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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): Commission File Number:
July 17, 1996 0-20707
COLONIAL REALTY LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
Delaware 63-1098468
(State or other jurisdiction (IRS Employer
of incorporation) Identification Number)
2101 Sixth Avenue North
Suite 750
Birmingham, Alabama 35202
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(205) 250-8700
Not applicable
(Former name or former address, if changed since last report)
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COLONIAL REALTY LIMITED PARTNERSHIP
Item 5 - Other Events
Attached as Exhibits to this form are the documents listed below:
<TABLE>
<CAPTION>
Exhibit Document
------- --------
<S> <C>
A Underwriting Agreement dated July 17, 1996, by
and among Colonial Realty Limited Partnership,
Colonial Properties Holding Company, Inc., Lehman
Brothers, Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Dean Witter Reynolds, Inc.
B Form of Officers' Certificate evidencing the terms
of the 7.50% Senior Notes due 2001 to be provided
to Bankers Trust Company (the "Trustee") pursuant
to Section 301 of the Indenture dated July 22,
1996 between Colonial Realty Limited Partnership
and Bankers Trust Company (the "Indenture"), with
the attached form of Note.
C Form of Officers' Certificate evidencing the terms
of the 8.05% Senior Notes due 2006 to be provided
to the Trustee pursuant to Section 301 of the
Indenture, with the attached form of Note.
D Form of Indenture dated as of July 22, 1996,
by and between Colonial Realty Limited
Partnership and Bankers Trust Company.
</TABLE>
-2-
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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.
COLONIAL REALTY LIMITED
PARTNERSHIP
By: Colonial Properties Holding
Company, Inc., its general partner
Date: July 19, 1996 By: /s/ Douglas B. Nunnelley
Douglas B. Nunnelley,
Senior Vice President and Chief
Financial Officer
-3-
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EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
A Underwriting Agreement dated July 17,
1996, by and among Colonial Realty
Limited Partnership, Colonial Properties
Holding Company, Inc., Lehman Brothers,
Inc., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Dean Witter Reynolds,
Inc
B Form of Officers' Certificate evidencing the terms
of the 7.50% Senior Notes due 2001 to be
provided to the Trustee pursuant to Section
301 of the Indenture, with the attached
form of Note
C Form of Officers' Certificate evidencing the terms
of the 8.05% Senior Notes due 2006 to be
provided to the Trustee pursuant to Section
301 of the Indenture, with the attached
form of Note
D Form of Indenture dated as of July 22, 1996, by and
between Colonial Realty Limited Partnership and
Bankers Trust Company
</TABLE>
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Exhibit A
---------
$130,000,000
COLONIAL REALTY LIMITED PARTNERSHIP
(a Delaware Limited Partnership)
$65,000,000 7.50% Senior Notes Due 2001
$65,000,000 8.05% Senior Notes Due 2006
UNDERWRITING AGREEMENT
----------------------
July 17, 1996
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
c/o LEHMAN BROTHERS INC.
3 World Financial Center
New York, New York 10285
Dear Ladies and Gentlemen:
Colonial Realty Limited Partnership, a limited partnership organized under
the laws of the State of Delaware (the "Company"), proposes to sell $65,000,000
aggregate principal amount of its 7.50% Senior Notes due 2001 (the "2001 Notes")
and $65,000,000 aggregate principal amount of its 8.05% Senior Notes due 2006
(the "2006 Notes" and, together with the 2001 Notes, the "Notes"), as further
described in Schedule I hereto, to the underwriters named in Schedule II hereto
(the "Underwriters"). This is to confirm the agreement concerning the purchase
of the Notes from the Company by the Underwriters.
1. Representations, Warranties and Agreements of the Company and CPHC.
The Company and a wholly owned subsidiary of Colonial Properties Trust, an
Alabama real estate investment trust ("Colonial"), Colonial Properties Holding
Company, Inc., an Alabama corporation and the general partner of the Company
("CPHC"), jointly and severally, represent, warrant and agree as follows:
(a) A shelf registration statement on Form S-3 (File No. 333-04301)
and amendments thereto to the date hereof with respect to up to
$250,000,000 of one or more series of debt securities ("Debt Securities")
of the Company has (i) been prepared by the Company and CPHC in conformity
with the requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder, (ii) been filed with the Commission under the Securities Act
and (iii)
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become effective under the Securities Act; and the indenture, to be dated
as of July 22, 1996 (the "Indenture"), between the Company and Bankers
Trust Company, as trustee (the "Trustee"), pursuant to which the Notes
shall be issued, has been qualified under the Trust Indenture Act of 1939
(the "Trust Indenture Act"). Copies of such registration statement have
been delivered by the Company and CPHC to the Underwriters. As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective Date"
means the date of the Effective Time; "Base Prospectus" means the
prospectus included in such registration statement, as amended on June 21,
1996, July 3, 1996 and July 5, 1996 and filed with the Commission pursuant
to Rule 424(b) on July 15, 1996 and as further amended and filed under Rule
424(b) at the time of the filing of the Prospectus Supplement; "Prospectus
Supplement" means each prospectus supplement accompanying the Base
Prospectus in connection with the offer and sale of the Notes, or
amendments or supplements thereto; the Base Prospectus and Prospectus
Supplement include any prospectus filed with the Commission by the Company
pursuant to Rule 424(a) or Rule 424(b) of the Rules and Regulations;
"Registration Statement" means such registration statement, as amended at
the Effective Time, including any documents incorporated by reference
therein at such time and all information contained in the Prospectus (as
defined below) filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations; and "Prospectus" means the final Base Prospectus and
Prospectus Supplement, as first filed with the Commission pursuant to Rule
424(b) of the Rules and Regulations. Reference made herein to any
Prospectus Supplement or to the Prospectus shall be deemed to refer to and
include any documents incorporated by reference therein pursuant to Item 12
of Form S-3 under the Securities Act, as of the date of such Prospectus
Supplement or the Prospectus, as the case may be, and any reference to any
amendment or supplement to any Prospectus Supplement or the Prospectus
shall be deemed to refer to and include any document filed under the
Securities Exchange Act of 1934 (the "Exchange Act") after the date of such
Prospectus Supplement or the Prospectus, as the case may be, and
incorporated by reference in such Prospectus Supplement or the Prospectus,
as the case may be; and any reference to any amendment to the Registration
Statement shall be deemed to include any report or document filed by or on
behalf of the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Prospectus. The Commission has not issued
any order preventing or suspending the use of any Base Prospectus,
Prospectus Supplement or Prospectus. Unless otherwise noted, all references
to properties or assets of the Company include, without limitation, the
properties described under the caption "Properties" in Amendment No. 3 to
the Company's Registration Statement on Form 10 pursuant to Section 12(g)
of the Exchange Act (the "Form 10/A") as filed with and declared effective
by the Commission on July 5, 1996 and in the Prospectus Supplement (such
properties being sometimes hereinafter referred to collectively as the
"Properties").
