Act
and the Rules and Regulations.
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(vii) The pro forma condensed financial statements, together with the
related notes and any supporting schedules, included in the Registration
Statement and the Prospectus present fairly the information shown therein,
have been prepared on a basis substantially consistent with the audited
financial statements of the Company set forth therein, the assumptions on
which such pro forma financial statements have been prepared are reasonable
and are set forth in the notes thereto, and such pro forma condensed
financial statements have been prepared, and the pro forma adjustments set
forth therein have been applied, in accordance with the applicable
accounting requirements of the 1933 Act and the Rules and Regulations
(including, without limitation, Regulation S-X promulgated by the
Commission), and such pro forma adjustments have been properly applied to
the historical amounts in the compilation of such statements.
(viii) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Maryland; the
Company has power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and the
Prospectus; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Arizona, the
State of California, the State of Washington, the State of Nevada and the
State of Oregon; the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other jurisdiction in
which such qualification is required, except where the failure to be so
qualified or in good standing would not have a material adverse effect on
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and, except for its limited partnership interest in Westbar
Limited Partnership, Metro Village Limited Partnership and Chateau De Ville
Apt. Fund Ltd. and the capital stock of the Company's subsidiaries referred
to in paragraph (ix) below, the Company owns no material amounts of capital
stock or other beneficial interest in any other corporation, partnership,
joint venture or other business entity.
(ix) Each subsidiary of the Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has power and authority to own, lease
and operate its property and conduct its business as described in the
Registration Statement and the Prospectus, and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a material
adverse effect on the condition, financial or otherwise, or on the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and all of the issued and
outstanding capital stock of each such subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is and, at all
times since the date on which such subsidiary was organized, has been owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity.
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(x) The Company and its subsidiaries own or possess or have obtained
all material governmental licenses, permits, consents, orders, approvals
and other authorizations necessary to lease or own, as the case may be, and
to operate their respective properties and to carry on their respective
businesses as contemplated in the Prospectus.
(xi) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xii) The authorized, issued and outstanding shares of capital stock
of the Company are as set forth in the Prospectus under the caption
"Capitalization" (except for subsequent issuances, if any, of the Company's
common stock, par value $.01 per share (the "Common Stock"), pursuant to
employee benefit, employee and director stock option and dividend
reinvestment plans or upon conversion of convertible securities referred to
in the Prospectus). The shares of issued and outstanding Common Stock have
been duly authorized and validly issued, are fully paid and non-assessable;
and none of the outstanding shares of Common Stock was issued in violation
of any preemptive or other similar rights arising by operation of law,
under the charter or by-laws of the Company, under any agreement or
instrument to which the Company or any of its subsidiaries is a party or
otherwise.
(xiii) The Company is not in violation of its charter or by-laws;
neither the Company nor any of its subsidiaries is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or
any of its property or assets may be bound, except for such defaults which
would not, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise) or on the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and the execution, delivery and performance
of this Agreement, the Indenture and the Securities, the consummation of
the transactions contemplated herein and therein (including, without
limitation, the incurrence of the indebtedness evidenced by the
Securities), and compliance by the Company with its obligations hereunder
and thereunder, have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries
pursuant to, any Subject Agreement (as defined below) or any other
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries may be bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, nor will such action result in any violation of the provisions of
the charter or by-laws of the Company or any applicable law, administrative
regulation or administrative or court decree; and no consent, approval,
authorization or order of any court or governmental authority or agency is
required for the consummation by the Company of the transactions
contemplated by this Agreement, the Indenture or the Securities, except
such as may
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be required under state securities or Blue Sky laws of any jurisdiction or
real estate syndication laws in connection with the purchase and
distribution of the Securities by the Underwriters. "Subject Agreements"
means (i) the Loan Agreement dated as of January 31, 1994 between The
Prudential Insurance Company of America and the Company (as successor by
merger to Real Estate Investment Trust of California), as amended by the
First Amendment to Loan Agreement dated as of July 7, 1995, the Second
Amendment to Loan Agreement dated as of April 30, 1996, the Third Amendment
to Loan Agreement dated as of November 20, 1996 and the Fourth Amendment to
Loan Agreement dated as of February 25, 1997, (ii) the Loan Agreement dated
as of July 7, 1995 between The Prudential Insurance Company of America and
the Company (as successor by merger to Real Estate Investment Trust of
California), as amended by the First Agreement to Loan Agreement dated as
of April 30, 1996, the Second Agreement to Loan Agreement dated as of
November 20, 1996 and the Third Amendment to Loan Agreement dated as of
February 25, 1997, (iii) the Unsecured Line of Credit Loan Agreement dated
as of April 4, 1996 between Bank of America Trust and Savings Association
and the Company, as amended by the Modification Agreement dated as of April
4, 1996 and the Second Modification Agreement dated as of October 22, 1996
and (iv) the Unsecured Line of Credit Loan Agreement dated as of March 9,
1996 between Sanwa Bank California and the Company, as amended by the First
Amendment to Credit Agreement dated as of December 12, 1996; and
"Prudential Agreements" means the Loan Agreements, as amended, referred to
in clauses (i) and (ii) of this sentence. All amendments and supplements
to the Subject Agreements are set forth in clauses (i) through (iv) of the
preceding sentence.
(xiv) The Company was and is organized to qualify as a "real estate
investment trust" under the Internal Revenue Code of 1986, as amended (the
"Code"); the Company at all times since its organization has elected to be
taxed as a "real estate investment trust"; the Company has qualified as a
"real estate investment trust" under the Code for its taxable years ended
July 31, 1994, July 31, 1995, its short taxable year ended December 31,
1995 and its taxable year ended December 31, 1996 and will continue to
qualify as a "real estate investment trust" under the Code after
consummation of the transactions contemplated by the Prospectus; and the
Company's present and contemplated operations, assets and income will
enable the Company to meet the requirements for qualification as a "real
estate investment trust" under the Code. United States Federal income tax
returns of the Company have been closed through the fiscal year of the
Company ended July 31, 1993. As used in this paragraph (xiv), the term
"Company" includes BankAmerica Realty Investors, a California business
trust and predecessor to BRE Properties, Inc., a Delaware corporation.
(xv) Each subsidiary of the Company is a "qualified REIT subsidiary"
within the meaning of the Code.
(xvi) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries,
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which is required to be disclosed in the Registration Statement or the
Prospectus (other than as disclosed therein) or which might result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets of the Company or any of its
subsidiaries; and there are no contracts or documents of the Company or any
of its subsidiaries which are required to be filed as exhibits to the
Registration Statement or any document incorporated or deemed to be
incorporated therein by the 1933 Act, the Rules and Regulations, the 1934
Act or the rules and regulations of the Commission thereunder which have
not been so filed.
(xvii) The Company is eligible to use a Form S-3 registration statement
under the 1933 Act. The Company is also eligible to use Form S-3 pursuant
to the standards for that Form in effect immediately prior to October 21,
1992.
(xviii) Neither the Company nor any of its subsidiaries nor any of their
respective officers or directors has taken nor will any of them take,
directly or indirectly, any action resulting in a violation of Regulation M
under the 1934 Act, or designed to cause or result in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of the Securities or
facilitation of the sale or resale of the Securities.
(xix) Neither the Company nor any of its subsidiaries is required to
own or possess any trademarks, service marks, trade names or copyrights in
order to conduct the business now operated by it.
(xx) The Company has full right, power and authority to enter into
this Agreement, the Indenture and the Securities; this Agreement has been
duly authorized, executed and delivered by the Company.
(xxi) Except as otherwise disclosed in the Prospectus: (A) the Company
and its subsidiaries have good and marketable title in fee simple to all
real property and improvements described in the Prospectus as being owned
by the Company (none of which is leased by the Company or any of its
subsidiaries, as lessee); (B) all liens, charges, encumbrances, claims or
restrictions on or affecting the real property and improvements of the
Company or any of its subsidiaries which are required to be disclosed in
the Prospectus are disclosed therein; (C) neither the Company nor any of
its subsidiaries nor any lessee of any portion of the real property or
improvements of the Company or any of its subsidiaries is in default under
any of the leases pursuant to which the Company or any of its subsidiaries
leases (as lessor) its real property or improvements and the Company knows
of no event which, but for the passage of time or the giving of notice, or
both, would constitute a default under any of such leases, except such
defaults that would not, individually or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, or on earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; (D) no tenant under any of the leases
pursuant to which the Company or any of its
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subsidiaries leases any of its real property or improvements has an option
or right of first refusal to purchase the premises demised under such
lease; (E) all of the real property and improvements of the Company and its
subsidiaries comply with all applicable codes and zoning laws and
regulations, except for such failures to comply which would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and (F) the Company has no knowledge of any pending or
threatened condemnation, zoning change or other proceeding or action that
would in any manner affect the size of, use of, improvements on,
construction on, or access to any of the real property of the Company or
any of its subsidiaries, except such proceedings or actions that would not,
individually or in the aggregate, have a material adverse effect on the
condition, financial or otherwise, or earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(xxii) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (A) transactions are
executed in accordance with management's general or specific
authorizations; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C) access
to assets is permitted only in accordance with management's general or
specific authorizations; and (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences. Neither the Company nor
any of its subsidiaries nor any of their respective employees or agents has
made any payment of funds of the Company or any of its subsidiaries or
received or retained any funds in violation of any law, rule or regulation
which payment, receipt or retention of funds is of a character required to
be disclosed in the Prospectus.
(xxiii) Except as otherwise set forth in the Registration Statement, (A)
to the best knowledge and information of the Company, neither the Company
nor any of its subsidiaries has at any time, and no other party has at any
time, handled, buried, stored, retained, refined, transported, processed,
manufactured, generated, produced, spilled, allowed to seep, leak, escape
or leach, or pumped, poured, emitted, emptied, discharged, injected,
dumped, transferred or otherwise disposed of or dealt with Hazardous
Materials (hereinafter defined) on, to or from real property owned, leased
or otherwise utilized by the Company or any of its subsidiaries or in which
the Company or any of its subsidiaries has any ownership interest,
including without limitation any subsurface soils and ground water (the
"Premises"), except for such cases as (u) are not required to be disclosed
in the Registration Statement and (v) would not, individually or in the
aggregate, have a material adverse effect on the condition (financial or
otherwise) or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, (B) to the best
knowledge and information of the Company, no seepage, leak, escape, leach,
discharge, injection, release, emission, spill, pumping, pouring, emptying
or dumping of Hazardous Materials from or to the Premises has occurred,
except for such cases as
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(w) are not required to be disclosed in the Registration Statement and (x)
would not, individually or in the aggregate, have a material adverse effect
on the condition (financial or otherwise) or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, (C) neither the Company nor any of its subsidiaries has
received notice of any claim, or has knowledge of any occurrence or
circumstance which with notice or passage of time or both would give rise
to a claim, under or pursuant to any Environmental Statute, except for such
claims as (y) are not required to be disclosed in the Registration
Statement and (z) would not, individually or in the aggregate, have a
material adverse effect on the condition (financial or otherwise) or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, and (D) to the best of Company's
knowledge and information, no part of the Premises is included or proposed
for inclusion on the National Priorities List issued pursuant to CERCLA
(hereinafter defined) by the United States Environmental Protection Agency
(the "EPA") or on the inventory of other potential "problem" sites issued
by the EPA and has not otherwise been identified by the EPA as a potential
CERCLA site or included or proposed for inclusion on any list or inventory
issued pursuant to any other Environmental Statute or issued by any other
Governmental Authority (hereinafter defined). As used herein "Hazardous
Material" shall include without limitation, any flammable explosives,
radioactive materials, hazardous materials, hazardous wastes, hazardous or
toxic substances, or related materials, asbestos or any material containing
asbestos, or any other substance or material as defined by any Federal,
state or local environmental law, ordinance, rule, or regulation including,
without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended (42 U.S.C. Sections 9601, ET SEQ.)
("CERCLA"), the Hazardous Materials Transportation Act, as amended (49
U.S.C. Sections 1801, ET SEQ.), the Resource Conservation and Recovery Act,
as amended (42 U.S.C. Sections 6901 ET SEQ.) and in the regulations adopted
and publications promulgated pursuant to each of the foregoing
(individually, an "Environmental Statute") or by any Federal, state or
local governmental authority having or claiming jurisdiction over the
Premises (a "Governmental Authority").
(xxiv) The issuance, sale and public offering of the Securities to be
issued and sold by the Company have been approved by all of the "Continuing
Directors" and do not constitute a "Business Combination" (as such terms
are defined in Article IX of the Company's charter).
(xxv) Attached hereto as Schedule C is a true and complete list of all
subsidiaries of the Company and all partnerships in which the Company holds
an interest. The Company has no other subsidiaries other than those listed
in Schedule C, and it holds no other interests in any partnerships other
than those listed in Schedule C.
(xxvi) To the extent applicable, the Company has complied and will
comply with the provisions of that certain Florida act relating to
disclosure of doing business with Cuba, codified as Section 517.075 of the
Florida statutes, and the rules and regulations thereunder (collectively,
the "Cuba Act") or is exempt therefrom.
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(xxvii) The Indenture has been duly authorized by the Company and, at
the Closing Date, will have been duly executed and delivered by the Company
and will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditor's rights generally or by general equitable principles.
(xxviii) The Securities have been duly authorized and, at the Closing
Date, will have been duly executed by the Company and, when authenticated
in the manner provided for in the Indenture and delivered against payment
of the purchase price therefor specified in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or
by general equitable principles, and will be entitled to the benefits of
the Indenture.
(xxix) The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus and will be in substantially the respective forms filed or
incorporated by reference, as the case may be, as exhibits to the
Registration Statement.
(xxx) The Securities rank and will rank on a parity with all unsecured
indebtedness of the Company (other than subordinated indebtedness of the
Company) that is outstanding on the date hereof or that may be incurred
hereafter, and senior to all subordinated indebtedness of the Company that
is outstanding on the date hereof or that may be incurred hereafter.
(xxxi) The Company has notified the Lender (as defined in the
Prudential Agreements) of the terms and conditions of the Securities and
the offering made hereby and has certified to the Lender in writing that
the incurrence of the debt to be evidenced by the Securities does not
violate any Restrictions (as defined in the Prudential Agreements), and has
otherwise complied with all conditions and obligations under the Prudential
Agreements with respect to the issuance of the Securities and the
incurrence of the indebtedness evidenced thereby.
(b) Any certificate signed by any officer of the Company and delivered to
the Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
3. PURCHASE BY AND SALE AND DELIVERY TO, THE UNDERWRITERS; CLOSING DATE.
On the basis of the representations, warranties, covenants and agreements herein
contained, and subject to the terms and conditions herein set forth, the Company
hereby agrees to sell to the Underwriters and the Underwriters agree, severally
and not jointly, to purchase from the Company at the price set forth in
Schedule B hereto, the aggregate principal amount of Securities set forth
opposite their respective names in Schedule A, subject to adjustment in
accordance with Section 10 hereof.
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The Company will deliver the Securities to the Representatives, for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given not later
than one full business day prior to the Closing Date or, if no such direction is
received, in the name of Cede & Co.), against payment of the purchase price
therefor by wire transfer of immediately available funds, at the offices of
Brown & Wood LLP, 555 California Street, San Francisco, California 94104. The
time and date of delivery and closing shall be at 10:00 A.M., New York time, on
the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any
given day), business day after the date hereof; PROVIDED, however, that such
date and time may be accelerated or extended by agreement between the Company
and the Representatives or postponed pursuant to the provisions of Section 10
hereof. The time and date of such payment and delivery are herein referred to
as the "Closing Date". The Company shall make the certificates for the
Securities available to the Representatives for examination on behalf of the
Underwriters not later than 10:00 A.M., New York time, on the business day
preceding the Closing Date in New York, New York.
It is understood that Morgan Stanley & Co. Incorporated, BancAmerica
Securities, Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated or Salomon
Brothers Inc, individually may (but shall not be obligated to) make payment to
the Company on behalf of any Underwriter or Underwriters for the Securities to
be purchased by such Underwriter or Underwriters. Any such payment by Morgan
Stanley & Co. Incorporated, BancAmerica Securities, Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated or Salomon Brothers Inc shall not relieve such
Underwriter or Underwriters from any of its or their other obligations
hereunder.
After the Registration Statement becomes effective, the several
Underwriters propose to make an initial public offering of the Securities at the
initial public offering price set forth in Schedule B hereto.
4. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will advise the Representatives promptly of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible the lifting thereof, if issued. The
Company will advise the Representatives promptly of any request by the
Commission for any amendment of or supplement to the Registration Statement or
the Prospectus or for additional information, and will not at any time file any
amendment to the Registration Statement or supplement to the Prospectus which
shall not previously have been submitted to the Representatives a reasonable
time prior to the proposed filing or use thereof or to which the Representatives
shall reasonably object in writing or which is not in compliance with the 1933
Act and the Rules and Regulations. The Company will advise the Representatives
promptly when the Prospectus has been filed pursuant to Rule 424(b) of the Rules
and Regulations.
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(b) The Company will prepare and file with the Commission, promptly upon
the request of the Representatives, any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may be necessary to enable the several Underwriters to continue
the distribution of the Securities and, in the case of any such amendments to
the Registration Statement, will use its best efforts to cause the same to
become effective as promptly as possible. The Company will promptly file all
reports and any definitive proxy or information statements required to be filed
with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Securities.