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<PAGE>
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the
Commission, as the case may be, conform in all respects to the requirements
of the Securities Act, the Rules and Regulations and the Trust Indenture
Act and the rules and regulations thereunder, and do not and will not, as
of the applicable Effective Date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) 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 not
misleading; provided, however, that no representation or warranty is made
as 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 or CPHC by or on behalf of the
Underwriters specifically for inclusion therein. The Company acknowledges
that the statements with respect to the public offering of the Notes set
forth on the cover page and back page of, and set forth under the caption
"Underwriting" in, the Prospectus constitute the only information relating
to the Underwriters furnished in writing to the Company by the Underwriters
specifically for inclusion in the Registration Statement. The Indenture
conforms in all material respects to the requirements of the Trust
Indenture Act and the rules and regulations thereunder, provided, however,
that no representation or warranty is made as to information contained in
or omitted from that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of Form T-1 under
the Trust Indenture Act of the Trustee under the Indenture.
(c) The documents incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all respects to the
requirements of the Securities Act or the Exchange Act, as applicable, and
the 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, when read together with the Prospectus, not
misleading; and any further documents so filed and incorporated by
reference in the Registration Statement, or any further amendment or
supplement thereto, and the Prospectus, or any further amendment or
supplement thereto, when such documents become effective or are filed with
the Commission, as the case may be, will conform in all material respects
to the requirements of the Securities Act or the Exchange Act, as
applicable, and the 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 not misleading.
(d) The Second Amended and Restated Agreement of Limited Partnership
of the Company (the "Agreement of Limited Partnership") has been duly and
validly authorized, executed and delivered by CPHC and by the limited
partners of the
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Company, including Colonial, and is a valid and binding agreement of CPHC
enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity). The Company has been duly
formed, is validly existing and is in good standing under the laws of the
State of Delaware, has the requisite power and authority to own, lease and
operate its Properties and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify or to be 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.
(e) CPHC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Alabama, is duly qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction (as indicated on Schedule III hereto) in which its ownership
or lease of property or the conduct of its business requires such
qualification and where the failure to be so qualified would have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company or CPHC,
and has the requisite power and authority necessary to own or hold its
properties and to conduct the business in which it is engaged.
(f) The only subsidiary (as defined in Rule 405 of the Rules and
Regulations) of the Company is Colonial Properties Services Limited
Partnership, a Delaware limited partnership (the "Subsidiary"). The
Subsidiary has been duly organized, is validly existing and is in good
standing as a partnership under the laws of Delaware, is duly qualified to
do business and is in good standing as a foreign entity in each
jurisdiction (as indicated on Schedule III hereto) in which the business
conducted by the Subsidiary requires such qualification and where the
failure to be so qualified would have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company or CPHC, and has the requisite
partnership power and authority necessary to hold its properties and
conduct the business in which it is engaged.
(g) All of the issued shares of capital stock of CPHC have been duly
and validly authorized and issued and are fully paid and non-assessable
and, except as set forth in the Prospectus, are owned directly or
indirectly by Colonial, free and clear of all liens, encumbrances, equities
or claims; all of the partnership interests of the Company and the
Subsidiary have been duly and validly authorized and issued, are fully paid
and, to the extent that such interests are owned by CPHC, are owned by
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CPHC free and clear of all liens, encumbrances, equities or claims. The
partnership interests of the Company conform in all material respects to
the description thereof contained in the Company's Form 10/A.
(h) The Notes have been duly authorized by the Company and, when duly
executed, authenticated, issued and delivered against payment as
contemplated hereby and by the Indenture shall be validly issued and
outstanding, and shall constitute valid and binding obligations on the part
of the Company, entitled to the benefits of the Indenture, and enforceable
against the Company in accordance with their terms, except to the extent
that enforcement thereof may be limited by (i) bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(i) The Indenture has been duly authorized, and when duly executed
and delivered by the Company (assuming due execution and delivery by the
Trustee), shall constitute a valid and binding agreement on the part of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by (i) applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity); the
Notes and the Indenture conform in all material respects to the
descriptions thereof contained in the Prospectus; and the Notes will be
entitled to the benefits provided by the Indenture.