(c) If at any time when a prospectus relating to the Securities is
required to be delivered under the 1933 Act any event occurs as a result of
which the Prospectus would include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the 1933 Act or
the Rules and Regulations, the Company will promptly notify the Representatives
thereof and will prepare an amended or supplemented Prospectus (in form and
substance reasonably satisfactory to counsel to the Underwriters) or, with the
consent of counsel to the Underwriters, make an appropriate filing pursuant to
Section 13 or 14 of the 1934 Act which will correct such statement or omission;
and, in case any Underwriter is required to deliver a prospectus relating to the
Securities nine months or more after the date of this Agreement, the Company
upon the request of the Representatives and at the expense of such Underwriters
will prepare promptly such prospectus or prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will deliver to the Representatives, at or before the
Closing Date, signed copies of the Registration Statement and all amendments
thereto (including all financial statements and exhibits thereto and all
documents incorporated or deemed to be incorporated by reference therein) and
will deliver to the Representatives such number of copies of the Registration
Statement, including such financial statements and all documents incorporated or
deemed to be incorporated by reference therein but without exhibits, and of all
amendments thereto, as the Representatives may reasonably request. The Company
will deliver or mail to or upon the order of the Representatives on the date of
the initial public offering, and thereafter from time to time during the period
when delivery of a prospectus relating to the Securities is required under the
1933 Act, as many copies of the Prospectus, in final form or as thereafter
amended or supplemented, as the Representatives may reasonably request;
PROVIDED, HOWEVER, that the expense of the preparation and delivery of any
prospectus required for use nine months or more after the date of this
Agreement, shall be borne by the Underwriters required to deliver such
prospectus. The copies of the Registration Statement and each amendment thereto
and the copies of any preliminary prospectus and any preliminary prospectus
supplement and the Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
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(e) The Company will make generally available to its security holders as
soon as practicable, but in any event not later than 60 days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) which will be in reasonable detail
(but which need not be audited) and which will comply with Section 11(a) of the
1933 Act, covering a period of at least twelve months beginning not later than
the first day of the Company's fiscal quarter next following the "effective
date" (as defined in said Rule 158) of the Registration Statement.
(f) The Company will cooperate with the Representatives to enable the
Securities to be qualified for sale under the securities laws and real estate
syndication laws of such states and other jurisdictions as the Representatives
may reasonably designate and at the request of the Representatives will make
such applications and furnish such information as may reasonably be required of
it as the issuer of the Securities for that purpose; PROVIDED, HOWEVER, that the
Company shall not be required to qualify to do business or to file a general
consent to service of process in any such jurisdiction. The Company will, from
time to time, prepare and file such statements and reports as are or may be
required of it as the issuer of the Securities to continue such qualifications
in effect for so long a period as the Representatives may reasonably request for
the distribution of the Securities.
(g) The Company will furnish to its shareholders annual reports containing
financial statements certified by independent public accountants and with
quarterly summary financial information, in reasonable detail which may be
unaudited. During the period of five years from the date hereof, the Company
will deliver to the Representatives and, upon request, to each of the other
Underwriters, copies of each annual report of the Company and each other report
furnished by the Company to its shareholders; and will deliver to the
Representatives, as soon as they are available, copies of any other reports
(financial or other) which the Company shall publish or otherwise make available
to any of its security holders as such and, as soon as they are available,
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange.
(h) The Company will use the net proceeds received by it from the sale of
the Securities sold by it in the manner specified in the Prospectus Supplement
under "Use of Proceeds".
(i) Immediately following the execution of this Agreement, the Company
will prepare a prospectus supplement, dated the date hereof (the "Prospectus
Supplement"), containing the public offering price of the Securities, the
underwriting discounts and commissions, the plan of distribution of the
Securities and such other information as may be required by the 1933 Act or the
Rules and Regulations or as the Representatives and the Company deem
appropriate, and will file or transmit for filing with the Commission in
accordance with Rule 424(b) of the Rules and Regulations copies of the
Prospectus (including such Prospectus Supplement).
(j) During the period beginning on the date hereof and continuing through
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or any of its
subsidiaries which are substantially similar to the
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Securities (other than the Securities) or any securities convertible into or
exchangeable or exercisable for any debt securities of the Company or any of its
subsidiaries which are substantially similar to the Securities or any rights,
warrants or options to purchase any debt securities of the Company or any of its
subsidiaries which are substantially similar to the Securities, without your
prior written consent.
(k) The Company will use its best efforts to continue to meet the
requirements to qualify as a "real estate investment trust" under the Code.
(l) In accordance with the provisions of the Cuba Act, if applicable, and
without limitation to the provisions of Section 6 hereof, the Company will
indemnify each Underwriter against any and all losses, claims, damages,
liabilities and expenses (including attorneys' fees) arising out of or based
upon any violation by the Company of the Cuba Act.
5. PAYMENT OF EXPENSES. The Company will pay (directly or by
reimbursement) all expenses incident to the performance of its obligations under
this Agreement, including but not limited to all expenses and taxes incident to
delivery of the Securities to the Representatives, all expenses incident to the
registration of the Securities under the 1933 Act and the printing of copies of
the Registration Statement, any preliminary prospectus, any preliminary
prospectus supplement, the Prospectus, any amendments or supplements thereto,
all expenses incident to the preparation, word processing, printing and delivery
of all "Blue Sky" memoranda, this Agreement, the Securities and the Indenture
and furnishing the same to the Underwriters and dealers except as otherwise
provided in Sections 4(c) and 4(d), the fees and disbursements of the Company's
counsel and accountants, all filing and printing fees and expenses (including
reasonable legal fees and disbursements of counsel for the Underwriters)
incurred in connection with qualification or exemption of the Securities for
sale under securities laws and real estate syndication laws of such
jurisdictions as the Representatives may designate, all fees and expenses paid
or incurred in connection with any filings made with the National Association of
Securities Dealers, Inc., the fees and expenses of the Trustee, including, if
required, the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities, any fees payable in connection with the
rating of the Securities, the fees and expenses of any depositary in connection
with holding the Securities in book-entry form, the costs of preparing
certificates evidencing the Securities, and all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus, any preliminary prospectus supplement or the
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be
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stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; PROVIDED, HOWEVER,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (excluding documents incorporated by reference therein) was not sent
or given by or on behalf of such Underwriter to such person, if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Securities to such person, and if the Prospectus (excluding documents
incorporated by reference therein) would have cured the defect giving rise to
such losses, claims, damages or liabilities.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, each of the Company's directors, each of the
Company's officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the
1933 Act or Section 20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereof, any preliminary prospectus, any preliminary prospectus
supplement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but only
with reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, any preliminary prospectus
supplement, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to paragraph (a) or (b) of this Section 6, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses
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of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act and
(ii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for the Company, its directors, its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section. In the case of any such separate firm for
the Underwriters and such control persons of any Underwriters, such firm shall
be designated in writing by Morgan Stanley & Co. Incorporated. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
in connection with the offering of the Securities shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the
Securities (before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by
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the Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price (as defined in Schedule
B hereto) (excluding accrued interest) of the Securities. The relative fault of
the Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective aggregate principal amount of
Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by PRO RATA
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) of this Section 6. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
6, and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
the Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Securities.
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date of this Agreement and the
Closing Date, of the representations and warranties made herein by the Company
and of the statements of the Company's officers or directors in any certificates
furnished pursuant to the provisions hereof, to compliance at and as of the
Closing Date by the Company with the covenants and agreements herein contained
and other provisions hereof to be satisfied at or prior to the Closing Date and
to the following additional conditions:
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(a) The Registration Statement shall be effective and, at the Closing
Date (i) no stop order suspending the effectiveness thereof shall have been
issued and no proceedings for that purpose shall have been initiated or, to
the knowledge of the Company or the Representatives, threatened by the
Commission, and any request for additional information on the part of the
Commission (to be included in the Registration Statement or the Prospectus
or otherwise) shall have been complied with to the reasonable satisfaction
of the Representatives, and (ii) there shall not have come to the attention
of the Representatives any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of
the Securities, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If the Company has elected to rely upon Rule 430A of
the Rules and Regulations, the price of the Securities and any price
related information previously omitted from the Registration Statement
pursuant to Rule 430A shall have been transmitted to the Commission for
filing pursuant to Rule 424(b) of the Rules and Regulations within the
prescribed time period, and before the Closing Date the Company shall have
provided evidence satisfactory to the Representatives of such timely
filing, or a post-effective amendment providing such information shall have
been promptly filed and declared effective in accordance with the
requirements of Rule 430A of the Rules and Regulations.
(b) At the date of this Agreement, the Representatives shall have
received from Ernst & Young LLP a letter, dated the date of this Agreement,
in form and substance previously approved by the Representatives, together
with signed or reproduced copies of such letter for each of the
Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information contained in the
Registration Statement and the Prospectus (including, without limitation,
as to any pro forma financial statements and as to all historical financial
statements of the Company, PPA, RHR and FLA).
(c) The Representatives shall have received from Ernst & Young LLP a
letter dated the Closing Date to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 7(b) above,
except that the specified date referred to therein shall be a date not more
than three business days prior to the Closing Date.
(d) The Representatives shall have received from Farella Braun &
Martel LLP, counsel for the Company, a favorable opinion dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) To the best of such counsel's knowledge and information, the
Company and its subsidiaries are operating in compliance with all
material franchises, grants, authorizations, licenses, permits,
easements, consents, certificates and orders required for the conduct
of their respective businesses, all of which are valid and in full
force and effect.
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(ii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in the State of Arizona, the
State of California, the State of Washington, the State of Oregon and
the State of Nevada; the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, except where the
failure to be so qualified or in good standing would not have a
material adverse effect on the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise.
(iii) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the Prospectus
and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such
qualification is required, except where the failure to be so qualified
or in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock of
each subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and, to the best knowledge of such counsel, is
and, at all times since the date on which such subsidiary was
organized, has been owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance or claim;
(iv) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, of Common
Stock pursuant to employee benefit, employee and director stock option
and dividend reinvestment plans referred to in the Prospectus);
(v) The execution, delivery and performance of this Agreement,
the Indenture and the Securities, the consummation of the transactions
herein and therein contemplated (including, without limitation, the
incurrence of the indebtedness evidenced by the Securities), and
compliance by the Company with its obligations hereunder and
thereunder, will not result in a breach or violation of any of the
terms or provisions of or constitute a default under (A) any Subject
Agreement, (B) any other material contract, indenture, mortgage, deed
of trust, note, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or
to which any of their respective properties or assets are subject, (C)
the Company's charter or by-laws, or (D) to the best of such counsel's
knowledge and information, any law, order, rule or regulation of any
court or governmental agency or body having
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jurisdiction over the Company or any of its subsidiaries or any of
their respective properties (provided that such counsel need express
no opinion as to state securities or real estate syndication laws).
(vi) The Registration Statement is effective under the 1933 Act
and, to the best of such counsel's knowledge and information, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(vii) At the time the Registration Statement became effective and
at the date of this Agreement, the Registration Statement (other than
the financial statements and supporting schedules and other financial
and statistical data included or incorporated by reference therein or
omitted therefrom and any trustee's Statement of Eligibility on Form
T-1 (a "Form T-1"), as to which no opinion need be rendered) complied
as to form in all material respects with the requirements of the 1933
Act and the Rules and Regulations; and nothing has come to such
counsel's attention that would lead them to believe that the
Registration Statement, at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the date of the
Prospectus Supplement or at the date of such opinion, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (except that no statement need be made as to financial
statements or supporting schedules or other financial or statistical
data included or incorporated by reference in or omitted from the
Registration Statement or the Prospectus or any Form T-1).
(viii) The documents incorporated or deemed to be incorporated by
reference in the Prospectus (other than the financial statements and
supporting schedules and other financial and statistical data included
or incorporated by reference therein or omitted therefrom, as to which
no opinion need be rendered), as of the dates they were filed with the
Commission (or, if such incorporated documents were amended, when such
amendment was filed or became effective), complied as to form in all
material respects with the requirements of the 1934 Act and the
published rules and regulations thereunder.
(ix) No filing with, or consent, approval, authorization,
license, registration, qualification, decree or order of, any court or
governmental authority or agency is required in connection with the
execution, delivery or performance of this Agreement, the Indenture or
the Securities by the Company, or in connection with the issuance or
sale of the Securities to be issued and sold by the Company to the
Underwriters, except such as has been obtained under the 1933 Act, the
Rules and Regulations, the 1939 Act or the
21
<PAGE>
1939 Act Regulations or such as may be required under state securities
laws or real estate syndication laws (provided that such counsel need
express no opinion as to filings with, or consents, approvals,
authorizations, licenses, registrations, qualifications, decrees or
orders of, any foreign court or governmental authority or agency).
(x) The Company is not required to be registered under the
Investment Company Act of 1940, as amended.
(xi) The Company is eligible to use a Form S-3 registration
statement under the 1933 Act and is also eligible to use a Form S-3
registration statement pursuant to the standards for that Form as in
effect immediately prior to October 21, 1992.
(xii) The Company has all legal right, power and authority
necessary to qualify as a "real estate investment trust" under the
Code; the Company was reorganized in Delaware in 1987; the Company has
elected to be treated as a "real estate investment trust" since its
organization; the Company has qualified as a "real estate investment
trust" for its fiscal years ended July 31, 1994 and July 31, 1995, its
short taxable year ended December 31, 1995 and its taxable year ended
December 31, 1996 (the years, to the best knowledge of counsel, that
are still subject to audit by the Internal Revenue Service); the
Company is organized and operates in a manner that will enable it to
qualify to be taxed as a "real estate investment trust" under the Code
for its taxable year ending December 31, 1997 and thereafter provided
the Company continues to meet (through actual annual operating
results, distribution levels and diversity of stock ownership) the
various qualification tests imposed by the Code necessary for the
Company to qualify as a "real estate investment trust". As used in
this paragraph (xii) and paragraph (xiii) below, the term "Company"
includes BankAmerica Realty Investors, a California business trust and
predecessor to BRE Properties, a Delaware corporation.
(xiii) Each subsidiary of the Company is a "qualified REIT
subsidiary" within the meaning of the Code.
(xiv) The information in the Prospectus under the captions
"Description of Notes", "Description of Debt Securities" and "Federal
Income Tax Considerations" and the information in the Company's 1996
Annual Report on Form 10-K under the caption "Legal Proceedings", to
the extent that it constitutes matters of law or legal conclusions, or
summaries of provisions of the Company's charter or by-laws, the
Indenture, the Securities or of other documents, agreements or
instruments, has been reviewed by such counsel and is correct in all
material respects; and the opinion of such counsel under the caption
"Federal Income Tax Considerations" is confirmed.
22
<PAGE>
(xv) There are no legal or governmental proceedings pending or,
to the best of such counsel's knowledge and information, threatened
against the Company or any of its subsidiaries which are required to
be disclosed in the Registration Statement, other than those disclosed
therein, and all pending legal or governmental proceedings to which
the Company or any of its subsidiaries is a party or of which any of
the property of the Company or any of its subsidiaries is the subject
which are not described in the Registration Statement, including
ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(xvi) To the best of such counsel's knowledge and information,
there are no contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or in the documents incorporated by
reference therein or to be filed as exhibits thereto other than those
described or referred to therein or filed or incorporated by reference
as exhibits thereto, the descriptions thereof or references thereto
are correct in all material respects, and, to the best of such
counsel's knowledge and information, no default exists in the due
performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument so described, referred
to or filed.
(xvii) The issuance, sale and public offering of the Securities to
be issued and sold by the Company have been approved by all of the
"Continuing Directors" and do not constitute a "Business Combination"
(as such terms are defined in Article VIII of the Company's charter).
(xviii) The Indenture has been qualified under the 1939 Act.
(xix) The Company has notified the Lender of the terms and
conditions of the Securities and the offering made hereby and
certified to the Lender in writing that the incurrence of the debt to
be evidenced by the Securities does not violate any Restrictions, and
has otherwise complied with all conditions and obligations under the
Prudential Agreements with respect to the issuance of the Securities
and the incurrence of the indebtedness evidenced thereby.
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In giving their opinion, Farella
Braun & Martel LLP (A) shall state that insofar as such opinion concerns
the Indenture, the Securities or any other instrument, agreement or other
document which by its terms is not governed by the laws of the State of
California or the General Corporation Law of the State of Delaware, such
counsel has assumed that the Indenture, the Securities and such other
instruments, agreements and other documents are governed by the laws of the
State of California and (B) may rely (i) as to the qualification of the
Company and its subsidiaries to do business in any state or jurisdiction,
upon certificates of appropriate government officials and (ii) as to
matters of fact, upon certificates and
23
<PAGE>
written statements of officers of and accountants for the Company and (C)
shall state that such counsel has relied, as to matters arising under the
laws of the State of Maryland and the State of New York, upon the opinion
of Piper & Marbury L.L.P. delivered pursuant to Section 7(e) hereof.
(e) The Representatives have received from Piper & Marbury L.L.P.,
Maryland and New York counsel for the Company, a favorable opinion dated
the Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Maryland.
(ii) The Company has the corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus.
(iii) The authorized, issued and outstanding shares of capital
stock of the Company are as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, of Common
Stock pursuant to employee benefit, employee and director stock option
and dividend reinvestment plans referred to in the Prospectus); and
the shares of issued and outstanding Common Stock have been duly
authorized and validly issued, are fully-paid and non-assessable, and
are not subject to any preemptive or other similar rights arising by
operation of law, under the charter or by-laws of the Company, under
any resolution adopted by the board of directors of the Company or any
committee thereof or, to the best of such counsel's knowledge,
otherwise.
(iv) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or
by general equitable principles.
(v) The Securities have been duly authorized and executed by the
Company and, when duly authenticated by the Trustee in the manner
provided in the Indenture (assuming the due authorization, execution
and delivery of the Indenture by the Trustee) and delivered against
payment of the purchase price therefor pursuant to this Agreement,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws
24
<PAGE>
relating to or affecting creditor's rights generally or by general
equitable principles, and will be entitled to the benefits of the
Indenture.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company; and the execution, delivery and performance
of this Agreement, the Indenture and the Securities, the consummation
of the transactions herein and therein contemplated, and compliance by
the Company with its obligations hereunder and thereunder, will not
result in a breach or violation of any of the terms or provisions of
or constitute a default under the Company's charter or by-laws or, to
the best of such counsel's knowledge, any law, order, rule or
regulation of any Maryland court or Maryland governmental agency or
body having jurisdiction over the Company or any of its subsidiaries
or any of their respective properties (provided that such counsel need
express no opinion as to state securities or real estate syndication
laws).