(j) This Agreement has been duly authorized, executed and delivered
by the Company and CPHC and constitutes the valid and binding agreement of
the Company and CPHC, enforceable against the Company and CPHC in
accordance with its terms, except to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity); the execution, delivery and performance of this
Agreement by the Company and CPHC, the execution, delivery and performance
of the Indenture by the Company and the consummation of the transactions
contemplated herein and therein and the issuance and delivery of the Notes
were duly authorized by all necessary corporate or partnership action, as
the case may be, and did not and will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any of the Properties or any other properties or assets
of the Company, CPHC or the Subsidiary pursuant to any indenture, mortgage,
deed or trust, loan agreement or other agreement or instrument to which the
Company, CPHC or the
5
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Subsidiary is a party or by which the Company, CPHC or the Subsidiary is
bound or to which any of the property or assets of the Company, CPHC or the
Subsidiary is subject, except in any case where such conflict, breach,
violation or default would not result in a material adverse effect, nor did
or will such actions result in any violation of the provisions of the
charter, bylaws or partnership agreement of the Company, CPHC or the
Subsidiary or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company, CPHC or
the Subsidiary or any of their properties or assets; and except for the
registration of the Notes under the Securities Act and the qualification of
the Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state securities laws in connection with
the purchase and distribution of the Notes by the Underwriters, which have
already been obtained or made or will be obtained or made prior to closing
or which the failure to obtain would not result in a material adverse
effect, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body was or is
required for the execution, delivery and performance of this Agreement or
the Indenture by the Company, the consummation of the transactions
contemplated herein and therein, and the issuance and delivery of the
Notes.
(k) No event has occurred and is continuing that, had the Notes been
issued, would (whether or not with the giving of notice and/or the passage
of time and/or the fulfillment of any other requirement) constitute an
Event of Default (as defined in the Indenture) under the Indenture.
(l) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and/or CPHC, on the one
hand, and any person, on the other, granting such person the right to
require the Company, CPHC or the Subsidiary to file a registration
statement under the Securities Act with respect to any securities of the
Company, CPHC or the Subsidiary owned or to be owned by such person or to
require the Company or CPHC to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Company or CPHC under the Securities Act.
(m) Since the date of the latest audited financial statements
included or incorporated by reference in the Registration Statement or the
Prospectus, and except as set forth in the Prospectus, (i) there has been
no material adverse change in the financial condition, results of
operation, business affairs or business prospects of the Company, CPHC or
the Subsidiary, or any entity that owns any of the Properties, whether or
not arising in the ordinary course of business, (ii) no material casualty,
loss or material condemnation or other material adverse event with respect
to any Property has occurred, (iii) there have been no transactions or
acquisitions entered into by the
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Company, CPHC or the Subsidiary, other than those in the ordinary course of
business, which are material with respect to such entity, (iv) there has
been no dividend or distribution of any kind declared, paid or made by CPHC
on any class of its capital stock or by the Company with respect to its
partnership interests, and (v) there has been no change in the capital
stock of CPHC or the partnership interests of the Company, or any material
increase in the indebtedness of the Company, CPHC or the Subsidiary.
(n) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly the
financial condition and results of operations of the entities purported to
be shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved (except as
otherwise stated therein) and comply with the applicable accounting
requirements of the Securities Act (including, without limitation, Rule 3-
14 of Regulation S-X promulgated by the Commission), and all adjustments
necessary for a fair presentation of the results for such periods have been
made; the pro forma financial information included or incorporated by
reference in the Prospectus has been prepared in accordance with the
applicable requirements of the Securities Act, the Rules and Regulations
and AICPA guidelines with respect to pro forma financial information and
includes all adjustments necessary to present fairly the pro forma
financial position of the respective entity or entities presented therein
at the respective dates indicated and the results of their operations for
respective periods specified and the assumptions on which such pro forma
financial statements have been prepared are reasonable and are set forth in
the notes thereto.
(o) Coopers & Lybrand L.L.P., who have certified certain financial
statements of the Company and whose reports appear in the Prospectus or are
incorporated by reference therein and who have delivered the initial letter
referred to in Section 7(f) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations, and were
independent accountants as required by the Securities Act and the Rules and
Regulations during the periods covered by the financial statements on which
they reported; and there have been no disagreements with any accountants or
"reportable events" (as defined in Item 304 of Regulation S-K promulgated
by the Commission), in either case as required to be disclosed in the
Prospectus or elsewhere pursuant to such Item 304.
(p) The Company and the Subsidiary each have good and marketable
title in fee simple to all real property and good and marketable title to
all personal property owned by it, in each case free and clear of all
liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be
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made of such property by the Company or the Subsidiary; and any real
property and buildings held under lease by the Company are held by the
Company under valid, subsisting and enforceable leases in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the value
of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company.
(q) The Company and the Subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the
conduct of their respective businesses and the value of the Properties and
is customary for companies engaged in similar industries.
(r) The Company and the Subsidiary own, possess or can acquire on
reasonable terms adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service mark registrations, copyrights and licenses
necessary for the conduct of their respective businesses and do not believe
that the conduct of their respective businesses will conflict with, and
have not received any notice of any claim of conflict with, any such rights
of others.
(s) The mortgages and deeds of trust encumbering the Properties are
not convertible to equity interests; except as disclosed on Schedule IV
hereto, the mortgagees and beneficiaries thereof do not directly or
indirectly receive any interest based on the revenues or profits derived
from the Properties or hold any other participating interest therein; and
such mortgages and deeds of trust are not cross-defaulted with the
obligations of any party other than the Company or the Subsidiary and do
not require as collateral any property not owned or to be owned directly or
indirectly by the Company or the Subsidiary.
(t) The current and intended use and occupancy of each of the
Properties, and all improvements constituting a part thereof, comply with
all applicable building and other codes and zoning laws and regulations,
except for such failures to comply which would not, in the aggregate, have
a material adverse effect on the financial condition, the results of
operations or the business of the Company or the Subsidiary. There is no
pending or threatened condemnation, zoning change, environmental or other
proceeding or action that will in any material respect affect the size of,
use of, operation of, improvements on, construction on, or access to the
Properties, except such proceedings or actions that would not have a
material adverse effect on the financial condition, the results of
operations or the business of the Company or the Subsidiary. Each of the
Properties is in compliance with all licenses, permits, certificates,
franchises and other governmental authorizations or permits necessary to
the ownership by the Company, of its property and the conduct of its
business except for such failures to comply which would not, in the
aggregate, have a material adverse
8
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effect on the financial condition, the results of operations or the
business of the Company or the Subsidiary. To the extent that any of the
Properties is subject to restrictive covenants of record, such Property is
in compliance with such restrictive covenants in all material respects. All
water district assessments, property owner association assessments, annual
maintenance charges, and all other special assessments, charges and fees of
a similar nature due and payable prior to the date hereof have been fully
paid. Except as disclosed in the Prospectus, no tenant under any material
lease has an option or right of first refusal or similar right to purchase
the premises leased thereunder or any right to extend such lease or reduce
the rent payable thereunder. Each Property is served by all utilities
necessary for its use and operation as currently used and fronts on a
public road or right of way.
(u) Except as set forth in the Prospectus, there are no legal or
governmental actions, suits or proceedings pending to which the Company,
CPHC or the Subsidiary is a party or of which any property, assets or
business of the Company, CPHC or the Subsidiary is subject which, if
determined adversely to the Company, CPHC or the Subsidiary, might
reasonably be expected to have a material adverse effect on the financial
condition, the results of operations or the business of the Company, CPHC
or the Subsidiary; and to the best knowledge of the Company, CPHC or the
Subsidiary, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; all pending legal or
governmental proceedings to which the Company, CPHC or the Subsidiary is a
party or of which any property or assets of the Company, CPHC or the
Subsidiary is subject which are not described in the Prospectus, including
ordinary routine litigation incidental to the business, are, considered in
the aggregate, not material to the condition, financial or otherwise, or
the earnings, business affairs or business prospects of the Company, CPHC
or the Subsidiary.
(v) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(w) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated by reference therein.
(x) No relationship, direct or indirect, exists between or among the
Company, on the one hand, and CPHC, CPHC's directors or officers, and
customers or suppliers of the Company, on the other hand, which is required
to be described in the Prospectus and is not so described.
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(y) No labor disturbance by the employees of the Company, CPHC or the
Subsidiary exists or, to the knowledge of the Company or CPHC, is imminent
which might be expected to have a material adverse effect on the financial
condition, results of operations or business of the Company, CPHC or the
Subsidiary.
(z) The Company and CPHC are in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company or CPHC would have any liability; the Company
or CPHC have not incurred and do not expect to incur liability under (i)
Title IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company or
CPHC would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification.
(aa) The Company and CPHC have each filed all federal, state and local
income and franchise tax returns required to be filed through the date
hereof and have paid all taxes due thereon, and no tax deficiency has been
determined adversely to the Company, CPHC or the Subsidiary, which has had
(nor does the Company or CPHC have any knowledge of any tax deficiency
which, if determined adversely to the Company or CPHC might have) a
material adverse effect on the financial condition, results of operations
or business of the Company, CPHC or the Subsidiary.
(bb) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, neither the Company, CPHC nor the Subsidiary has (i) issued or
granted any securities, (ii) incurred any material liability or obligation,
direct or contingent, other than liabilities and obligations that were
incurred in the ordinary course of business, (iii) entered into any
transaction not in the ordinary course of business or (iv) declared or paid
any dividend or distribution on its capital stock or partnership interests,
as the case may be.
(cc) The Company and CPHC (i) make and keep accurate books and records
and (ii) maintain internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of their financial statements and to maintain
accountability for their assets, (C) access to their assets is permitted
only in accordance with management's authorization and (D) the reported
accountability for their assets is compared with existing assets at
reasonable intervals.
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(dd) Neither the Company, CPHC nor the Subsidiary is (i) in violation
of its respective partnership agreement, charter, bylaws or other similar
document, (ii) in default in any material respect, and no event has or will
have occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant
or condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties or assets is subject
and where such default would have a material adverse effect on the Company,
CPHC or the Subsidiary or (iii) in violation in any material respect of any
law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject, or has or will have failed to
obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business and where such violation or
failure would have a material adverse effect on the Company, CPHC or the
Subsidiary.
(ee) Each partnership agreement to which the Company or the Subsidiary
is a party has been duly authorized, executed and delivered by such
applicable party and constitutes the valid agreement thereof, enforceable
in accordance with its terms except to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether enforceability is considered in a proceeding
at law or in equity). The execution, delivery and performance of any of
such agreements did not, at the time of execution and delivery, and does
not constitute a breach of, or a default under, the partnership agreement
of the Company or the Subsidiary or any material contract, lease or other
instrument to which the Company is a party or to which any of its property
may be bound or any law, administrative regulation or administrative or
court decree.
(ff) Except as disclosed in the Prospectus or the Company's Form 10/A,
there has been no storage, disposal, generation, manufacture, refinement,
transportation, handling or treatment of toxic wastes, medical wastes,
hazardous wastes or hazardous substances by the Company, CPHC or the
Subsidiary or, to the Company's knowledge, any of their respective
predecessors in interests at, upon or from any of the Properties or any of
the properties now or previously owned or leased by the Company, CPHC, the
Subsidiary or any of their respective predecessors in interest in violation
of any applicable law, ordinance, rule, regulation, order, judgment, decree
or permit, or which would require remedial action, damages or the
modification or cessation of any activity of the Company, CPHC or the
Subsidiary under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit, except for any violation, remedial action,
damages, modification or cessation that will not result in, singularly or
in the aggregate with all such violations, remedial actions, damages,
modifications or cessations, a material adverse effect on the financial
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condition, general affairs or results of operations of the Company, CPHC or
the Subsidiary; there has been no material spill, discharge, leak,
emission, injection, escape, dumping, migration or release of any kind onto
such properties or into the environment surrounding such properties of any
toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company, CPHC or the Subsidiary with
respect to which the Company, CPHC or the Subsidiary has knowledge, except
for any such spill, discharge, leak, emission, injection, escape, dumping,
migration or release that would not result in or would not be reasonably
likely to result in, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings, migrations and
releases, a material adverse effect on the financial condition or results
of operations of the Company, CPHC or the Subsidiary; and the terms
"hazardous wastes," "toxic wastes," "hazardous substances" and "medical
wastes" shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(gg) Neither the Company, CPHC nor the Subsidiary, is or, after giving
effect to the issuance of the Notes and the application of the proceeds
therefrom, shall be, an "investment company" within the meaning of such
term under the Investment Company Act of 1940 and the rules and regulations
of the Commission thereunder.