(vii) No filing with, or consent, approval, authorization or order
of, any Maryland court or Maryland governmental authority or agency is
required in connection with the execution, delivery or performance of
this Agreement, the Indenture or the Securities by the Company, or in
connection with the issuance or sale of the Securities to the
Underwriters, except such as may be required under Maryland securities
laws or real estate syndication laws.
(viii) The information in the Prospectus under the captions
"Description of Notes", "Description of Debt Securities" and "Risk
Factors--Provisions Which Could Limit a Change in Control or Deter a
Takeover", and the information in the Company's 1996 Annual Report on
Form 10-K under the caption "Risk Factors--Provisions Which Could
Limit a Change in Control or Deter a Takeover", to the extent that it
constitutes matters of Maryland or New York law or legal conclusions
under Maryland or New York law, or summaries of provisions of the
Company's charter or by-laws, the Indenture, the Securities or of any
other documents specifically referred to therein (excluding two loan
agreements specifically referred to under the caption "Description of
Notes" in the Prospectus) is correct in all material respects.
(ix) The issuance, sale and public offering of the Securities
have been approved by the "Continuing Directors" and do not constitute
a "Business Combination" (as such terms are defined in Article VIII of
the Company's charter).
Such opinion shall be rendered to the Underwriters at the request of
the Company and shall so state therein. In giving their opinion, Piper &
Marbury L.L.P. (i) may rely as to matters of fact, to the extent not
independently verified by such counsel, upon certificates and written
statements of officers and accountants for the Company, (ii) shall state
that such opinion is limited to matters arising under the laws of the State
of Maryland, the State of New York and the General Corporation Law of the
State of Delaware and that, insofar as such opinion concerns any
instrument,
25
<PAGE>
agreement or other document which by its terms is not governed by the laws
of the State of Maryland, the State of New York or the General Corporation
Law of the State of Delaware, such counsel has assumed that such
instruments, agreements and other documents are governed by the laws of the
State of Maryland and (iii) shall expressly state that Farella Braun &
Martel LLP and Brown & Wood LLP, in rendering their opinions pursuant to
Sections 7(d) and 7(f) of this Agreement, may rely on such opinion as to
all matters arising under the laws of the State of Maryland and the State
of New York as if such opinion were addressed to them.
(f) The Representatives shall have received from Brown & Wood LLP,
counsel for the Underwriters, their favorable opinion or opinions dated the
Closing Date with respect to the organization of the Company, the validity
of the Securities to be sold by the Company, this Agreement, the Indenture,
the Registration Statement, the Prospectus and such other related matters
as the Representatives may require, and the Company shall have furnished to
such counsel such documents as they may request for the purpose of enabling
them to pass upon such matters.
(g) At the date of this Agreement and at the Closing Date, the
Securities shall be rated at least Baa2 by Moody's Investor's Service Inc.,
BBB by Standard & Poor's Corporation, and the Company shall have delivered
to the Representatives a letter, dated the Closing Date, from each such
rating agency, or other evidence satisfactory to the Representatives,
confirming that the Securities have such ratings.
(h) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date (1) there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded the
Securities on any of the Company's other securities by any "nationally
recognized statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the 1933 Act; and (2) there shall not have
occurred any change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in your judgment,
is material and adverse and that makes it, in your judgment, impracticable
to market the Securities on the terms and in the manner contemplated in the
Prospectus. At the Closing Date (i) the Registration Statement and the
Prospectus shall contain all statements which are required to be stated
therein in accordance with the 1933 Act and the Rules and Regulations and
in all material respects shall conform to the requirements of the 1933 Act
and the Rules and Regulations, and neither the Registration Statement nor
the Prospectus shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading and no action, suit or
proceeding at law or in equity shall be pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which
would be required to be set forth in the Registration Statement or the
Prospectus other than as set forth
26
<PAGE>
therein, (ii) no proceeding shall be pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries before
or by any Federal, state or other court, commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
would materially and adversely affect the business, property, financial
condition or income of the Company and its subsidiaries considered as one
enterprise other than as set forth in the Registration Statement and the
Prospectus, (iii) neither the Company nor any of its subsidiaries shall be
in default in the performance or observance of any contract to which it is
a party, except such defaults that would not have a material adverse effect
on the condition, financial or otherwise, of the Company and its
subsidiaries considered as one enterprise or the earnings, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, (iv) no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceeding therefor shall have been instituted or threatened by the
Commission and (v) the Representatives shall have received, at the Closing
Date, a certificate of the President and the Chief Financial Officer of the
Company, dated as of the Closing Date, evidencing compliance with the
appropriate provisions of this subsection (h).
(i) The Representatives shall have received a certificate, dated
the Closing Date, of the President and the Chief Financial Officer of the
Company to the effect that the representations and warranties of the
Company contained in Section 2(a) are true and correct with the same force
and effect as though expressly made at and as of the Closing Date.
(j) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably
requested as to the accuracy, at and as of the Closing Date, of the
representations and warranties made herein by the Company, as to compliance
at and as of the Closing Date by the Company with its covenants and
agreements herein contained and other provisions hereof to be satisfied at
or prior to the Closing Date and as to other conditions to the obligations
of the Underwriters hereunder.
If any of the conditions hereinabove provided for in this Section shall not
have been satisfied when and as required by this Agreement, this Agreement may
be terminated by the Representatives by notifying the Company of such
termination in writing or by telegram or telecopy at or prior to the Closing
Date.
8. TERMINATION. This Agreement may be terminated by the Representatives
by notice to the Company at or prior to the Closing Date if (a) after the
execution and delivery of this Agreement and prior to the Closing Date
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board
of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activates in New York or California shall have
been declared by either Federal, New
27
<PAGE>
York State or California State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in your judgment,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
9. REIMBURSEMENT OF UNDERWRITERS. Notwithstanding any other provisions
hereof, if this Agreement shall be terminated by the Underwriters under Section
7, Section 8 or Section 11, the Company will bear and pay the expenses specified
in Section 5 hereof and, in addition to its obligations pursuant to Section 6
hereof, the Company will reimburse the reasonable out-of-pocket expenses of the
several Underwriters (including reasonable fees and disbursements of counsel for
the Underwriters) incurred in connection with this Agreement and the proposed
purchase and offers of the Securities, and promptly upon demand the Company will
pay such amounts to you, as Representatives of the Underwriters. In addition,
the provisions of Section 6 hereof will survive any termination of this
Agreement.
10. DEFAULT BY UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase any of the Securities which it
or they are obligated to purchase under this Agreement on the Closing Date, and
the aggregate principal amount of Securities which such defaulting Underwriter
or Underwriters agreed but failed to purchase does not exceed 10% of the
aggregate principal amount of all of the Securities which the Underwriters are
obligated to purchase at the Closing Date, the other Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Securities which such defaulting Underwriter or Underwriters agreed
but failed to purchase. If any Underwriter or Underwriters shall so default and
the aggregate principal amount of Securities with respect to which such default
or defaults occur is more than 10% of the aggregate principal amount of all of
the Securities which the Underwriters are obligated to purchase at the Closing
Date and arrangements satisfactory to the Representatives and the Company for
the purchase of such Securities by other persons are not made within 48 hours
after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted underwriters are required
hereby or agree to take up all or part of the Securities of a defaulting
Underwriter or Underwriters as provided, in this Section 10, (i) the Company
shall have the right to postpone the Closing Date for a period of not more than
five full business days, in order that the Company may effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements, and the Company agrees promptly to
file any amendments to the Registration Statement or supplements to the
Prospectus which may thereby be made necessary, and (ii) the respective
principal amounts of Securities to be purchased by the remaining Underwriters or
substituted underwriters shall be taken as the basis of their underwriting
obligation for all purposes of this Agreement. Nothing herein contained shall
relieve any defaulting Underwriter of its liability to the Company or the
Underwriters for damages occasioned by its default hereunder. Any termination
of this Agreement pursuant to this Section 10 shall be without liability on the
part of any non-
28
<PAGE>
defaulting Underwriter or the Company, except for expenses to be paid or
reimbursed pursuant to Section 5 and except for the provisions of Section 6.
11. DEFAULT BY THE COMPANY. If the Company shall fail at the Closing Date
to sell and deliver the total principal amount of Securities which it is
obligated to sell hereunder, then this Agreement shall terminate without any
liability on the part of any non-defaulting party. No action taken pursuant to
this Section shall relieve the Company from liability in respect of such
default.
12. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriters shall be mailed, delivered or telecopied and confirmed
to you, as their Representatives c/o Morgan Stanley & Co. Incorporated at 1585
Broadway, New York, New York 10036, except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent to such Underwriter at the address
furnished by the Representatives or, if sent to the Company shall be mailed,
delivered or telecopied and confirmed at BRE Properties, Inc., One Montgomery
Street, Telesis Tower, Suite 2500, San Francisco, California 94104, attention:
LeRoy E. Carlson.
13. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act, and the indemnities of the several Underwriters
shall also be for the benefit of each director of the Company, each of the
Company's officers who has signed the Registration Statement and the person or
persons, if any, who control the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act.
14. APPLICABLE LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to agreements made
and to be performed in said state. Unless otherwise expressly stated, specified
times of day refer to New York City time.
29
<PAGE>
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter and your acceptance shall constitute a binding agreement between us.
Very truly yours,
BRE PROPERTIES, INC.
By: /s/ Frank C. McDowell
------------------------------------
Name: Frank C. McDowell
Title: President and Chief
Executive Officer
Accepted and delivered, as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
BANCAMERICA SECURITIES, INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON BROTHERS INC
Acting on their own behalf and as Representatives of the several
Underwriters referred to in the foregoing Agreement.
BY: MORGAN STANLEY & CO. INCORPORATED
By: /s/ Michael Fusco
------------------------------
Name: Michael Fusco
Title: Vice President
30
<PAGE>
SCHEDULE A
Aggregate
Principal
Amount of
Securities to be
Purchased
----------------
Morgan Stanley & Co. Incorporated . . . . . . . . . . . . . 12,500,000
BancAmerica Securities, Inc. . . . . . . . . . . . . . . . 12,500,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . . . . . . . 12,500,000
Salomon Brothers Inc . . . . . . . . . . . . . . . . . . . 12,500,000
-----------
Total . . . . . . . . . . . . . . . . . . . . . . . . $50,000,000
-----------
-----------
Sch. A-1
<PAGE>
SCHEDULE B
1. The initial public offering price for the Securities shall be 99.786%
of the principal amount thereof (the "Public Offering Price"), plus accrued
interest from June 15, 1997.
2. The purchase price for the Securities to be purchased by the several
Underwriters shall be 99.086% of the principal amount thereof, plus accrued
interest from June 15, 1997.
Sch. B-1
<PAGE>
SCHEDULE C
SUBSIDIARIES OF THE COMPANY:
BRE Camino Seco, Inc., a Delaware corporation
BRE Colonia Del Rio, Inc., a Delaware corporation
BRE Fountain Plaza, Inc., a Delaware corporation
BRE Hacienda Del Rio, Inc., a Delaware corporation
BRE Oracle Village, Inc., a Delaware corporation
BRE Springhill, Inc., a Delaware corporation
PARTNERSHIPS IN WHICH THE COMPANY HOLDS INTERESTS:
Westbar Limited Partnership, an Arizona partnership
Metro Village Limited Partnership, an Arizona partnership
Chateau De Ville Apt. Fund Ltd., a California partnership
Sch. C-1
<PAGE>
EXHIBIT 4.1
BRE PROPERTIES, INC.
TO
CHASE TRUST COMPANY OF CALIFORNIA
Trustee
Indenture
Dated as of June 23, 1997
Senior Debt Securities
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION. . . . . 1
SECTION 101. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. . . . . . . . . . . . .11
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. . . . . . . . . . . .12
SECTION 104. ACTS OF HOLDERS . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY . . . . . . . . . . . .14
SECTION 106. NOTICE TO HOLDERS; WAIVER . . . . . . . . . . . . . . . . . .14
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. . . . . . . . . . .15
SECTION 108. SUCCESSORS AND ASSIGNS. . . . . . . . . . . . . . . . . . . .15
SECTION 109. SEPARABILITY CLAUSE . . . . . . . . . . . . . . . . . . . . .15
SECTION 110. BENEFITS OF INDENTURE . . . . . . . . . . . . . . . . . . . .15
SECTION 111. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 112. LEGAL HOLIDAYS. . . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE 2 - SECURITIES FORMS . . . . . . . . . . . . . . . . . . . . . . . .16
SECTION 201. FORMS OF DEBT SECURITIES. . . . . . . . . . . . . . . . . . .16
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION . . . . . . .17
SECTION 203. DEBT SECURITIES ISSUABLE IN GLOBAL FORM . . . . . . . . . . .17
ARTICLE 3 - THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . .18
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. . . . . . . . . . . . .18
SECTION 302. DENOMINATIONS . . . . . . . . . . . . . . . . . . . . . . . .22
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. . . . . . . .22
SECTION 304. TEMPORARY DEBT SECURITIES . . . . . . . . . . . . . . . . . .24
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE . . . . .27
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES . . . .30
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. . . . . . . .31
SECTION 308. PERSONS DEEMED OWNERS . . . . . . . . . . . . . . . . . . . .33
SECTION 309. CANCELLATION. . . . . . . . . . . . . . . . . . . . . . . . .34
SECTION 310. COMPUTATION OF INTEREST . . . . . . . . . . . . . . . . . . .34
ARTICLE 4 - SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . .34
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE . . . . . . . . . . .34
SECTION 402. APPLICATION OF TRUST FUNDS. . . . . . . . . . . . . . . . . .36
ARTICLE 5 - REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SECTION 501. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . .36
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. . . . . .38
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SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . .39
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. . . . . . . . . . . . . . .40
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES OR COUPONS . . . . . . . . . . . . . . . . . . . .41
SECTION 506. APPLICATION OF MONEY COLLECTED. . . . . . . . . . . . . . . .41
SECTION 507. LIMITATION ON SUITS . . . . . . . . . . . . . . . . . . . . .41
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. . . . . . .42
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. . . . . . . . . . . . . .42
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. . . . . . . . . . . . . . . .42
SECTION 511. DELAY OR OMISSION NOT WAIVER. . . . . . . . . . . . . . . . .43
SECTION 512. CONTROL BY HOLDERS OF DEBT SECURITIES . . . . . . . . . . . .43
SECTION 513. WAIVER OF PAST DEFAULTS . . . . . . . . . . . . . . . . . . .43
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS . . . . . . . . . . .43
SECTION 515. UNDERTAKING FOR COSTS . . . . . . . . . . . . . . . . . . . .44
ARTICLE 6 - THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . .44
SECTION 601. NOTICE OF DEFAULTS. . . . . . . . . . . . . . . . . . . . . .44
SECTION 602. CERTAIN RIGHTS OF TRUSTEE . . . . . . . . . . . . . . . . . .45
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT
SECURITIES. . . . . . . . . . . . . . . . . . . . . . . . . .46
SECTION 604. MAY HOLD DEBT SECURITIES. . . . . . . . . . . . . . . . . . .46
SECTION 605. MONEY HELD IN TRUST . . . . . . . . . . . . . . . . . . . . .46
SECTION 606. COMPENSATION AND REIMBURSEMENT. . . . . . . . . . . . . . . .46
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS . . . . . . . . . . . . . . . . . . . . . . . . . .47
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR . . . . . .47
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. . . . . . . . . . . .49
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. . . . . . . . . . . . . . . . . . . . . . . . . . .50
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT . . . . . . . . . . . . .50
ARTICLE 7 - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY. . . . . . . .52
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. . . . . . . . .52
SECTION 702. REPORTS BY TRUSTEE. . . . . . . . . . . . . . . . . . . . . .52
SECTION 703. REPORTS BY COMPANY. . . . . . . . . . . . . . . . . . . . . .52
SECTION 704. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS . .53
ARTICLE 8 - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE . . . . . . . .53
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES
AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS . . .53
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. . . . . . . . . .54
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. . . . . . . . .54
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ARTICLE 9 - SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . .54
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. . . . . .54
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS . . . . . . .56
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. . . . . . . . . . . . .57
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . .57
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT . . . . . . . . . . . . .58
SECTION 906. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES . . .58
ARTICLE 10 - COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . .58
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . . . . .58
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. . . . . . . . . . . . . . .58
SECTION 1003. MONEY FOR DEBT SECURITIES PAYMENTS TO BE HELD IN TRUST . . .60
SECTION 1004. AGGREGATE DEBT TEST. . . . . . . . . . . . . . . . . . . . .61
SECTION 1005. DEBT SERVICE TEST. . . . . . . . . . . . . . . . . . . . . .62
SECTION 1006. SECURED DEBT TEST. . . . . . . . . . . . . . . . . . . . . .62
SECTION 1007. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS . . . . . . . . . .63
SECTION 1008. EXISTENCE. . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 1009. MAINTENANCE OF PROPERTIES. . . . . . . . . . . . . . . . . .63
SECTION 1010. INSURANCE. . . . . . . . . . . . . . . . . . . . . . . . . .63
SECTION 1011. PAYMENT OF TAXES AND OTHER CLAIMS. . . . . . . . . . . . . .63
SECTION 1012. PROVISION OF FINANCIAL INFORMATION . . . . . . . . . . . . .63
SECTION 1013. WAIVER OF CERTAIN COVENANTS. . . . . . . . . . . . . . . . .64
SECTION 1014. STATEMENT AS TO COMPLIANCE . . . . . . . . . . . . . . . . .64
SECTION 1015. ADDITIONAL AMOUNTS . . . . . . . . . . . . . . . . . . . . .64
ARTICLE 11 - REDEMPTION OF SECURITIES. . . . . . . . . . . . . . . . . . . .65
SECTION 1101. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . .65
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. . . . . . . . . . . .66
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED . . .66
SECTION 1104. NOTICE OF REDEMPTION . . . . . . . . . . . . . . . . . . . .66
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. . . . . . . . . . . . . . . . .68
SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE . . . . . . . . .68
SECTION 1107. DEBT SECURITIES REDEEMED IN PART . . . . . . . . . . . . . .69
SECTION 1108. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. . . . . . . .69
ARTICLE 12 - SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . .70
SECTION 1201. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . .70
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT
SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . .70
SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND . . . . . . .71
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ARTICLE 13 - REPAYMENT AT THE OPTION OF HOLDERS. . . . . . . . . . . . . . .71
SECTION 1301. APPLICABILITY OF ARTICLE . . . . . . . . . . . . . . . . . .71
ARTICLE 14 - DEFEASANCE AND COVENANT DEFEASANCE. . . . . . . . . . . . . . .72
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. . . . . . . . . . . . . .72
SECTION 1402. DEFEASANCE AND DISCHARGE . . . . . . . . . . . . . . . . . .72
SECTION 1403. COVENANT DEFEASANCE. . . . . . . . . . . . . . . . . . . . .73
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. . . . . . .73
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS . . . . . . . . . .75
SECTION 1406. REINSTATEMENT. . . . . . . . . . . . . . . . . . . . . . . .76
ARTICLE 15 - MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . .76
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. . . . . . . . . .76
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS . . . . . . . . . . . . .77
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS . . . . . . . . . . . .77
SECTION 1504. QUORUM; ACTION . . . . . . . . . . . . . . . . . . . . . . .77
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS. . . . . . . . . . . . . . . . . . . . . . . . .78
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. . . . . . .79
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BRE PROPERTIES, INC.