(hh) The Company is classified as a partnership (and is not taxed as a
corporation) for federal income tax purposes. Colonial is organized and
operates, and will continue to operate, in a manner so as to qualify as a
"real estate investment trust" ("REIT") under Sections 856 through 860 of
the Code. Colonial's present and contemplated method of operation does and
will enable it to meet the requirements for taxation as a REIT and Colonial
has elected to be taxed as a REIT under the Code.
(ii) Neither the Company, CPHC nor the Subsidiary, nor any of their
respective directors, officers or controlling persons has taken, or will
take, directly or indirectly, any action prohibited by Rule 10b-6 under the
Exchange Act.
(jj) Neither the Company, CPHC nor the Subsidiary does any business
with any person or affiliate located in Cuba within the meaning of Florida
Rule 3E-900.001.
2. Purchase of the Notes by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the several
Underwriters, and each of the Underwriters, jointly and severally, agrees to
purchase from the Company, the respective principal amount of Notes set forth
opposite such Underwriter's name in Schedule II hereto at the purchase price set
forth in Schedule I hereto plus accrued interest, if any, from the date
specified in Schedule I hereto to the date of payment and delivery.
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3. Offering of Notes by the Underwriters. Upon authorization of the
Underwriters of the release of the Notes, the several Underwriters propose to
offer the Notes for sale upon the terms and conditions set forth in the
Prospectus.
4. Delivery of and Payment for the Notes. Delivery of and payment for
the Notes shall be made at such place as shall be determined by agreement
between the Underwriters and the Company at 10:00 A.M., New York City time, on
the third full business day following the date of this Agreement or on such
other date as shall be determined by agreement between the Underwriters and the
Company. This date and time are sometimes referred to as the "Delivery Date."
On the Delivery Date, the Company shall deliver or cause to be delivered
certificates representing the Notes to the Underwriters against payment to or
upon the order of the Company of the purchase price by certified or official
bank check or checks payable in New York Clearing House (next-day) funds or by
wire transfer of same-day funds. Time shall be of the essence, and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligation of each Underwriter hereunder. Upon delivery, the Notes shall
be registered in such names and in such denominations as the Underwriters shall
request in writing not less than two full business days prior to the Delivery
Date. For the purpose of expediting the checking and packaging of the
certificates for the Notes, the Company shall make the certificates representing
the Notes available for inspection by the Underwriters in New York, New York,
not later than 2:00 P.M., New York City time, on the business day prior to the
Delivery Date.
5. Further Agreements of the Company and CPHC. The Company and CPHC,
jointly and severally, agree:
(a) To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required under the Securities Act;
to make no further amendment or any supplement to the Registration
Statement or to the Prospectus prior to the Delivery Date except as
permitted herein; to advise the Underwriters promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Underwriters with copies thereof; to file on a timely basis all reports and
any definitive proxy or information statements required to be filed with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as
the delivery of a prospectus is required in connection with the offering or
sale of the Notes; to advise the Underwriters, promptly after receiving
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Prospectus Supplement or
the Prospectus, of the suspension of the qualification of the Notes for
offering or sale in any jurisdiction, of the initiation or threatening of
any
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proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the use of any
Prospectus Supplement or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to each of the Underwriters and to counsel
for the Underwriters a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall request: (i) conformed copies
of the Registration Statement as originally filed with the Commission and
each amendment thereto (in each case excluding exhibits other than this
Agreement), (ii) each Prospectus Supplement, the Prospectus and any amended
or supplemented Prospectus and (iii) any document incorporated by reference
in the Prospectus (excluding exhibits thereto); and, if the delivery of a
prospectus is required at any time after the Effective Time in connection
with the offering or sale of the Notes and if at such time any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary, in the opinion of counsel to the Underwriters during
such same period, to amend or supplement the Prospectus or to file under
the Exchange Act any document incorporated by reference in the Prospectus
in order to comply with the Securities Act or the Exchange Act, to notify
the Underwriters and, upon their request, to file such document and to
prepare and furnish without charge to each Underwriter and to any dealer in
securities as many copies as such Underwriter may from time to time
reasonably request of an amended or supplemented Prospectus which will
correct such statement or omission or effect such compliance, and in case
any Underwriter is required to deliver a Prospectus in connection with
sales of any of the Notes at any time nine months or more after the
Effective Time, upon the request of such Underwriter and at its own
expense, to prepare and deliver to such Underwriter as many copies as such
Underwriter may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Securities Act.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company, CPHC or the
Underwriters, be required by the Securities Act or requested by the
Commission.
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(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a
copy thereof to the Underwriters and counsel for the Underwriters and
obtain the consent of the Underwriters to the filing.
(f) As soon as practicable after the Effective Date, but in any event
not later than 45 days after the end of the Company's fiscal quarter in
which the first anniversary date of the Effective Date occurs, to make
generally available to the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the Company,
Rule 158).
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all reports and financial statements
furnished by the Company or CPHC to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder.
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and
sale under the securities laws of such jurisdictions as the Underwriters
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Notes, provided, however,
that in connection therewith, the Company shall not be obligated to qualify
as a foreign partnership or execute a general consent to service of process
in any such jurisdiction.
(i) Not to, on or prior to the Closing Date, offer for sale, sell,
distribute, contract to sell or otherwise dispose of, directly or
indirectly, any debt securities of the Company or to sell or grant options,
rights or warrants with respect to any debt securities of the Company,
without the prior written consent of Lehman Brothers Inc.
(j) To apply the net proceeds from the sale of the Notes being sold
by the Company as set forth in the Prospectus.
(k) To take such steps as shall be necessary to ensure that, after
giving effect to the issuance of the Notes and the application of the
proceeds therefrom, neither the Company, CPHC nor the Subsidiary shall
become an "investment company" or an entity "controlled" by an "investment
company" as such terms are defined under the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder.
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(l) To comply with all of the provisions of Florida H.B. 1771,
Section 1, (P)17,130 of the Florida Securities and Investors Act, and all
regulations thereunder relating to issuers doing business with Cuba.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Prospectus Supplement, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
cost of reproducing and distributing this Agreement; (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Notes; (f) any applicable
listing or other fees; (g) any applicable fees and expenses of qualifying the
Notes under the securities laws of the several jurisdictions as provided in
Section 5(h) and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (h) the
fees paid to rating agencies in connection with the rating of the Notes; and (i)
all other costs and expenses incident to the performance of the obligations of
the Company and CPHC under this Agreement; provided, however, that, except as
provided in this Section 6 and in Section 11, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Notes which they may sell and the expenses of advertising
any offering of the Notes made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective obligations
of the Underwriters hereunder are subject to the accuracy, when made and on the
Delivery Date, of the representations and warranties of the Company and CPHC
contained herein, to the performance by the Company and CPHC of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a); no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued
and no proceeding for that purpose shall have been initiated or threatened
by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have been advised by the Company or CPHC or
shall have discovered and disclosed to the Company or CPHC that the
Registration Statement or the Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
Goodwin, Procter & Hoar LLP, counsel for the Underwriters, is material or
omits to state a fact which, in the opinion
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of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate and partnership proceedings and other legal matters
incident to the authorization, form and validity of this Agreement, the
Indenture, the Notes, the Registration Statement and the Prospectus, and
all other legal matters and agreements relating to this Agreement, the
Indenture, the Notes, the Registration Statement and the Prospectus and the
transactions contemplated hereby and thereby shall be satisfactory in all
respects to counsel for the Underwriters, and the Company and CPHC shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Hogan & Hartson L.L.P. shall have furnished to the Underwriters
its written opinion, as counsel to the Company and CPHC addressed to the
Underwriters and dated the Delivery Date, in form and substance
satisfactory to the Underwriters, to the effect that:
(i) The Company, CPHC and the Subsidiary, have been duly
incorporated or formed, as the case may be, and are validly existing
and are in good standing as partnerships or corporations, as the case
may be (as indicated on Schedule III), under the laws of their
respective jurisdictions of incorporation or organization (as
indicated on Schedule III); the Company, CPHC and the Subsidiary are
duly qualified to do business and are in good standing as foreign
corporations or limited partnerships, as the case may be, in each
jurisdiction (as indicated on Schedule III) in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification and have all power and
authority necessary to own or hold their respective properties and
conduct the businesses in which they are engaged and where the failure
to be so qualified would have a material adverse effect on the
Company, CPHC or the Subsidiary; provided, however, that this opinion
shall not apply with respect to any states in which the Company, CPHC
or the Subsidiary are required to be qualified to do business solely
as a result of the sale of securities of the Company, CPHC or the
Subsidiary.
(ii) All of the issued shares of capital stock of CPHC have been
duly and validly authorized and issued and are fully paid, non-
assessable and, except as set forth in the Prospectus, are owned
directly or indirectly by Colonial, free and clear of all liens,
encumbrances, equities or claims; all of the partnership interests of
the Company and the Subsidiary have been duly and validly authorized
and issued, are fully paid and, to the extent that such interests are
owned by CPHC, are owned by CPHC free and clear of all liens,
encumbrances, equities or claims.
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(iii) Except as set forth in the Prospectus, to the knowledge of
such counsel there are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the transfer of the Notes
pursuant to the Company's certificate of limited partnership, the
partnership agreement, as amended, or any agreement or other
instrument to which the Company is a party.
(iv) The Registration Statement, Amendment No. 1, Amendment No.
2 and Amendment No. 3 to the Registration Statement and each post-
effective amendment thereto was declared effective under the
Securities Act and the Indenture was duly qualified under the Trust
Indenture Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations on the date specified in such opinion, and
to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the
Commission.
(v) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules and
other financial and statistical information and data included therein
or omitted therefrom, as to which such counsel need express no
opinion), when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
the Delivery Date (other than the financial statements and supporting
schedules and other financial and statistical information and data
included therein or omitted therefrom, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Securities Act, the Rules and Regulations and
the Trust Indenture Act and the rules and regulations thereunder, and
the Indenture conforms in all material respects to the requirements of
the Trust Indenture Act and the rules and regulations thereunder.
(vii) The Company is classified as a partnership (and is not
taxed as a corporation) for federal income tax purposes.
(viii)The statements contained in the Prospectus under the
captions "Description of Debt Securities" and "Description of the
Notes," insofar as they constitute summaries of legal matters,
documents or proceedings, constitute a fair summary thereof and the
opinion of such counsel filed as Exhibit 5 to the
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Registration Statement is confirmed and the Underwriters may rely upon
such opinion as if it were addressed to them.
(ix) This Agreement has been duly authorized, executed and
delivered by the Company and CPHC.
(x) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming due execution and delivery by
the Trustee) constitutes a valid and binding agreement on the part of
the Company, enforceable against the Company in accordance with its
terms, except as enforcement thereof may be limited by (i) applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); the Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the Prospectus.