Reconciliation and tie between Trust Indenture Act of 1939
(the "1939 Act") and Indenture, dated as of June 23, 1997
----
1939 ACT SECTION INDENTURE SECTION
- ---------------- -----------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .604, 608
Section 312(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
Section 313 . . . . . . . . . . . . . . . . . . . . . . 101 ("Outstanding")
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 601,702,703
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1012
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Section 315(a)-(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
Section 316(a) (last sentence) . . . . . . . . . . . . . 101 ("Outstanding")
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act, which
provides that the provisions of Sections 310 to and including 317 of the 1939
Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
v
<PAGE>
INDENTURE, dated as of June 23, 1997, between BRE PROPERTIES, INC., a
Maryland corporation (hereinafter called the "Company"), having its principal
office at One Montgomery Street, Telesis Tower, Suite 2500, San Francisco,
California 94104-5525, and Chase Trust Company of California, a trust company
organized and existing under the laws of the State of California, as Trustee
hereunder (hereinafter called the "Trustee"), having its Corporate Trust office
at 101 California Street, Suite 2725, San Francisco, CA 94111.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful
purposes senior debt securities (hereinafter called the "Debt Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Debt Securities, unlimited as to principal
amount, to bear interest at the rates or formulas, to mature at such times and
to have such other provisions as shall be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Debt
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Debt Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
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(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms used principally in Article Three, Article Five, Article Six
and Article Ten are defined in those Articles.
"Acquired Debt" means Debt of a Person (i) existing at the time such Person
is merged or consolidated with or into, or becomes a Subsidiary of, the Company
or (ii) assumed by the Company or any of its Subsidiaries in connection with the
acquisition of assets from such Person. Acquired Debt shall be deemed to be
incurred on the date the acquired Person is merged or consolidated with or into,
or becomes a Subsidiary of, the Company or the date of the related acquisition,
as the case may be.
"Act," when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" means any additional amounts which are required by a
Debt Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Debt Service Charge" means, for any period, the interest expense of
the Company and its Subsidiaries for such period (including, without
duplication, (i) all amortization of debt discount, (ii) all accrued interest,
(iii) all capitalized interest and (iv) the interest component of capitalized
lease obligations), determined on a consolidated basis in accordance with
generally accepted accounting principles.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
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"Bearer Debt Security" means any Debt Security established pursuant to
Section 201 which is payable to bearer.
"Board Of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary 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" when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Debt Securities,
means, unless otherwise specified with respect to any securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"Common Depository" has the meaning set forth in Section 304.
"Common Shares" means, with respect to any Person, capital stock issued by
such Person other than Preferred Shares.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by the Chairman, any Vice Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
"Consolidated Income Available For Debt Service" for any period means
Consolidated Net Income of the Company and its Subsidiaries for such period,
plus amounts which have been deducted and minus amounts which have been added
for (without duplication) (i) interest expense on Debt, (ii) provision for taxes
based on income, (iii) amortization of debt discount and deferred financing
costs, (iv) provisions for gains and losses on sales or other dispositions of
properties and other investments, (v) property depreciation and amortization,
(vi) the effect of any non-cash items resulting from a change in accounting
principles in determining Consolidated
3
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Net Income, and (vii) amortization of deferred charges, all determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Consolidated Net Income" for any period means the amount of net income (or
loss) of the Company and its Subsidiaries for such period, excluding (without
duplication) (i) extraordinary items and (ii) the portion of net income (but not
losses) of the Company and its Subsidiaries allocable to minority interests in
unconsolidated Persons to the extent that cash dividends or distributions have
not actually been received by the Company or one of its Subsidiaries, all
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community (ii) the ECU both within the European
Monetary System and for the settlement of transactions by public institutions of
or within the European Communities or (iii) any currency unit (or composite
currency) other than the ECU for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at any
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 101 California Street, Suite 2725,
San Francisco, California 94111.
"Corporation" or "corporation" includes corporations, associations,
companies and business trusts; provided, however, that for purposes of the
definition of the term "Company" in this Section 101 and for purposes of Article
Eight, the term "corporation" shall not include associations, companies or
business trusts.
"Coupon" or "coupon" means any interest coupon appertaining to a Bearer
security.
"Custodian" has the meaning specified in section 501.
"Debt" means, with respect to any Person, any indebtedness of such Person,
whether or not contingent, in respect of (i) borrowed money or evidenced by
bonds, notes, debentures or similar instruments, (ii) indebtedness secured by
any Lien on any property or asset owned by such Person, but only to the extent
of the lesser of (x) the amount of indebtedness so secured and (y) the fair
market value (determined in good faith by the board of directors of such Person
or, in the case of the Company or a Subsidiary, by the Company's Board of
Directors) of the property subject to such Lien, (iii) reimbursement
obligations, contingent or otherwise, in connection with any letters of credit
actually issued or amounts representing the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable, or (iv) any lease of property by such Person
as lessee which is required to be reflected on such Person's balance sheet as a
capitalized lease in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation of such Person to be liable for, or to pay,
as obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Debt of the types referred to above of another
Person (it being understood
4
<PAGE>
that Debt shall be deemed to be incurred by such Person whenever such Person
shall create, assume, guarantee or otherwise become liable in respect thereof).
"Debt Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Debt Security or Debt Securities
authenticated and delivered under this Indenture; provided, however, that, if at
any time there is more than one Person acting as Trustee under this Indenture,
"Debt Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Debt Securities authenticated and delivered under
this Indenture, exclusive, however, of Debt Securities of any series as to which
such Person is not Trustee.
"Debt Security Register" and "Debt Security Registrar" have the same
meanings as the terms "Security Register" and "Security Registrar,"
respectively.
"Defaulted Interest" has the meaning set forth in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company and any successor to DTC in its
capacity as depository for any Debt Securities.
"ECU" means the European Currency Unit as defined and revised from time to
time by the Council of the European communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic community, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary system established
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event Of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning set forth in Section 304.
"Executive Group" means, collectively, those individuals holding the
offices of Chairman, Vice Chairman, President, Chief Executive Officer, Chief
Operating Officer or any Vice President of the Company.
"Foreign Currency" means any currency, currency unit or composite currency,
including, without limitation, the ECU, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
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"GAAP" and "generally accepted accounting principles" mean generally
accepted accounting principles, as in effect from time to time, as used in the
United States of America applied on a consistent basis.
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Debt Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of a Registered Debt Security, the Person in
whose name a Debt Security is registered in the Security Register and, in the
case of a Bearer Debt Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms and provisions of any series of Debt Securities and any
coupons appertaining thereto established pursuant to Section 301 (as such terms
and provisions may be amended pursuant to the applicable provisions hereof).
"Indexed Debt Security" means a Debt Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest" when used with respect to an Original Issue Discount Debt
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Debt Security
which provides for the payment of Additional Amounts pursuant to Section 1015,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Debt Security, means
the Stated Maturity of an installment of interest on such Debt Security.
"Lien" means any mortgage, deed of trust, lien, charge, pledge, security
interest, security agreement or other encumbrance of any kind.
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"Maturity" when used with respect to any Debt Security, means the date on
which the principal of such Debt Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman, any
Vice Chairman, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company or who may be an employee of or other counsel for the Company
and who shall be reasonably satisfactory to the Trustee.
"Original Issue Discount Debt Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Debt Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Debt Securities, or portions thereof, for whose payment at the
Maturity thereof money in the necessary amount has been theretofore
deposited (other than pursuant to Article Fourteen hereof) with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Debt Securities and any coupons
appertaining thereto, provided that, if such Debt 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;
(iii) Debt Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen;
(iv) Debt Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company; and
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(v) Debt Securities converted into Common Shares or Preferred Shares
pursuant to or in accordance with this Indenture if the terms of such Debt
Securities provide for convertibility pursuant to Section 301;
Provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, (i) the principal amount of
an Original Issue Discount Debt Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Debt Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined pursuant to Section
301 as of the date such Debt Security is originally issued by the Company, of
the principal amount (or, in the case of an Original Issue Discount Debt
Security, the Dollar equivalent as of such date of original issuance of the
amount determined as provided in clause (i) above) of such Debt Security,
(iii) the principal amount of any Indexed Debt Security that may be counted in
making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Debt Security at original issuance, unless otherwise provided with respect to
such Debt Security pursuant to Section 301, and (iv) Debt Securities owned by
the Company or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or any Affiliate of the
Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Debt Securities or coupons
on behalf of the Company.
"Person" means any individual, corporation, business trust, partnership,
joint venture, limited liability company, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place Of Payment," when used with respect to the Debt Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Debt Securities are payable as specified
as contemplated by Sections 301 and 1002.
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"Predecessor Debt Security" of any particular Debt Security means every
previous security evidencing all or a portion of the same debt as that evidenced
by such particular Debt Security; and, for the purposes of this definition, any
Debt Security authenticated and delivered under Section 306 in exchange for or
in lieu of a mutilated, destroyed, lost or stolen Debt Security or a Debt
Security to which a mutilated, destroyed, lost or stolen coupon appertains shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Debt Security or the Debt Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Preferred Shares" means, with respect to any Person, capital stock issued
by such Person that is entitled to a preference or priority over any other
capital stock issued by such Person upon any distribution of such Person's
assets, whether by dividend or upon liquidation.
"Redemption Date," when used with respect to any Debt Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price," when used with respect to any Debt Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Debt Security" shall mean any Debt Security which is registered
in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Debt Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Debt Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Debt Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers.
"Securities Exchange Act of 1934" means the Securities Exchange Act of
1934, as amended, and any reference herein to such Act or a particular provision
or section thereof shall mean, unless otherwise expressly stated or the context
otherwise requires, such Act, provision or section, as the case may be, as
amended or replaced from time to time or as supplemented from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
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"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Rule 1-02 of Regulation S-X promulgated under the
Securities Act of 1933, as in effect on January 1, 1996) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Debt Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Debt Security or any
installment of principal thereof or interest thereon, means the date specified
in such Debt Security or a coupon representing such installment of interest or
in or pursuant to this Indenture as the fixed date on which the principal of
such Debt Security or such installment of principal or interest is due and
payable.
"Subsidiary" means (i) a corporation, partnership, joint venture, limited
liability company or other Person the majority of the shares, if any, of the
non-voting capital stock or other equivalent ownership interests of which
(except directors' qualifying shares) are at the time directly or indirectly
owned by the Company and/or any other Subsidiary or Subsidiaries, and the
majority of the shares of the voting capital stock or other equivalent ownership
interests of which (except directors' qualifying shares) are at the time
directly or indirectly owned by the Company, any other Subsidiary or
Subsidiaries, and/or one or more individuals of the Executive Group (or, in the
event of death or disability of any of such individuals, his/her respective
legal representatives(s), or such individuals' successors in office as an
officer of the Company), and (ii) any other Person the accounts of which are
consolidated with the accounts of the Company.
"Total Assets" means the sum of (without duplication) (i) Undepreciated
Real Estate Assets and (ii) all other assets (excluding accounts receivable and
intangibles) of the Company and its Subsidiaries, all determined on a
consolidated basis in accordance with generally accepted accounting principles.
"Total Unencumbered Assets" means the sum of (without duplication)
(i) those Undepreciated Real Estate Assets which are not subject to a Lien
securing Debt and (ii) all other assets (excluding accounts receivable and
intangibles) of the Company and its Subsidiaries not subject to a Lien securing
Debt, all determined on a consolidated basis in accordance with generally
accepted accounting principles.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or the TIA or a
particular provision thereof shall mean such Act or provision, as the case may
be, as amended or replaced from time to time or as supplemented from time to
time by rules or regulations adopted by the Commission under or in furtherance
of the purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder; provided, however, that if
at any time there is more than one such Person,
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"Trustee" as used with respect to the Debt Securities of any series shall mean
only the Trustee with respect to Debt Securities of that series.
"Undepreciated Real Estate Assets" means, as of any date, the cost
(original cost plus capital improvements) of real estate assets of the Company
and its Subsidiaries on such date, before depreciation and amortization, all
determined on a consolidated basis in accordance with generally accepted
accounting principles.
"United States" means, unless otherwise specified with respect to any Debt
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States of America" means the United States of America (including
the states and the District of Columbia), but excluding its territories, its
possessions and other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect to
any Debt Securities pursuant to Section 301, any citizen or resident of the
United States, any corporation, partnership or other entity created or organized
in or under the laws of the United States, any estate the income of which is
subject to United States federal income taxation regardless of its source, or
any trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States fiduciaries who have the
authority to control all substantial decisions of the trust.
"Unsecured Debt" means Debt of the Company or any of its Subsidiaries which
is not secured by a Lien on any property or assets of the Company or any of its
Subsidiaries.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been satisfied or complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been satisfied or complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of the outstanding Debt Securities of all
series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Debt
Securities of a series are issuable as Bearer Debt Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Debt Securities
of such series may, alternatively, be embodied in and evidenced by the record
of Holders of Debt Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders
of Debt Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments
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or so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Debt Security, shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Debt Securities shall be proved in the
manner provided in Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Debt Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Debt Securities may be proved by the
production of such Bearer Debt Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Debt Securities therein described; or
such facts may be proved by the certificate or affidavit of the Person holding
such Bearer Debt Securities, if such certificate or affidavit is deemed by the
Trustee to be satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Debt Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Debt
Security is produced, or (2) such Bearer Debt Security is produced to the
Trustee by some other Person, or (3) such Bearer Debt Security is surrendered in
exchange for a Registered Debt Security, or (4) such Bearer Debt Security is no
longer outstanding. The ownership of Bearer Debt Securities may also be proved
in any other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities
any request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, in or pursuant to a Board Resolution, fix
in advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in or pursuant to
such Board Resolution, which shall be a date not earlier than the date 30 days
prior to the first solicitation of Holders generally in connection therewith and
not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent,
waiver or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be
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Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Debt Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Debt Securities shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Debt Security shall bind every future Holder
of the same Debt Security and the Holder of every Debt Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Debt Security Registrar, any Paying Agent, any Authenticating Agent or the
Company in reliance thereon, whether or not notation of such action is made upon
such Debt Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to Holders of Registered Debt Securities by the Company or
the Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Debt Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Debt Securities or the sufficiency of any notice to
Holders of Bearer Debt Securities given as provided herein. Any notice mailed
to a Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to
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Holders of Registered Debt Securities as shall be made with the approval of the
Trustee shall constitute a sufficient notification to such Holders for every
purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Debt Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Debt Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Debt Securities on a Business Day, such publication to be not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. Any such notice shall be deemed to have been given on
the date of such publication or, if published more than once, on the date of the
first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Debt Securities as
provided above, then such notification to Holders of Bearer Debt Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to give
notice by publication to any particular Holder of Bearer Debt Securities as
provided above, nor any defect in any notice so published, shall affect the
sufficiency of such notice with respect to other Holders of Bearer Debt
Securities or the sufficiency of any notice to Holders of Registered securities
given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this Indenture
or in any Debt Security or coupon shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this indenture or in the
Debt Securities or coupons, express or implied, shall give to any Person, other
than the parties hereto,
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any Debt Security Registrar, any Paying Agent, any Authenticating Agent and
their successors hereunder and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Debt Securities and
coupons shall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Debt Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any Debt
Security or coupon other than a provision in the Debt Securities of any series
which specifically states that such provision shall apply in lieu hereof),
payment of interest or any Additional Amounts or principal (and premium, if any)
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, Repayment Date
or sinking fund payment date, or at the Stated Maturity or Maturity, as the case
may be, provided that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF DEBT SECURITIES. The Registered Debt Securities, if
any, of each series and the Bearer Debt Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
or pursuant to one or more indentures supplemental hereto or by or pursuant to a
Board Resolution, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Debt Securities may be
listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer Debt
Securities shall have interest coupons attached.
The definitive Debt Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officer executing such Debt Securities or coupons, as
evidenced by his or her execution of such Debt Securities or coupons.