(xi) The Notes have been duly authorized, executed, issued and
delivered by the Company, and constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except
to the extent enforcement thereof may be limited by (i) applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, or other similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xii) The issuance and delivery of the Notes by the Company and
the compliance by the Company and CPHC with all of the provisions of
this Agreement, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate or
partnership action, as the case may be, and did not and will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of
the Properties or assets of the Company, CPHC or the Subsidiary
pursuant to any of exhibits 10.1 through 10.8 to the Company's Form
10/A, nor did or will such actions result in any violation of the
provisions of the charter, bylaws or partnership agreement of the
Company, CPHC or the Subsidiary or any statute or any federal or State
of Delaware order, rule or regulation of any court or any federal or
State of Delaware governmental agency or body having jurisdiction over
the Company, CPHC or the Subsidiary or any of the Properties. Except
for the registration of the Notes under the Securities Act and the
qualification of the Indenture under the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the
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Exchange Act and applicable state or foreign securities laws (as to
which such counsel need express no opinion) in connection with the
purchase and distribution of the Notes by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body was
or is required for the execution, delivery and performance of this
Agreement or the Indenture by the Company and the consummation of the
transactions contemplated herein or therein, and the issuance and
delivery of the Notes.
(xiii)Except as described in the Prospectus, to such counsel's
knowledge, there are no contracts, agreements or understandings
between the Company and/or CPHC, on the one hand, and any person, on
the other, granting such person the right to require the Company, CPHC
or the Subsidiary to file a registration statement under the
Securities Act with respect to any securities of the Company, CPHC or
the Subsidiary owned or to be owned by such person or to require the
Company or CPHC to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company or CPHC under the Securities Act.
(xiv) Neither the Company, CPHC nor the Subsidiary is or, after
giving effect to the issuance of the Notes and the application of the
proceeds therefrom, shall be, an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
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Counsel to the Company shall also have furnished to the Underwriters a
written statement, addressed to the Underwriters and dated the Delivery
Date, in form and substance satisfactory to the Underwriters, to the effect
that during the preparation of the Registration Statement and Prospectus,
such counsel has participated in conferences with officers, employees and
other representatives of the Company, affiliated entities and
representatives of the independent public accountants and the Underwriters
and based on the foregoing, no facts have come to the attention of such
counsel which caused it to believe that (x) the Registration Statement, as
of the Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus, as of the Delivery Date, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading or (y) any document incorporated by reference in the
Prospectus or any further amendment or supplement to any such incorporated
document made by the Company prior to such Delivery Date, as of such
Delivery Date, contained, an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading
(provided that such counsel need not comment with respect to financial
statements or other financial or statistical data or opinions of other
counsel contained in the Registration Statement or Prospectus or the
Statement of Eligibility on Form T-1 of the Trustee).
(e) Goodwin, Procter & Hoar LLP shall have furnished to the
Underwriters its written opinion, as counsel to the Underwriters, addressed
to the Underwriters and dated the Delivery Date, in form and substance
satisfactory to the Underwriters. Goodwin, Procter & Hoar LLP shall also
have furnished to the Underwriters a written statement, addressed to the
Underwriters and dated the Delivery Date, in form and substance
satisfactory to the Underwriters, to the effect that no facts have come to
the attention of such counsel which lead it to believe that the Prospectus,
as of the Delivery Date and at the time such Prospectus was issued,
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading (provided that such counsel need not comment with
respect to financial statements or other financial or statistical data or
opinions of other counsel contained in the Registration Statement or
Prospectus or the Statement of Eligibility of Form T-1 of the Trustee).
(f) With respect to the letter of Coopers & Lybrand L.L.P. delivered
to the Underwriters concurrently with the execution of this Agreement (the
"initial letter"), the Company shall have furnished to the Underwriters a
letter (the "bring-down letter") of such accountants addressed to the
Underwriters and dated such Delivery Date (i) confirming that they are
independent public accountants within the meaning of the
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Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
or incorporated by reference in the Prospectus, as of a date not more than
five days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
(g) The Company and CPHC shall have furnished to the Underwriters a
certificate, dated the Delivery Date, of CPHC as general partner of the
Company and of the President or a Vice President and the chief financial
officer of CPHC, stating that:
(i) The representations, warranties and agreements of the
Company and CPHC in Section 1 are true and correct as of the Delivery
Date; the Company and CPHC have complied with all their agreements
contained herein; and the conditions set forth in Sections 7(a) and
7(h) have been fulfilled.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission.
(iii) All filings required by Rule 424(b) of the Rules and
Regulations have been made and all filings required under the Exchange
Act have been made in a timely manner.
(iv) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not contain any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and (B) since the Effective Date, no event has
occurred which should have been set forth in, but was omitted from, a
supplement or amendment to the Registration Statement or the
Prospectus or filing under the Exchange Act incorporated by reference
in the Prospectus.