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SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject to
Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Chase Trust Company of California, as Trustee
By:
-----------------------------------------
Authorized Signatory
SECTION 203. DEBT SECURITIES ISSUABLE IN GLOBAL FORM. If Debt Securities
of or within a series are issuable in global form, as specified as contemplated
by Section 301, then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Debt Security shall represent such of the
Outstanding Debt Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Debt
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Debt Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Debt Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Debt Securities represented
thereby shall be made by or at the direction of the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or pursuant to Section 301 or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any
Debt Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or pursuant to Section 301 or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304 has
been or is delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Debt Security in global form shall be
in writing but need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any Debt
Security represented by a Debt Security in global form if such Debt Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Debt Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Debt Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium and
interest on any Debt Security in permanent global form shall be made to the
Person or Persons specified therein.
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Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Trustee and any agent of the Company and
the Trustee shall treat as the Holder of such principal amount of Outstanding
Debt Securities represented by a global Debt Security (i) in the case of a
global Debt Security in registered form, the Holder of such global Debt Security
in registered form, or (ii) in the case of a global Debt Security in bearer
form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Debt Securities which may be authenticated and delivered
under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and set forth, or determined in the manner
provided, in an Officers' Certificate, or established in or pursuant to one or
more indentures supplemental hereto, prior to the issuance of Debt Securities of
any series, any or all of the following, as applicable (each of which (except
for the matters set forth in clauses (1) and (2) below), if so provided, may be
determined from time to time by the Company with respect to unissued Debt
Securities of the series when issued from time to time):
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of such series from all other series of
Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series that may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107 or
upon surrender of other Debt Securities of the series for conversion in
part or repayment in part at the option of the Holders);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Debt Securities of the series
shall be payable;
(4) the rate or rates at which the Debt Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Debt Security on any Interest Payment Date, or the method by which such
date shall be determined, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
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(5) the place or places, if any, other than or in addition to The
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any), interest, if any, on, and Additional Amounts, if any,
payable in respect of, Debt Securities of the series shall be payable, any
Registered Debt Securities of the series may be surrendered for
registration of transfer, exchange or (if applicable) conversion and
notices or demands to or upon the Company in respect of the Debt Securities
of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Debt Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Debt Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period or
periods within which or the date or dates on which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Debt Securities of the series shall be redeemed, repaid or purchased, in
whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Debt Securities of the
series shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Debt Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than 100% of the principal amount thereof, the portion
of the principal amount of Debt Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof pursuant
to Section 502 or, if applicable, the portion of the principal amount of
Debt Securities of the series that is convertible in accordance with the
provisions of this Indenture, or the method by which such portion shall be
determined;
(11) if other than Dollars, the Foreign Currency or Foreign
Currencies in which payment of the principal of (and premium if any) or
interest or Additional Amounts, if any, on the Debt Securities of the
series shall be payable or in which the Debt Securities of the series shall
be denominated;
(12) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on the Debt Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, or one or more
currencies, currency units, composite currencies,
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commodities, equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Debt Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies, currency unit or units or composite currency or currencies
other than that in which such Debt Securities are denominated or stated to
be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner
of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies, currency
unit or units or composite currency or currencies in which such Debt
Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in
which such Debt Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Debt Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of, or additions to the Events
of Default or covenants of the Company with respect to Debt Securities of
the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) whether Debt Securities of the series are to be issuable as
Registered Debt Securities, Bearer Debt Securities (with or without
coupons) or both, any restrictions applicable to the offer, sale or
delivery of Bearer Debt Securities and the terms upon which Bearer Debt
Securities of the series may be exchanged for Registered Debt Securities of
the series and vice versa (if permitted by applicable laws and
regulations), whether any Debt Securities of the series are to be issuable
initially in temporary global form and whether any Debt Securities of the
series are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such permanent
global Debt Security may exchange such interests for definitive Debt
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Debt Securities of the series are to be issuable as a global
Debt Security, the identity of the initial depository for such series;
(17) the date as of which any Bearer Debt Securities of the series
and any temporary global Debt Security representing Outstanding Debt
Securities of the series shall be dated if other than the date of original
issuance of the first Debt Security of the series to be issued;
(18) the Person to whom any interest on any Registered Debt Security
of the series shall be payable, if other than the Person in whose name that
Debt Security (or one or more Predecessor Debt Securities) is registered at
the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest
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on any Bearer Debt Security of the series shall be payable, if otherwise
than upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Debt Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Debt Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Debt Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Debt Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) if the Debt Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Debt Securities
to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1015 on the Debt Securities
of the series to any Holder who is not a United States Person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) the obligation, if any, of the Company to permit the conversion
of the Debt Securities of such series into the Company's Common Shares or
Preferred Shares or into other securities or property, as the case may be,
and the terms and conditions upon which such conversion shall be effected
(which may include, without limitation, the initial conversion price or
rate, the conversion period, any adjustment of the applicable conversion
price and any requirements relative to the reservation of such shares for
purposes of conversion); and
(24) any other terms of the series and any deletions from or
modifications or additions to this Indenture in respect of such Debt
Securities (whether or not consistent with the other provisions of this
Indenture).
All Debt Securities of any one series and all coupons, if any, appertaining
to Bearer Debt Securities of such series shall be substantially identical except
as to currency or currency unit of payments due thereunder, denomination, rate
of interest or method of determining the rate of interest, if, any, Maturity,
and the date from which interest, if any, shall accrue and except as may
otherwise be provided by the Company in the Board Resolution, or pursuant to the
Board Resolution and set forth in the Officers' Certificate, or in any indenture
or indentures supplemental hereto, as the case may be, pertaining to such series
of Debt Securities. The terms of the Debt Securities of any series may provide,
without limitation, that the Debt Securities shall
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be authenticated and delivered by the Trustee on original issue from time to
time upon telephonic or written order of persons designated in or pursuant to
the relevant Board Resolution, Officers' Certificate or supplemental indenture,
as the case may be (telephonic instructions to be promptly confirmed in writing
by such person) and that such persons are authorized to determine, consistent
with such Board Resolution, Officers' Certificate or supplemental indenture, as
the case may be, such terms and conditions of the Securities of such series as
are specified in such Board Resolution, Officers' Certificate or supplemental
indenture, as the case may be. All Debt Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional Debt
Securities of such series.
If the form or any of the terms of the Debt Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers' Certificate setting forth the terms of the Debt
Securities of such series.
SECTION 302. DENOMINATIONS. The Debt Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Debt Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Debt Securities of any
series, the Registered Debt Securities of such series, other than Registered
Debt Securities issued in global form (which may be of any denomination), shall
be issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Debt Securities of such series, other than Bearer Debt Securities issued
in global form (which may be of any denomination), shall be issuable in
denominations of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Debt
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman, any Vice Chairman, its President or one of its Vice
Presidents and attested by its Treasurer, one of its Assistant Treasurers, its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Debt Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Debt Securities.
Debt Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Debt
Securities or did not hold such offices at the date of such Debt Securities or
coupons.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Debt Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Debt Securities; provided, however,
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that, in connection with its original issuance, no Bearer Debt Security shall be
mailed or otherwise delivered to any location in the United States; and provided
further that, unless otherwise specified with respect to any series of Debt
Securities pursuant to Section 301, a Bearer Debt Security may be delivered in
connection with its original issuance only if the Person entitled to receive
such Bearer Debt Security shall have furnished a certificate to Euroclear or
CEDEL, as the case may be, in the form set forth in Exhibit A-1 to this
Indenture or such other certificate as may be specified with respect to any
series of Debt Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Debt Security is delivered
and the date on which any temporary Debt Security first becomes exchangeable for
such Bearer Debt Security in accordance with the terms of such temporary Debt
Security and this Indenture. If any Debt Security shall be represented by a
permanent global Bearer Debt Security, then, for purposes of this Section 303
and Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Debt Security or upon exchange of a portion of a
temporary global Debt Security shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Debt Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Debt Security unless all appurtenant coupons
for interest then matured have been detached and canceled. In authenticating
such Debt Securities, and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled to
receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Debt Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Debt Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Debt Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Company to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, except as limited
by any applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting the enforcement of creditors'
rights generally and general equitable principles; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Debt
Securities have been complied with and that, to the best of the knowledge
of the signers of such certificate, no Event of Default with respect to any
of the Debt Securities shall have occurred and be continuing.
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If such form or terms have been so established, the Trustee shall not be
required to authenticate such Debt Securities if the issue of such Debt
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Debt Securities and this Indenture
or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding anything herein to the contrary, if all the Debt Securities
of any series are not to be issued at one time, it shall not be necessary to
deliver an Officers' Certificate otherwise required pursuant to Section 301 or a
Company Order, an Opinion of Counsel or an Officers' Certificate otherwise
required pursuant to this Section 303 at the time of issuance of each Debt
Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Debt Security of such series.
Each Registered Debt Security shall be dated the date of its authentication
and each Bearer Debt Security shall be dated as of the date specified as
contemplated by Section 301.
No Debt Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Debt Security or Debt Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Debt Security shall be conclusive evidence, and the only evidence, that
such Debt Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture. Notwithstanding the foregoing, if
any Debt Security shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company shall deliver such Debt
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel) stating that such Debt Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Debt Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY DEBT SECURITIES. (a) Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Debt
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Debt Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more coupons or
without coupons, and with such appropriate insertions, omissions, substitutions
and other variations as the officers executing such Debt Securities may
determine, as conclusively evidenced by their execution of such Debt Securities.
In the case of Debt Securities of any series, such temporary Debt Securities may
be in global form.
Except in the case of temporary Debt Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Debt Securities of any series are
issued, the Company will cause
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definitive Debt Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Debt Securities of such series, the
temporary Debt Securities of such series shall be exchangeable for definitive
Debt Securities of such series upon surrender of the temporary Debt Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Debt Securities of any series (accompanied by any
non-matured coupons appertaining thereto), the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Debt Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Debt Security shall
be delivered in exchange for a temporary Registered Debt Security; and provided
further that a definitive Bearer Debt Security shall be delivered in exchange
for a temporary Bearer Debt Security only in compliance with the conditions set
forth in Section 303. Until so exchanged, the temporary Debt Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Debt Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Debt Securities issued in
global form other than through the facilities of DTC. If any such temporary
Debt Security is issued in global form, then such temporary global Debt Security
shall, unless otherwise provided therein or pursuant to Section 301, be
delivered to the London office of a depository or common depository (the "Common
Depository"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Debt Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Debt Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Debt Securities, in aggregate principal amount equal to the principal
amount of such temporary global Debt Security, executed by the Company. On or
after the Exchange Date, such temporary global Debt Security shall be
surrendered by the Common Depository to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Debt Securities without charge to the Holders, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Debt Security, an equal aggregate principal amount of definitive Debt Securities
of the same series of authorized denominations and of like tenor as the portion
of such temporary global Debt Security to be exchanged. The definitive Debt
Securities to be delivered in exchange for any such temporary global Debt
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, however, that, unless
otherwise specified in such temporary global Debt Security, upon such
presentation by the Common Depository, such temporary global Debt Security is
accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Debt Security
held for its account then to be exchanged and a certificate dated the Exchange
Date or a subsequent date and signed by CEDEL as to the portion of such
temporary global Debt Security held for its account then to be exchanged, each
in the form set
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forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further that definitive Bearer
Debt Securities shall be delivered in exchange for a portion of a temporary
global Debt Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Debt Security, the
interest of a beneficial owner of Debt Securities of a series in a temporary
global Debt Security shall be exchanged for definitive Debt Securities of the
same series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Debt Securities and each
Paying Agent. Unless otherwise specified in such temporary global Debt
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Debt Security, except that a Person receiving
definitive Debt Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Debt Securities in person at the offices of Euroclear or CEDEL. Definitive Debt
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Debt Security shall be delivered only outside the United
States.
Until exchanged in full as hereinabove provided, the temporary Debt
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Debt Securities of the same series and of
like tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Debt Security on an Interest Payment Date for Debt Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial owners
of such temporary global Debt Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL, as the case may be, a certificate
dated no earlier than 15 days prior to the Interest Payment Date occurring prior
to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or
in such other forms as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the certifications
made pursuant to this paragraph shall satisfy the certification requirements of
the preceding two paragraphs of this Section 304(b) and of the third paragraph
of Section 303 of this Indenture and the interests of the Persons who are the
beneficial owners of the temporary global Debt Security with respect to which
such certification was made will be exchanged for definitive Debt Securities of
the same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further act
or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Debt Security will be made unless and
until such interest in such
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temporary global Debt Security shall have been exchanged for an interest in a
definitive Debt Security.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Debt Securities (the registers maintained in such office or in any
such office or agency of the Company in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Registered Debt Securities and of transfers and
exchanges of Registered Debt Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office and at its
office in the Borough of Manhattan, The City of New York at the address set
forth in Section 1002 (or at such other address at which the Trustee's New York
office may subsequently be located), is hereby initially appointed "Security
Registrar" for the purpose of registering Registered Debt Securities and
transfers and exchanges of Registered Debt Securities on such Security Register
as herein provided. In the event that the Trustee shall cease to be Debt
Security Registrar, it shall have the right to examine the Security Register at
all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Debt Security of any series at any
office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Debt Securities of the same series, of any authorized denominations and of a
like aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions. Subject to the
provisions of this Section 305, at the option of the Holder, Registered Debt
Securities of any series may be exchanged for other Registered Debt Securities
of the same series, of any authorized denomination or denominations and of a
like aggregate principal amount, containing identical terms and provisions, upon
surrender of the Registered Debt Securities to be exchanged at any such office
or agency. Whenever any such Registered Debt Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Registered Debt Securities which the Holder making the exchange is
entitled to receive. Unless otherwise specified with respect to any series of
Debt Securities as contemplated by Section 301, Bearer Debt Securities may not
be issued in exchange for Registered Debt Securities.
If (but only if) permitted by the applicable Board Resolution and (subject
to Section 303) set forth in the applicable Officers' Certificate, or in any
indenture supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Debt Securities of any series may be exchanged for
Registered Debt Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor, upon surrender of the Bearer
Debt Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Debt Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in
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default, any such permitted exchange may be effected if the Bearer Debt
Securities are accompanied by payment in funds acceptable to the Company in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and the
Trustee if there is furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Debt Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the portion of such payment equal to the
face amount of such surrendered coupon, provided, however, that, except as
otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in case
a Bearer Debt Security of any series is surrendered at any such office or agency
in a permitted exchange for a Registered Debt Security of the same series and
like tenor after the close of business at such office or agency on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Debt Security shall be
surrendered without the coupon relating to such Interest Payment Date or
proposed date for payment, as the case may be, and interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of the Registered
Debt Security issued in exchange for such Bearer Debt Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture. Whenever any Debt Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Debt Securities which the Holder making the exchange is entitled to
receive. Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Debt Security shall be
exchangeable only as provided in this paragraph. If the depository for any
permanent global Debt Security is DTC, then, unless the terms of such global
Debt Security expressly permit such global Debt Security to be exchanged in
whole or in part for definitive Debt Securities, a global Debt Security may be
transferred, in whole but not in part, only to a nominee of DTC, or by a nominee
of DTC to DTC, or to a successor to DTC for such global Debt Security selected
or approved by the Company or to a nominee of such successor to DTC. If at any
time (i) DTC notifies the Company that it is unwilling or unable to continue as
depository for the applicable global Debt Security or Debt Securities or if at
any time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 if so required by applicable law or regulation, and, in
either case, a successor depository is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
ineligibility, (ii) the Company in its sole discretion determines that such
global Debt Securities shall be exchangeable for definitive Debt Securities or
(iii) there shall have occurred and be continuing an Event of Default under this
Indenture with respect to the Debt Securities of any series and beneficial
owners representing a majority in aggregate principal amount of the Outstanding
Debt Securities represented by such global Debt Securities advise DTC to cease
acting as depository, then the Company shall execute, and the Trustee shall
authenticate and deliver, definitive Debt Securities of like series, rank, tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such global Debt Security or Debt Securities. If any
beneficial owner of an interest in a permanent global
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Debt Security is otherwise entitled to exchange such interest for Debt
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global Debt
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall execute, and the Trustee shall authenticate and deliver,
definitive Debt Securities in aggregate principal amount equal to the principal
amount of such beneficial owner's interest in such permanent global Debt
Security. On or after the earliest date on which such interests may be so
exchanged, such permanent global Debt Security shall be surrendered for exchange
by DTC or such other depository as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company's agent for such purpose;
provided, however, that no Bearer Debt Security delivered in exchange for a
portion of a permanent global Debt Security shall be mailed or otherwise
delivered to any location in the United States. If a Registered Debt Security
is issued in exchange for any portion of a permanent global Debt 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 Registered Debt 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 Debt Security is payable in accordance with the
provisions of this Indenture.
All Debt Securities issued upon any registration of transfer or exchange of
Debt Securities shall be the valid obligations of the Company, evidencing the
same Debt, and entitled to the same benefits under this Indenture, as the Debt
Securities surrendered upon such registration of transfer or exchange.
Every Registered Debt Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Debt Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Debt Security
Registrar duly executed by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made to the Holder for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Debt
Securities, other than exchanges pursuant to Section 304, 906 or 1107 or upon
surrender of a Debt Security for conversion in part or repayment in part at the
option of the Holder not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Debt Security if such Debt
Security may be among those selected for redemption during a period beginning at
the opening of business 15 days before selection of the
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Debt Securities to be redeemed under Section 1103 and ending at the close of
business on (A) if such Debt Securities are issuable only as Registered Debt
Securities, the day of the mailing of the relevant notice of redemption or
(B) if such Debt Securities are issuable as Bearer Debt Securities, the day of
the first publication of the relevant notice of redemption or, if such Debt
Securities are also issuable as Registered Debt Securities and there is no
publication, the day of mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Debt Security so selected
for redemption in whole or in part, except, in the case of any Registered Debt
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Debt Security so selected for redemption except
that such a Bearer Debt Security may be exchanged for a Registered Debt Security
of that series and like tenor, provided that such Registered Debt Security shall
be simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Debt Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such Debt
Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN DEBT SECURITIES. If
any mutilated Debt Security or a Debt Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such Debt Security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Debt Security of the same series and
principal amount, containing identical terms and provisions and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Debt Security.
If there shall be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Debt Security or
coupon, and (ii) such Debt Security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Debt Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Debt Security or in exchange for the Debt Security to
which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Debt Security of the same series
and principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Debt Security or
to the Debt Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any
such mutilated, destroyed, lost or stolen Debt Security or coupon has become or
is about to become due and payable, the company in its discretion may, instead
of issuing a new Debt Security, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Debt Security or to the Debt
Security to which such destroyed, lost or stolen coupon appertains, pay such
Debt Security or coupon; provided, however, that payment of principal of (and
premium, if any), any interest on and any Additional Amounts with respect to,
Bearer Debt Securities shall,
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except as otherwise provided in Section 1002, be payable only at an office or
agency located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Debt Securities shall be
payable only upon presentation and surrender of the coupons appertaining
thereto.
Upon the issuance of any new Debt Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debt Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Debt Security,
or in exchange for a Debt Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Debt Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Debt Securities of
that series and their coupons, if any, 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 Debt Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED. Except as
otherwise specified with respect to a series of Debt Securities in accordance
with the provisions of Section 301, interest on any Registered Debt Security
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Debt Security (or
one or more Predecessor Debt Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided, however,
that each installment of interest on any Registered Debt Security may at the
Company's option be paid by (i) mailing a check for such interest, payable to or
upon the written order of the Person entitled thereto pursuant to Section 308,
to the address of such Person as it appears on the Security Register or
(ii) transfer to an account maintained by the payee located in the United
States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Debt Securities of any series, payment of interest may be made, in the case
of a Bearer Debt Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, interest, if any,
payable on any permanent global Debt Security or any Interest Payment Date will
be paid to DTC, Euroclear and/or CEDEL, as the case may be, with respect to that
portion of such permanent global Debt Security held for its account by Cede &
Co. (or by another nominee of DTC or by DTC) or the Common Depository, as the
case may be, for the purpose of permitting such party to credit the interest
received by it in respect of such permanent global Debt Security to the accounts
of the beneficial owners thereof.
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In case a Bearer Debt Security of any series is surrendered in exchange for
a Registered Debt Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular Record
Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Debt Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Debt
Security issued in exchange for such Bearer Debt Security, but will be payable
only to the Holder of such coupon when due in accordance with the provisions of
this Indenture.
Except as otherwise specified with respect to a series of Debt Securities
in accordance with the provisions of Section 301, any interest on any Registered
Debt Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Debt Securities of such series
(or their respective Predecessor Debt 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 shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Debt Security of such
series and the date of the proposed payment (which shall not be less than
20 days after such notice is received by the Trustee), and at the same time
the Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Debt Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Debt Securities of
such series) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Debt Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee shall in the name and at the expense of
the Company, cause a similar notice to be published at least once in an
Authorized Newspaper in each Place of Payment, but such publications shall
not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been
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mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names the Registered Debt Securities of such series (or their
respective Predecessor Debt 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). In case a Bearer Debt Security of
any series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Debt Security of such series after
the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Debt Security
shall be surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed date of
payment in respect of the Registered Debt Security issued in exchange for
such Bearer Debt Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Debt Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Debt Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Debt Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Debt Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Debt Security.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Debt Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose name
such Registered Debt Security is registered as the owner of such Debt Security
for the purpose of receiving payment of principal of (and premium, if any), and
(subject to Sections 305 and 307) interest on, such Registered Debt Security and
for all other purposes whatsoever, whether or not such Registered Debt Security
be overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Debt Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Debt Security and the Holder
of any coupon as the absolute owner of such Debt Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Debt Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Debt Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on
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account of beneficial ownership interests of a Debt Security in global form or
for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Debt Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee from giving effect to any written certification, proxy or
other authorization furnished by any depository, as a Holder, with respect to
such global Debt Security or impair, as between such depository and owners of
beneficial interests in such global Debt Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such global Debt Security.
SECTION 309. CANCELLATION. All Debt Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Debt Securities and coupons surrendered directly to the Trustee for
any such purpose shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Debt Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Debt Securities previously
authenticated hereunder which the Company has not issued and sold, and all Debt
Securities so delivered shall be promptly canceled by the Trustee. If the
Company shall so acquire any of the Debt Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Debt Securities unless and until the same are surrendered to
the Trustee for cancellation. No Debt Securities shall be authenticated in lieu
of or in exchange for any Debt Securities canceled as provided in this Section,
except as expressly permitted by or pursuant to this Indenture. Canceled Debt
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by a Company Order the Company directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Debt Securities of any series,
interest on the Debt Securities of each series shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Debt Securities specified in such Company Request (except as
hereinafter provided in this Section 401), the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
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(1) either
(A) all Debt Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Debt Securities surrendered for exchange
for Registered Debt Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section 305,
(ii) Debt Securities and coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Debt Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Debt Securities and coupons of
such series for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all Debt Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company, and the Company, in the case
of (i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies, currency unit or units or
composite currency or currencies in which the Debt Securities of such
series are payable, sufficient to pay and discharge the entire
indebtedness on such Debt Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and interest, and any Additional Amounts with respect thereto,
to the date of such deposit (in the case of Debt Securities which have
become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture as to such series have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, and the obligations of
the Company and the Trustee with respect to the Securities of such series under
Sections 305, 306, 402, 1002 and 1003, with respect to the payment of Additional
Amounts, if any, with respect to such Securities as contemplated by Section 1015
and with respect to any rights to convert or exchange such Securities into
Common Shares or Preferred Shares or other securities or property, shall
survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions of the
last paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Debt Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (other than the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and interest, if any,
and Additional Amounts, if any, for whose payment such money has been deposited
with or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used herein
with respect to any particular series of Debt Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on, or any Additional
Amounts payable in respect of any interest on, any Debt Security of that
series or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of any principal of or premium, if any,
on, or any Additional Amounts payable in respect of any principal of or
premium, if any, on, any Debt Security of that series when it becomes due
and payable at its Maturity (whether at Stated Maturity, upon redemption,
notice of option to elect repayment or otherwise); or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Debt Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to any Debt Security
of that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this
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Section specifically dealt with or included herein solely for the benefit
of a series of Debt Securities other than that series), and continuance of
such default or breach for a period of 60 days after there has been given,
by registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Debt Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) default under any bond, note, debenture or other evidence of
indebtedness of the Company or any of its Subsidiaries (including an event
of default with respect to any other series of Debt Securities), or under
any mortgage, indenture or other instrument under which there may be issued
or by which there may be secured or evidenced any indebtedness of the
Company or any of its Subsidiaries, whether such indebtedness exists on the
date of this Indenture or shall hereafter be created, which results in such
indebtedness in an aggregate principal amount exceeding $20,000,000
becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, or which constitutes a failure
to pay at maturity or other scheduled payment date (after expiration of any
applicable grace period) such indebtedness in an aggregate principal amount
exceeding $20,000,000, but only if such indebtedness is not discharged or
such acceleration is not rescinded or annulled within 10 days after there
shall have been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least
10% in aggregate principal amount of the Outstanding Debt Securities of
that series a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(6) the Company or any Significant Subsidiary of the Company pursuant
to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order or decree for relief
against it in an involuntary case or to the commencement of any
bankruptcy or insolvency case or proceeding against it,
(C) consents to the appointment of a Custodian of it or for any
substantial part of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary of the Company in an involuntary case,
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(B) adjudges the Company or any Significant Subsidiary of the
Company a bankrupt or insolvent,
(C) approves as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company or any Significant Subsidiary of the Company,
(D) appoints a Custodian of the Company or any Significant
Subsidiary of the Company or for all or any substantial part of the
property of the Company or any Significant Subsidiary of the Company,
or
(E) orders the winding up or liquidation of the Company or any
Significant Subsidiary of the Company,
and the order or decree described in this clause (7) remains unstayed and
in effect for 60 days; or
(8) any other Event of Default provided with respect to Debt
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11 U.S. Code
or any similar Federal or State law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator or
other similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Debt Securities of any series at the time
outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding Debt
Securities of that series may declare the principal (or, if any Debt Securities
are Original Issue Discount Debt Securities or Indexed Debt Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Debt Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to Debt
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of that series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the Debt Securities of such series are payable (except as may be
otherwise specified pursuant to Section 301 for the Debt Securities of such
series):
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(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Debt Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Debt Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates borne by or provided for in such Debt Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such Debt
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Debt Securities of that
series, other than the nonpayment of the principal of (or premium, if any)
or interest on Debt Securities of that series which have become due solely
by such declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Debt Security of any series and any
related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Debt Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Debt Securities of such series and coupons, the
whole amount then due and payable on such Debt Securities and coupons for
principal (and premium, if any) and interest and Additional Amounts, with
interest upon any overdue principal (and premium, if any) and, to the extent
that payment of such interest shall be legally enforceable, upon any overdue
installments of interest or Additional Amounts, if any, at the rate or rates
borne by or provided for in such Debt Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
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If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Debt Securities of such
series and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any other obligor upon
such Debt Securities of such series, wherever situated.
If an Event of Default with respect to Debt Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Debt Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Debt Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Debt Securities of any series shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Debt Securities of such series, of
principal (and premium, if any) and interest and Additional Amounts, if
any, owing and unpaid in respect of the Debt 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 of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Debt Securities of such series and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Debt
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Debt Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Debt Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF DEBT
SECURITIES OR COUPONS. All rights of action and claims under this Indenture or
any of the Debt Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Debt Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Debt Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Debt Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Debt Securities and coupons for principal (and premium, if any) and
interest and any Additional Amounts in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and payable on
such Debt Securities and coupons for principal (and premium, if any),
interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. LIMITATION ON SUITS. No Holder of any Debt Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Debt Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Debt Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
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(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Debt Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM,
IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other provision in
this Indenture, the Holder of any Debt Security or coupon shall have the right
which is absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Debt Security or payment of such coupon
on the respective due dates expressed in such Debt Security or coupon (or, in
the case of redemption, on the Redemption Date or, in the case of repayment at
the option of the Holder, on the Repayment Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Debt Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Company, the Trustee and the
Holders of Debt Securities and coupons shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Debt Securities or coupons in the last paragraph of Section 306, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders of
Debt Securities or coupons is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
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SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Debt Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Five or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Debt Securities or coupons, as
the case may be.
SECTION 512. CONTROL BY HOLDERS OF DEBT SECURITIES. The Holders of not
less than a majority in principal amount of the Outstanding Debt Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Debt Securities
of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Debt
Securities of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Debt Securities of any series
may on behalf of the Holders of all the Debt Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Debt Security
of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the
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covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Debt Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Debt Securities of any series, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of (or premium, if
any) or interest on any Debt Security on or after the respective Stated
Maturities expressed in such Debt Security (or, in the case of redemption, on or
after the Redemption Date or, in the case of repayment at the option of the
Holder, on or after the Repayment Date) or for the enforcement of the right, if
any, to convert or exchange any Debt Security into Common Shares, Preferred
Shares or other securities or property in accordance with its terms.
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Debt Securities of any series, the
Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to any Debt Security of such
series, or in the payment of any sinking fund installment with respect to the
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as a Responsible Officer of the Trustee in good faith
determines, that the withholding of such notice is in the interests of the
Holders of the Debt Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in Section
501(4) with respect to the Debt Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to the Debt Securities of such series.
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SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Debt Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to Section
303 which shall be sufficiently evidenced as provided therein) and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Debt Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
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(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBT SECURITIES.
The recitals contained herein and in the Debt Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Debt Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Debt
Securities and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Debt Securities or the proceeds thereof.
SECTION 604. MAY HOLD DEBT SECURITIES. The Trustee, any Paying Agent,
Debt Security Registrar, Authenticating Agent or any other agent of the Company,
in its individual or any other capacity, may become the owner or pledgee of Debt
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Debt Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and
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disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien for payment of the Trustee's fees
and expenses prior to the Debt Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the payment of
principal of (or premium, if any) or interest on or Additional Amounts with
respect to particular Debt Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a) (1) and shall have a
combined capital and surplus of at least $50,000,000 (or which trust company
shall have a combined capital and surplus of at least $10,000,000 and whose
ultimate parent holding company shall have a combined capital and surplus of at
least $50,000,000). If such corporation (or ultimate parent holding company, as
the case may be) publishes reports of condition at least annually, pursuant to
law or the requirements of Federal, State, Territorial or District of Columbia
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation (or ultimate parent holding
company, as the case may be) shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Debt Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a
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successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time with respect to the Debt
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Debt Securities of such series delivered to the Trustee and
to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Debt Security who has been a bona fide Holder of a Debt
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by
any Holder of a Debt Security who has been a bona fide Holder of a Debt
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all Debt
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Debt Security
who has been a bona fide Holder of a Debt Security for at least six months may,
on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all Debt
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Debt Securities of one or more series, the Company, by or pursuant to a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Debt Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Debt 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 Debt Securities of any particular series). If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debt
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Debt Securities of such series delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Debt Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debt Securities of any series shall have been so
appointed by the Company or the Holders of Debt Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Debt Security
who has been a bona fide Holder of a Debt
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Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to Debt Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Debt Securities of any series and each
appointment of a successor Trustee with respect to the Debt Securities of any
series in the manner provided for notices to the Holders of Debt Securities in
section 106. Each notice shall include the name of the successor Trustee with
respect to the Debt Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Debt
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its lien and claim, if any, provided
for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Debt Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Debt
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine hereof, wherein each successor
Trustee shall accept such appointment and which (1) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Debt 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 Debt 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
Debt Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Debt Securities of that
or those series to which the appointment of such successor Trustee relates; but,
on request of the Company or
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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 Debt Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article Six.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Debt Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Debt Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Debt Securities or coupons. In case any Debt Securities or
coupons shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Debt Securities or coupons,
in either its own name or that of its predecessor Trustee, with the full force
and effect which this Indenture provides for the certificate of authentication
of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of
the Debt Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Debt
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Debt Securities of such series issued upon exchange, registration
of transfer or partial redemption or repayment thereof, and Debt Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Debt Securities by the Trustee
or the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
the
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United States of America or of any State or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or state authorities. If such Authenticating Agent publishes reports
of condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Debt Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Debt Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Debt Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Debt Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
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Chase Trust Company of California, as Trustee
By:
-----------------------------------------
as Authenticating Agent
By:
-----------------------------------------
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder
of Debt Securities or coupons, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Debt Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Debt Securities in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Debt Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Debt Securities as provided in TIA Section 313 (c) a brief report dated as of
such May 15 if required by TIA Section 313(a).
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of such Sections, then
it will file with the Trustee and the commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
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(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Debt Securities, within 30
days after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record Date
for interest for each series of Debt Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Debt Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Debt Securities,
semiannually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Debt
Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF COMPANY AND SALES, LEASES AND
CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Company will not, in
any transaction or series of related transactions, consolidate with, or sell,
lease, assign, transfer or otherwise convey all or substantially all of its
assets to, or merge with or into, any other Person unless (i) either the Company
shall be the continuing corporation, or the successor Person (if other than the
Company) formed by or resulting from any such consolidation or merger or which
shall have received the transfer of such assets is a corporation organized and
existing under the laws of the United States of America or a State thereof or
the District of Columbia and shall expressly assume, by supplemental indenture
executed by such successor corporation and delivered by it to the Trustee (which
supplemental indenture shall comply with Article Nine hereof and shall be
reasonably satisfactory to the Trustee), the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on and all Additional
Amounts, if any, payable in respect of, all of the Outstanding Debt Securities,
according to their tenor, and the due and punctual performance and observance of
all of the other covenants and conditions contained in this Indenture and the
Debt Securities to be performed or observed by the
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Company; (ii) immediately after giving effect to such transaction and treating
any Debt (including Acquired Debt) which becomes an obligation of the Company or
any of its Subsidiaries as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both, would become an
Event of Default, shall have occurred and shall be continuing; and (iii) the
Company shall have delivered to the Trustee the Officers' Certificate and
Opinion of Counsel required pursuant to Section 803 below. In the event that
the Company is not the continuing corporation, then, for purposes of clause
(ii) of the preceding sentence, the successor corporation shall be deemed to be
the "Company" referred to in such clause (ii).
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease, assignment, transfer or conveyance and
upon any such assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for and may exercise every right
and power of the Company, with the same effect as if it had been named as the
"Company" herein; and the predecessor corporation, except in the case of a
lease, shall be released from any further obligation under this Indenture and
the Debt Securities. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the Debt Securities issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor corporation, instead of the Company, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Debt Securities which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Debt Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Debt Securities so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debt Securities theretofore
or thereafter issued in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale, lease, assignment,
transfer or conveyance, such changes in phraseology and form (but not in
substance) may be made in the Debt Securities thereafter to be issued as may be
appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease, assignment, transfer or conveyance permitted
under Section 801 is also subject to the condition precedent that the Trustee
receive an Officers' Certificate and an Opinion of Counsel to the effect that
any such consolidation, merger, sale, lease, assignment, transfer or conveyance,
and the assumption by any successor corporation, complies with the provisions of
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Debt Securities or coupons, the Company,
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when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Debt Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Debt Securities (and if such covenants are
to be for the benefit of less than all series of Debt Securities, stating
that such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Debt Securities (and if such Events of
Default are to be for the benefit of less than all series of Debt
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however, that in
respect of any such additional Events of Default such supplemental
indenture may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default or may
limit the right of the Holders of a majority in aggregate principal amount
of that or those series of Debt Securities to which such additional Events
of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Debt Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Debt Securities, to permit Bearer Debt
Securities to be issued in exchange for Registered Debt Securities, to
permit Bearer Debt Securities to be issued in exchange for Bearer Debt
Securities of other authorized denominations or to permit or facilitate the
issuance of Debt Securities in uncertificated form, provided that any such
action shall not adversely affect the interests of the Holders of Debt
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that no such change or elimination shall become effective with
respect to the Outstanding Debt Securities of any series issued hereunder
which were first issued prior to the date of such change or elimination and
which are entitled to the benefit of such provision; or
(6) to secure the Debt Securities; or
(7) to establish the form or terms of Debt Securities of any series
and any related coupons as permitted by Sections 201 and 301, including the
provisions and
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procedures, if applicable, relating to Debt Securities convertible into
Common Shares or Preferred Shares or other securities or property, as the
case may be; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt 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; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such action shall not adversely
affect the interests of the Holders of Debt Securities of any series or any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the discharge,
defeasance or covenant defeasance, as the case may be, of any series of
Debt Securities pursuant to Sections 401, 1402 and 1403; provided that any
such action shall not adversely affect the interests of the Holders of Debt
Securities of such series and any related coupons or any other series of
Debt Securities in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Debt Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of the Debt Securities of such series or of
modifying in any manner the rights of the Holders of Debt Securities of such
series and any related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Debt Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of, or premium, if any, or
interest, if any, on, or Additional Amounts, if any, with respect to, any
Debt Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof,
or any premium payable thereon, or change any obligation of the Company to
pay Additional Amounts pursuant to Section 1015 (except as contemplated by
Section 801 and permitted by Section 901(1)), or reduce the amount of the
principal of an Original Issue Discount Debt Security that would be due and
payable upon a declaration of acceleration of the maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of the Holder of any Debt
Security to repayment of such Debt Security at such Holder's option, or
change any Place of Payment where, or the currency or currencies, currency
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unit or units or composite currency or currencies in which, the principal
of any Debt Security or any premium or interest thereon or any Additional
Amounts in respect thereof is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date or, in the case of repayment at the option of Holder, on or after the
Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding Debt
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1013, except to increase the percentage required to effect such
action or to provide that certain other provisions of this Indenture cannot
be modified or waived without the consent of the Holder of each Outstanding
Debt Security affected thereby, or
(4) make any change that adversely affects the right, if any, to
convert or exchange any Debt Security for Common Shares, Preferred Shares
or other securities or property in accordance with its terms.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Debt Securities, or which modifies
the rights of the Holders of Debt 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 Debt Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article Nine, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Debt Securities theretofore
or thereafter authenticated and delivered hereunder and of any coupon
appertaining thereto shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article Nine shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN DEBT SECURITIES TO SUPPLEMENTAL INDENTURES.
Debt Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may, and shall, if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debt Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Company covenants and agrees for the benefit of the
Holders of each series of Debt Securities that it will duly and punctually pay
the principal of (and premium, if any) and interest on and any Additional
Amounts payable in respect of the Debt Securities of that series in accordance
with the terms of such series of Debt Securities, any coupons appertaining
thereto and this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Debt Securities, any interest due on
and any Additional Amounts payable in respect of Bearer Debt Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in
Section 1015 in respect of principal of (or premium, if any, on) such a Debt
Security, shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Debt Securities of a
series are issuable only as Registered Debt Securities, the Company shall
maintain in each Place of Payment for any series of Debt Securities an office or
agency where Debt Securities of that series may be presented or surrendered for
payment or conversion, where Debt Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Debt Securities of that series and this
Indenture may be served. If Debt Securities of a series are issuable as Bearer
Debt Securities, the Company will maintain: (A) in the Borough of Manhattan,
The City of New York, an office or agency where any Registered Debt Securities
of that series may be presented or surrendered for payment or conversion, where
any Registered Debt Securities of that series may be surrendered for
registration of transfer, where Debt Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Debt Securities of that series and this Indenture may be served
and where Bearer Debt Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations
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applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Debt Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Debt Securities of that
series pursuant to Section 1015) or conversion; provided, however, that if the
Debt Securities of that series are listed on the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the Debt
Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Debt Securities of
that series are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Debt
Securities of that series may be surrendered for registration of transfer, where
Debt Securities of that series may be surrendered for exchange and where notices
and demands to or upon the Company in respect of the Debt Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of each
such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee (and the Company hereby
appoints the Trustee its agent to receive all such presentations, surrenders,
notices and demands), except that Bearer Debt Securities of that series and the
related coupons may be presented and surrendered for payment (including payment
of any Additional Amounts payable on Bearer Debt Securities of that series
pursuant to Section 1015) or conversion at the offices specified in the Debt
Security or pursuant to Section 301 in London, England, and the Company hereby
appoints the same as its agent to receive such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Debt Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Debt Securities shall be made at any office or
agency of the Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a bank located in
the United States; provided, however, that, if the Debt Securities of a series
are payable in Dollars, payment of principal of and any premium and interest on
any Bearer Debt Security (including any Additional Amounts payable in respect of
Debt Securities of such series pursuant to Section 1015) shall be made at the
office or agency maintained by the Company for such purpose in the Borough of
Manhattan, The City of New York if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Debt Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Debt
Securities of any series for such purposes. The Company will give prompt
written notice to the
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Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified pursuant to
Section 301 with respect to a series of Debt Securities, the Company hereby
designates as a Place of Payment for each series of Debt Securities the office
or agency of the Company in the Borough of Manhattan, The City of New York, and
initially appoints the Trustee, at its offices which on the date of this
Indenture are located at c/o The Chase Manhattan Bank, Corporate Trust
Securities Window, 55 Water Street, Room 234, North Building, New York, New York
10041 in such city and as its agent to receive all such presentations,
surrenders, notices and demands and appoints the Trustee, at its Corporate Trust
Office and at its offices in the Borough of Manhattan, The City of New York, as
Paying Agent and Securities Registrar. The Company may subsequently appoint a
different office or agency in the Borough of Manhattan, The City of New York and
a different Paying Agent and Security Registrar for the Debt Securities of any
Series.
Unless otherwise specified with respect to any Debt Securities pursuant to
Section 301, if and so long as the Debt Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of this Indenture, then
the Company will maintain with respect to each such series of Debt Securities,
or as so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR DEBT SECURITIES PAYMENTS TO BE HELD IN TRUST. If
the Company shall at any time act as its own Paying Agent with respect to any
series of any Debt Securities and any related coupons, it will, on or before
each due date of the principal of (or premium, if any) or interest on or
Additional Amounts in respect of any of the Debt Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum in the currency or currencies, currency unit or units or composite currency
or currencies in which the Debt Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Debt Securities of such
series) sufficient to pay the principal (and premium, if any) and interest and
Additional Amounts so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Debt Securities and any related coupons, it will, on or before each due date of
the principal of (or premium, if any) or interest on or Additional Amounts in
respect of any Debt Securities of that series, deposit with a Paying Agent a sum
(in the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) and interest and Additional Amounts so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, interest and Additional Amounts and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will
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(1) hold all sums held by it for the payment of principal of (and
premium, if any) and interest on and any Additional Amounts with respect to
the Debt Securities in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Debt Securities) in the making of any such payment
of principal (or premium, if any) or interest or Additional Amounts; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
sums.
Except as otherwise provided with respect to the Debt Securities of any
series pursuant to Section 301, any money deposited with the Trustee or any
Paying Agent, or held by the Company, in trust for the payment of the principal
of (or premium, if any) or interest on, or any Additional Amounts in respect of,
any Debt Security of any series and remaining unclaimed for two years after such
principal (or premium, if any), or interest or Additional Amounts has become due
and payable shall be paid to the Company upon Company Request or (if then held
by the Company) shall be discharged from such trust; and the Holder of such Debt
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (or premium, if any) or interest on, or
any Additional Amounts in respect of, such Debt Security, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. AGGREGATE DEBT TEST. The Company will not, and will not
cause or permit any of its Subsidiaries to, incur any Debt (including, without
limitation, Acquired Debt) if, immediately after giving effect to the incurrence
of such Debt and the application of the proceeds therefrom on a pro forma basis,
the aggregate principal amount of all outstanding Debt of the Company and its
Subsidiaries (determined on a consolidated basis in accordance with generally
accepted accounting principles) is greater than 60% of the sum of (without
duplication) (i) the Total Assets of the Company and its Subsidiaries as of the
last day of the then most recently ended fiscal quarter and (ii) the aggregate
purchase price of any real estate assets or
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mortgages receivable acquired, and the aggregate amount of any securities
offering proceeds received (to the extent such proceeds were not used to acquire
real estate assets or mortgages receivable or used to reduce Debt), by the
Company or any of its Subsidiaries since the end of such fiscal quarter,
including the proceeds obtained from the incurrence of such additional Debt,
determined on a consolidated basis in accordance with generally accepted
accounting principles.
SECTION 1005. DEBT SERVICE TEST. The Company will not, and will not cause
or permit any of its Subsidiaries to, incur any Debt (including, without
limitation, Acquired Debt) if the ratio of Consolidated Income Available for
Debt Service to the Annual Debt Service Charge for the period consisting of the
four consecutive fiscal quarters most recently ended prior to the date on which
such additional Debt is to be incurred shall have been less than 1.5:1 on a pro
forma basis after giving effect to the incurrence of such Debt and the
application of the proceeds therefrom, and calculated on the assumption that
(i) such Debt and any other Debt (including, without limitation, Acquired Debt)
incurred by the Company or any of its Subsidiaries since the first day of such
four-quarter period had been incurred, and the application of the proceeds
therefrom (including to repay or retire other Debt) had occurred, on the first
day of such period, (ii) the repayment or retirement of any other Debt of the
Company or any of its Subsidiaries since the first day of such four-quarter
period had occurred on the first day of such period (except that, in making such
computation, the amount of Debt under any revolving credit facility, line of
credit or similar facility shall be computed based upon the average daily
balance of such Debt during such period), and (iii) in the case of any
acquisition or disposition by the Company or any of its Subsidiaries of any
asset or group of assets, in any such case with a fair market value (determined
in good faith by the Company's Board of Directors) in excess of $1 million,
since the first day of such four-quarter period, whether by merger, stock
purchase or sale or asset purchase or sale or otherwise, such acquisition or
disposition had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such pro forma calculation. If the Debt giving rise to the need to make the
foregoing calculation or any other Debt incurred after the first day of the
relevant four-quarter period bears interest at a floating rate then, for
purposes of calculating the Annual Debt Service Charge, the interest rate on
such Debt shall be computed on a pro forma basis as if the average rate which
would have been in effect during the entire such four-quarter period had been
the applicable rate for the entire such period.
SECTION 1006. SECURED DEBT TEST. The Company will not, and will not cause
or permit any of its Subsidiaries to, incur any Debt (including, without
limitation, Acquired Debt) secured by any Lien on any property or assets of the
Company or any of its Subsidiaries, whether owned on the date of this Indenture
or thereafter acquired, if, immediately after giving effect to the incurrence of
such Debt and the application of the proceeds therefrom on a pro forma basis,
the aggregate principal amount (determined on a consolidated basis in accordance
with generally accepted accounting principles) of all outstanding Debt of the
Company and its Subsidiaries which is secured by any Lien on any property or
assets of the Company or any of its Subsidiaries is greater than 40% of the sum
of (without duplication) (i) the Total Assets of the Company and its
Subsidiaries as of the last day of the then most recently ended fiscal quarter
and (ii) the aggregate purchase price of any real estate assets or mortgages
receivable acquired, and the aggregate amount of any securities offering
proceeds received (to the extent such proceeds were
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not used to acquire real estate assets or mortgages receivable or used to reduce
Debt), by the Company or any of its Subsidiaries since the end of such fiscal
quarter, including the proceeds obtained from the incurrence of such additional
Debt, determined on a consolidated basis in accordance with generally accepted
accounting principles.
SECTION 1007. MAINTENANCE OF TOTAL UNENCUMBERED ASSETS. The Company will,
and will cause its Subsidiaries to, have at all times Total Unencumbered Assets
of not less than 150% of the aggregate principal amount of all outstanding
Unsecured Debt of the Company and its Subsidiaries, determined on a consolidated
basis in accordance with generally accepted accounting principles.
SECTION 1008. EXISTENCE. Subject to Article Eight, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Company will not be required to preserve any right
or franchise if its Board of Directors determines that the preservation thereof
is no longer desirable in the conduct of its business and that the loss thereof
is not disadvantageous in any material respect to the Holders of the Debt
Securities Outstanding under this Indenture.
SECTION 1009. MAINTENANCE OF PROPERTIES. The Company will cause all of
its properties used or useful in the conduct of its business or the business of
any Subsidiary to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section shall prevent the
Company and its Subsidiaries from selling or otherwise disposing of for value
their respective properties in the ordinary course of business.
SECTION 1010. INSURANCE. The Company will, and will cause each of its
Subsidiaries to, keep in force upon all of its properties and operations
policies of insurance carried with responsible companies in such amounts and
covering all such risks as shall be customary in the industry in accordance with
prevailing market conditions and availability.
SECTION 1011. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Company or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1012. PROVISION OF FINANCIAL INFORMATION. Whether or not the
Company is subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, for so long as
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any Debt Securities are Outstanding, the Company will, to the extent permitted
under the Securities Exchange Act of 1934, file with the Commission the annual
reports, quarterly reports and other documents which the Company would have been
required to file with the Commission pursuant to such Section 13 or 15(d) if the
Company were so subject, on or prior to the respective dates (the "Required
Filing Dates") by which the Company would have been so required so to file such
documents.
The Company will also in any event (x) within 15 days after each Required
Filing Date (i) transmit by mail to all Holders, as their names and addresses
appear in the Security Register, without cost to such Holders, copies of the
annual reports, quarterly reports and other documents which the Company would
have been required to file with the Commission pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934 if the Company were subject to such
Sections, and (ii) file with the Trustee copies of the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 if the Company were subject to such Sections and (y) if filing such
documents by the Company with the Commission is not permitted under the
Securities Exchange Act of 1934, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder.
SECTION 1013. WAIVER OF CERTAIN COVENANTS. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1012, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
Outstanding Debt Securities of such series, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
SECTION 1014. STATEMENT AS TO COMPLIANCE. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a brief certificate
from its principal executive officer, principal financial officer or principal
accounting officer as to his or her knowledge of the Company's compliance with
all conditions and covenants under this Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof.
For purposes of this Section 1014, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1015. ADDITIONAL AMOUNTS. If any Debt Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Debt Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Debt Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Debt Security of any series, such mention shall be
deemed to include mention
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of the payment of Additional Amounts provided by the terms of such series
established pursuant to Section 301 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise specified as contemplated by Section 301, if the Debt
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Debt Securities (or if the Debt Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and
any premium or interest if there has been any change with respect to the matters
set forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Debt Securities of that series shall be made to
Holders of Debt Securities of that series or any related coupons who are not
United States Persons without withholding for or on account of any tax,
assessment or other governmental charge specified by the terms of the Debt
Securities of the series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required to
be withheld on such payments to such Holders of Debt Securities of that series
or related coupons and the Company will pay to the Trustee or such Paying Agent
or Paying Agents the Additional Amounts required by the terms of such Debt
Securities. In the event that the Trustee or any Paying Agent, as the case may
be, shall not so receive the above-mentioned certificate, then the Trustee or
such Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal, premium, if any,
or interest with respect to any Debt Securities of a series or related coupons
until it shall have received an Officers' Certificate advising otherwise and
(ii) to make all payments of principal, premium, if any, and interest with
respect to the Debt Securities of a series or related coupons without
withholding or deductions until otherwise advised. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against, any loss, liability or expense reasonably incurred without negligence
or bad faith on their part arising out of or in connection with actions taken or
omitted by any of them or in reliance on any Officers' Certificate furnished
pursuant to this Section or in reliance on the Company's not furnishing such an
Officers' Certificate.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Debt Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Debt Securities of any series) in accordance with this
Article.
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SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Company to redeem any Debt Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Debt Securities of any series, the Company shall, at least
45 days prior to the giving of the notice of redemption referred to in Section
1104 (unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Debt Securities
of such series to be redeemed. In the case of any redemption of Debt Securities
prior to the expiration of any restriction on such redemption provided in the
terms of such Debt Securities or elsewhere in this Indenture, the Company shall
furnish the Trustee with an Officers' Certificate evidencing compliance with
such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF DEBT SECURITIES TO BE REDEEMED. If
less than all the Debt Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Debt Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Debt Securities of such series issued on such date
with the same terms not previously called for redemption (excluding any such
Outstanding Debt Securities held by the Company or any of its Subsidiaries), by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Debt Securities of that series or any integral multiple
thereof) of the principal amount of Debt Securities of such series of a
denomination larger than the minimum authorized denomination for Debt Securities
of that series.
The Trustee shall promptly notify the Company and the Debt Security
Registrar (if other than itself) in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Debt Securities shall relate, in
the case of any Debt Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debt Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given
in the manner provided in section 106, not less than 30 days nor more than 60
days prior to the Redemption Date, unless a shorter period is specified by the
terms of such series established pursuant to Section 301, to each Holder of Debt
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Debt Security designated for redemption as a whole
or in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Debt Security
or portion thereof.
Any notice that is mailed to the Holders of Registered Debt Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1106, if any, and Additional
Amounts, if any,
(3) if less than all Outstanding Debt Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Debt Security or Debt Securities to
be redeemed,
(4) in case any Debt Security is to be redeemed in part only, the
notice shall state that on and after the Redemption Date, upon surrender of
such Debt Security, the Holder will receive, without a charge, a new Debt
Security or Debt Securities of such series of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date and Additional Amounts, if any, payable as
provided in Section 1106, will become due and payable upon each such Debt
Security, or the portion thereof, to be redeemed and, if applicable, that
interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Debt Securities,
together in the case of Bearer Debt Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest, if
any, and Additional Amounts, if any, or (if applicable) for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer Debt
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Debt Securities of any series are to be redeemed and
any Registered Debt Securities of such series are not to be redeemed, and
if such Bearer Debt Securities may be exchanged for Registered Debt
Securities not subject to redemption on this Redemption Date pursuant to
Section 305 or otherwise, the last date, as determined by the Company, on
which such exchanges may be made,
(10) the CUSIP number of such Debt Security, if any, and
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(11) if applicable, that a Holder of Debt Securities who desires to
convert Debt Securities for redemption must satisfy the requirements for
conversion contained in such Debt Securities, the then existing conversion
price or rate, and the date and time when the option to convert shall
expire.
Notice of redemption of Debt Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. At or prior to 12:00 noon (New
York City time) on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Debt Securities of such series are payable
(except as otherwise may be specified pursuant to Section 301 for the Debt
Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, and Additional Amounts, if any, with respect
to, all the Debt Securities or portions thereof which are to be redeemed on that
date.
SECTION 1106. DEBT SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Debt Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Debt Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the Debt
Securities of such series) (together with accrued interest, if any, and
Additional Amounts, if any, to the Redemption Date), and from and after such
date (unless the Company shall default in the payment of the Redemption Price or
accrued interest, if any, or Additional Amounts, if any) such Debt Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Debt Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Debt Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Debt Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, and Additional Amounts, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer Debt Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that, except as otherwise provided with
respect to Debt Securities convertible into Common Shares or Preferred Shares or
other securities or property, installments of interest on Registered Debt
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Debt Securities, or one or more Predecessor Debt
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
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If any Bearer Debt Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Debt Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Debt
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Debt Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by or
provided in the Debt Security.
SECTION 1107. DEBT SECURITIES REDEEMED IN PART. Any Registered Debt
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the 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 the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Debt Security without service charge a new Debt
Security or Debt Securities of the same series, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Debt Security so
surrendered.
SECTION 1108. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Debt Securities, the Company may arrange for
the purchase and conversion of any Debt Securities called for redemption by an
agreement with one or more investment bankers or other purchasers to purchase
such Debt Securities (a copy of which shall be delivered to the Trustee by the
Company prior to the relevant Redemption Date) by paying to the Trustee or the
Paying Agent in trust for the Holders of Debt Securities, on or before 12:00
Noon (New York City time) on the Redemption Date, an amount not less than the
Redemption Price, together with interest, if any, accrued to the Redemption Date
of such Debt Securities and Additional Amounts, if any, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Eleven, the obligation of the Company to pay the Redemption Price of such Debt
Securities, including all accrued interest, if any, and Additional Amounts, if
any, shall be deemed to be satisfied and discharged to the extent such amount is
so paid by such purchasers. If such an agreement is entered into, any Debt
Securities not duly surrendered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and surrendered by such purchasers
for conversion, all as of immediately prior to the close of business on the last
day on which Debt Securities of such series called for redemption may be
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converted in accordance with this Indenture and the terms of such Debt
Securities, subject to payment to the Trustee or Paying Agent of the
above-described amount. The Trustee or the Paying Agent shall hold and pay to
the Holders whose Debt Securities are selected for redemption any such amount
paid to it in the same manner as it would pay moneys deposited with it by the
Company for the redemption of Debt Securities. Without the Trustee's and the
Paying Agent's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Debt Securities shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee and the Paying Agent as set forth in this Indenture,
and the Company agrees to indemnify the Trustee and the Paying Agent from, and
hold them harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purpose and conversion of any Debt
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Trustee and the Paying Agent (including the fees and
expenses of their agents and counsel) in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of their
powers, duties, responsibilities or obligations under this Indenture.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Debt Securities of
a series except as otherwise specified as contemplated by Section 301 for Debt
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Debt Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such Debt Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Debt
Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Debt Securities of any series as
provided for by the terms of Debt Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH DEBT SECURITIES.
The Company may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Debt Securities of a series, (1) deliver
Outstanding Debt Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Debt Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as a credit Debt
Securities of such series which have been redeemed either at the election of the
Company pursuant to the terms of such Debt Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such Debt
Securities, as provided for by the terms of such Debt Securities, or which have
otherwise been acquired by the Company; provided that such Debt Securities so
delivered or applied as a credit have not been previously so credited. Such
Debt Securities shall be received and credited for such purpose by the Trustee
at the applicable Redemption Price specified in such Debt Securities for
redemption
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through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF DEBT SECURITIES FOR SINKING FUND. Not less
than 60 days prior to each sinking fund payment date for Debt Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory 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 in the currency or currencies,
currency unit or units or composite currency or currencies in which the Debt
Securities of such series are payable (except as otherwise specified pursuant to
section 301 for the Debt Securities of such series) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Debt Securities of
that series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Debt Securities to be so delivered and credited. If
such Officers' Certificate shall specify an optional amount to be added in cash
to the next ensuing mandatory sinking fund payment, the Company shall thereupon
be obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Debt Securities
to be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Debt Securities shall
be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Debt Securities of any series
which are repayable at the option of the Holders thereof before their Stated
Maturity shall be repaid in accordance with the terms of the Debt Securities of
such series. The repayment of any principal amount of Debt Securities pursuant
to such option of the Holder to require repayment of Debt Securities before
their Stated Maturity, for purposes of Section 309, shall not operate as a
payment, redemption or satisfaction of the indebtedness represented by such Debt
Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Debt Securities be
canceled. Notwithstanding anything to the contrary contained in this Section
1301, in connection with any repayment of Debt Securities, the Company may
arrange for the purchase of any Debt Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Debt Securities by
paying to the Holders of such Debt Securities on or before the close of business
on the Repayment Date an amount not less than the Repayment Price payable by the
Company on repayment of such Debt Securities (together with interest, if any,
and Additional Amounts, if any, to the Redemption Date), and the obligation of
the Company to pay the Repayment Price of such Debt Securities (together with
interest, if any, and Additional Amounts, if any, to the Redemption Date), shall
be satisfied and discharged to the extent such payment is so paid by such
purchasers.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Debt Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Debt Securities of
or within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to such Debt Securities), shall be applicable to such Debt
Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Debt Securities
and any coupons appertaining thereto, elect to have Section 1402 (if applicable)
or Section 1403 (if applicable) be applied to such Outstanding Debt Securities
and any coupons appertaining thereto upon compliance with the conditions set
forth below in this Article. Unless otherwise specified pursuant to Section
301, the Company's right, if any, to elect defeasance pursuant to Section 1402
or covenant defeasance pursuant to Section 1403 may only be exercised with
respect to all of the Outstanding Debt Securities of any series.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's exercise of
the above option applicable to this Section with respect to any Debt Securities
of or within a series, the Company shall be deemed to have been discharged from
its obligations with respect to such Outstanding Debt Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Debt Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) through (D) below, and to have satisfied all of its
other obligations under such Debt Securities and any coupons appertaining
thereto and this Indenture insofar as such Debt Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such outstanding Debt Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Debt
Securities and any coupons appertaining thereto when such payments are due,
(B) the Company's obligations with respect to such Debt Securities under
Sections 304, 305, 306, 1002 and 1003, with respect to the payment of Additional
Amounts, if any, on such Debt Securities as contemplated by Section 1015, and
with respect to any rights to convert or exchange such Debt Securities into
Common Shares, Preferred Shares or other securities or property, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder (including,
without limitation, those in Section 606 hereof) and (D) this Article Fourteen.
Subject to compliance with this Article Fourteen, the Company
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may exercise its option under this Section notwithstanding the prior exercise of
its option under Section 1403 with respect to such Debt Securities and any
coupons appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise of the
above option applicable to this Section with respect to any Debt Securities of
or within a series, the Company shall be released from its obligations under
Sections 1004 to 1012, inclusive, (except that the Company shall remain subject
to the covenant set forth in Section 1008 to preserve and keep in full force and
effect its corporate existence, except as permitted under Article Eight) and, if
specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Debt Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Debt Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 1004
to 1012, inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Debt Securities and any
coupons appertaining thereto, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4) or 501(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Debt Securities and any coupons appertaining thereto
shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Debt Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Debt Securities and
any coupons appertaining thereto, (1) an amount in such currency,
currencies or currency unit in which such Debt Securities and any coupons
appertaining thereto are then specified as payable at Stated Maturity or,
if such defeasance or covenant defeasance is to be effected in compliance
with subsection (f) below, on the relevant Redemption Date, as the case may
be, or (2) Government Obligations applicable to such Debt Securities and
coupons appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Debt Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity or
the applicable Redemption Date, as the case may be) which through the
scheduled payment of principal and interest
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in respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Debt Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination
thereof, in any case, in an amount sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any) and interest, if
any, on such Outstanding Debt Securities and any coupons appertaining
thereto on the Stated Maturity of such principal or installment of
principal or interest or the applicable Redemption Date, as the case may
be, and (ii) any mandatory sinking fund payments or analogous payments
applicable to such Outstanding Debt Securities and any coupons appertaining
thereto on the day on which such payments are due and payable in accordance
with the terms of this Indenture and of such Debt Securities and any
coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute, a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Debt
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(6) and
501(7) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Debt Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Debt Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
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(f) If the monies or Government Obligations or combination thereof,
as the case may be, deposited under subsection (a) above are sufficient to
pay the principal of, and premium, if any, and interest, if any, on such
Debt Securities provided such Debt Securities are redeemed on a particular
Redemption Date, the Company shall have given the Trustee irrevocable
instructions to redeem such Debt Securities on such date and to provide
notice of such redemption to Holders as provided in or pursuant to this
Indenture.
(g) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that, as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be), registration is not
required under the Investment Company Act of 1940, as amended, by the
Company, with respect to the trust funds representing such deposit or by
the Trustee for such trust funds.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Debt Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Debt Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (other than the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Debt Securities and any
coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but such money need not
be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Debt Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Debt Security in respect of which such deposit was made is
entitled to, and does, elect to receive payment in a currency or currency unit
other than that in which the deposit pursuant to Section 1404(a) has been made
in respect of such Debt Security, or (b) a Conversion Event occurs in respect of
the currency or currency unit in which the deposit pursuant to Section 1404(a)
has been made, the indebtedness represented by such Debt Security and any
coupons appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any), and interest, if any, on such Debt Security as it becomes due out of
the proceeds yielded by converting (from time to time as specified below in the
case of
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any such election) the amount or other property deposited in respect of such
Debt Security into the currency or currency unit in which such Debt Security
becomes payable as a result of such election or Conversion Event based on the
applicable market exchange rate on (x) in the case of payments made pursuant to
clause (a) above, the applicable market exchange rate for such currency or
currency unit in effect on the second Business Day prior to each payment date,
or (y) with respect to a Conversion Event, the applicable market exchange rate
for such currency or currency unit in effect (as nearly as feasible) at the time
of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposited
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Debt Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon Company Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any cash or Government Obligations deposited pursuant to Section 1404 in
accordance with this Indenture or the Debt Securities of the applicable series
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Debt Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1404 until such time as the Trustee or
Paying Agent is permitted to apply such money in accordance with this Indenture
and the Debt Securities of such series; provided, however, that if the Company
makes any payment of principal of, premium, if any, or interest on any Debt
Security of such series following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Debt Securities
to receive such payment from the cash and Government Obligations held by the
Trustee or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Debt 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 Debt Securities of such
series.
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SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at
any time call a meeting of Holders of Debt Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
The City of New York or, if Debt Securities of such series have been issued in
whole or in part as Bearer Debt Securities, in London as the Trustee shall
determine. Notice of every meeting of Holders of Debt Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Debt Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee 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 or the Holders of Debt Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place in The City of New York, or, if Debt Securities of such series
have been issued in whole or in part as Bearer Debt Securities, in London for
such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to
vote at any meeting of Holders of Debt Securities of any series, a Person shall
be (1) a Holder of one or more Outstanding Debt 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 Debt 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 Debt 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 and any representatives of the Company and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a majority in
principal amount of the Outstanding Debt Securities of a series shall constitute
a quorum for a meeting of Holders of Debt Securities of such series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given by the
Holders of not less than a specified percentage in principal amount of the
Outstanding Debt Securities of a series, the Persons entitled to vote such
specified percentage which is less or more than a majority in principal amount
of the Outstanding Debt Securities of such series shall constitute a quorum. In
the absence of a quorum within 30 minutes after the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Debt
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such
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adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall
state expressly the percentage, as provided above, of the principal amount of
the Outstanding Debt Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Debt Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less or more
than a majority, in principal amount of the Outstanding Debt 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 Debt
Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of Debt
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Debt Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this section 1504, if any
action is to be taken at a meeting of Holders of Debt Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Debt Securities affected thereby, or by the Holders of a specified
percentage in principal amount of the Outstanding Debt Securities of such series
and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Debt Securities of such
series that are entitled to vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall be
taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debt Securities of a series in regard to proof of the holding of Debt
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
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to vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Debt Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in the
manner specified in Section 104 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer Debt Securities.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 1502(b), in
which case the Company or the Holders of Debt 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 Debt Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Debt Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Debt 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
Debt 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 Debt Security of such series or proxy.
(d) Any meeting of Holders of Debt Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Debt Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Debt Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Debt Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Debt 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 Debt 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 fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached
79
<PAGE>
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
* * * *
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
BRE PROPERTIES, INC.
By:
------------------------------
Frank C. McDowell
President and Chief Executive Officer
Attest:
--------------------------
LeRoy E. Carlson
Executive Vice President,
Chief Financial Officer and Secretary
Chase Trust Company of California, as
Trustee
By:
-------------------------------
Print Name:
-----------------------
Title:
----------------------------
Attest:
By:
-------------------------------
Print Name:
-----------------------
Title:
----------------------------
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
<PAGE>
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[insert title or sufficient description of Debt Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Debt Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
Debt Securities through foreign branches of United States financial institutions
and who hold the Debt Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise BRE PROPERTIES, INC. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institutions) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Debt Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the above-captioned
Debt Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] ____________ of
such interest in the above-captioned securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Debt Security or an exchange for
<PAGE>
and delivery of definitive Debt Securities (or, if relevant, collection of any
interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:_______________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
----------------------------------------
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Debt Securities to be delivered]
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] ___________________
principal amount of the above-captioned Debt Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the Debt
Securities through foreign branches of United States financial institutions and
who hold the Debt Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such financial
institution has agreed, on its own behalf or through its agent, that we may
advise BRE PROPERTIES, INC. or its agent that such financial institution will
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) is
owned by United States or foreign financial institutions) for purposes of resale
during the restricted period (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Debt
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its possessions
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Debt Security representing the above-captioned Debt Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if
<PAGE>
relevant, collection of any interest) are no longer true and cannot be relied
upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
---------------- --
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
(Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the
Euroclear System (Cedel S.A.]
By:
-------------------------------------
<PAGE>
EXHIBIT 4.2
[LEGEND FOR INCLUSION IN GLOBAL NOTES-- THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT
IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
[LEGEND FOR INCLUSION IN GLOBAL NOTES -- UNLESS THIS NOTE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
No.:
CUSIP No.: Principal Amount: $___________
BRE PROPERTIES, INC.
7.20% Notes due 2007
BRE Properties, Inc., a Maryland corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
referred to below), for value received, hereby promises to pay to __________, or
registered assigns, the principal sum of _____________ DOLLARS ($_____________)
on June 15, 2007, and to pay interest thereon from June 15, 1997 or from the
most recent date to which interest has been paid or duly provided for,
semiannually on June 15 and December 15 of each year (each, an "Interest Payment
Date"), commencing December 15, 1997, and at Maturity, at the rate of 7.20% per
annum, until the principal hereof is paid or duly made available for payment.
Interest on this Note shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months. The interest so payable and punctually paid
or duly provided for on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the June 1 or December 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and may be paid to the
Person in whose name this Note (or one or more Predecessor Debt Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in such Indenture.
<PAGE>
Payment of the principal of and the interest on this Note will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City of New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that, at the option of the Company,
interest may be paid by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or by transfer to
an account maintained by the payee located in the United States.
This Note is one of a duly authorized issue of Debt Securities of the
Company (herein called the "Notes") issued and to be issued in one or more
series under an Indenture dated as of June 23, 1997 (herein called, together
with all indentures supplemental thereto, the "Indenture") between the Company
and Chase Trust Company of California, as trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Notes, and the
terms upon which the Notes are, and are to be, authenticated and delivered.
This Note is one of the series designated on the face hereof, limited (subject
to exceptions provided in the Indenture) in aggregate principal amount to
$50,000,000.
The Notes are not subject to redemption prior to the Stated Maturity of the
principal thereof.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Debt Securities of each series
issued under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in aggregate principal amount
of the Debt Securities at the time Outstanding of each series affected thereby.
The Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Debt Securities of any series
at the time Outstanding, on behalf of the Holders of all Debt Securities of such
series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Notes issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note,
at the time, place and rate, and in the coin or currency, herein and in the
Indenture prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Note may be registered on the Security Register
upon surrender of this Note for registration of transfer at the office or agency
of the Company maintained for the purpose in any place where the principal of
and interest on this Note are payable, duly endorsed, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
The Notes are issuable only in registered form without coupons in the
denominations of $1,000 and integral multiples of $1,000. As provided in the
Indenture and subject to certain limitations set forth therein, the Notes are
exchangeable for a like aggregate principal amount of Notes of authorized
denominations as requested by the Holders surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith, other than in
certain cases provided in the Indenture.
2
<PAGE>
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Notes (subject to certain exceptions)
or (ii) the Company may be released from its obligations under specified
covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or Government Obligations sufficient
to pay and discharge the entire indebtedness on all Notes, and satisfies certain
other conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or be valid or obligatory for any purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
[Seal] BRE PROPERTIES, INC.
Attest: By:
---------------------------- -----------------------
- -
Secretary President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated
therein referred to in the within-mentioned Indenture.
CHASE TRUST COMPANY OF CALIFORNIA, as Trustee
By:
------------------------------
Authorized Signatory
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT--_______ Custodian_______
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of Under Uniform Gifts to Minors
survivorship and not as Act__________________________
tenants in common (State)
Additional abbreviations may also be used though not in the above list.
--------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------
--------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
- -----------------------------------------------------------------------Attorney
to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated:
-------------------------------------------------------------------------
Notice: The signature to this assignment must correspond with the
name as it appears upon the face of the within Note in every particular,
without alteration or enlargement or any change whatever.