(h)(i)Neither the Company, CPHC nor the Subsidiary shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or
interference with its business from fire, explosion, flood, earthquake or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
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<PAGE>
than as set forth or contemplated in the Prospectus, (ii) since such date
there shall not have been any change in the capital stock, partnership
interests or long-term debt of the Company, CPHC or the Subsidiary, or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial condition, results of operations
and business of the Company, CPHC or the Subsidiary, otherwise than as set
forth or contemplated in the Prospectus, or (iii) trading in the common
stock of Colonial has not been suspended by the Commission or the New York
Stock Exchange, the effect of which, in any such case described in clause
(i), (ii) or (iii), is, in the judgment of the Underwriters, so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Notes being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(i) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or minimum prices
shall have been established on either of such exchanges or such market by
the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of international
conditions on the financial markets in the United States shall be such) as,
in the case of clauses (i) through (iv), to make it, in the judgment of a
majority in interest of the several Underwriters, impractical or
inadvisable to proceed with the public offering or delivery of the Notes
being delivered on the Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(k) Sirote & Permutt P.C. shall have furnished to the Underwriters
their written opinion, as special real estate counsel to the Company,
addressed to the Underwriters and dated the Delivery Date, in form and
substance satisfactory to the Underwriters, to the effect that:
23
<PAGE>
(i) the issuance and sale of the Notes being delivered on the
Delivery Date by the Company and the compliance by the Company and
CPHC with all the provisions of this Agreement and the consummation of
the transactions contemplated hereby did not and will not result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any of the Properties or any
other properties or assets of the Company or the Subsidiary pursuant
to any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
the Subsidiary is a party or by which the Company or the Subsidiary is
bound or to which any of the Properties is subject; and
(ii) such counsel has reviewed certain portions of the
Registration Statement and Prospectus at the direction of the
Underwriters and such counsel has participated in conferences with
officers, employees and other representatives of the Company and
affiliated entities and has represented the Company and affiliated
entities in connection with the acquisition and financing of certain
properties described in the Registration Statement and Prospectus, and
based on the foregoing, no facts have come to the attention of such
counsel which caused it to believe that the Registration Statement, as
of the Effective Date, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not misleading,
or that the Prospectus, as of the Delivery Date, contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, not misleading
(provided that such counsel need not comment with respect to financial
statements or other financial or statistical data or opinions of other
counsel contained in the Registration Statement or Prospectus).
All opinions and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if
they are in form and substance reasonably satisfactory to counsel for the
Underwriters. The Company shall furnish to you conformed copies of such
opinions, certificates, letters and other documents in such number as you shall
reasonably request. If any of the conditions specified in this Section 7 shall
not have been fulfilled when and as required by this Agreement, the Agreement
and all obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Delivery Date, by you. Any such cancellation shall be
without liability of the Underwriters to the Company or CPHC. Notice of such
cancellation shall be given to the Company in writing, or by telegraph or
telephone and confirmed in writing.
24
<PAGE>
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not
limited to, any loss, claim, damage, liability or action relating to
purchases and sales of the Notes) to which that Underwriter or any such
controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus Supplement, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter and
each such controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in the Registration
Statement, any Prospectus Supplement or the Prospectus or in any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for inclusion therein. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or to any controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, CPHC, each of CPHC's directors, each of CPHC's
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company, CPHC or any such director,
officer or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, any
Prospectus Supplement or the Prospectus or in any amendment or supplement
thereto or (ii) the 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 in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company, CPHC
and any such director,
25
<PAGE>
officer or controlling person for any legal or other expenses reasonably
incurred by the Company, CPHC or any such director, officer or controlling
person in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses
are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company, CPHC or
any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 except to the extent
it has been materially prejudiced by such failure and, provided further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Underwriters shall have the right to employ counsel to
represent jointly the Underwriters and their respective controlling persons
who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Underwriters against the Company under
this Section 8 if, in the reasonable judgment of the Underwriters, it is
advisable for the Underwriters and those controlling persons to be jointly
represented by separate counsel, and in that event the fees and expenses of
such separate counsel shall be paid by the Company.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnifying party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law or if the indemnified party failed to give the notice
26
<PAGE>
required under Section 8(c), 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 Company on the one hand and the Underwriters
on the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, 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
with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes purchased under
this Agreement (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters with respect to the Notes purchased under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 8(d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 8(d) shall be deemed to include,
for purposes of this Section 8(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigation or
defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid
or become liable to pay by reason of any 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 Securities
Act) shall be entitled to contribute from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in Section 8(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm that the statements with
respect to the public offering of the Notes set forth on the cover page of,
and under the caption "Underwriting" in, the Prospectus are correct and
constitute the only information furnished in writing to the Company by or
on behalf of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
27
<PAGE>
9. Defaulting Underwriters. If, on the Delivery Date, any Underwriter
defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated to purchase the
principal amount of Notes which the defaulting Underwriter agreed but failed to
purchase on the Delivery Date in the respective proportions which the principal
amount of the Notes set opposite the name of each remaining non-defaulting
Underwriter in Schedule II hereto bears to the aggregate principal amount of the
Notes set opposite the names of all the remaining non-defaulting Underwriters in
Schedule II hereto; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any Notes on the Delivery Date
if the principal amount of the Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
aggregate principal amount of the Notes to be purchased on the Delivery Date,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the principal amount of the Notes which it agreed to purchase
on the Delivery Date pursuant to the terms of Section 2. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the non-defaulting Underwriters who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Notes to be purchased on the Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the
remaining Underwriters do not elect to purchase the principal amount of the
Notes which the defaulting Underwriter or Underwriters agreed but failed to
purchase on the Delivery Date, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Company or CPHC, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Sections 6, 8 and 11. As used in this Agreement, the term
"Underwriter" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule II hereto who, pursuant to
this Section 9, purchases Notes which a defaulting Underwriter agreed but failed
to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other Underwriters are obligated or agree to purchase the Notes of a defaulting
or withdrawing Underwriter, either the Underwriters or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Underwriters by notice given to and received by the Company
prior to delivery of and payment for the Notes if, prior to that time, any of
the events described in Sections 7(h) or 7(i) shall have occurred or if the
Underwriters shall decline to purchase the Notes for any reason permitted under
this Agreement.
28
<PAGE>
11. Reimbursement of Underwriters' Expenses. If (a) the Company shall
fail to tender the Notes for delivery to the Underwriters for any reason
permitted under this Agreement or (b) the Underwriters shall decline to purchase
the Notes for any reason permitted under this Agreement (including the
termination of this Agreement pursuant to Section 10), the Company or CPHC shall
reimburse the Underwriters for the fees and expenses of their counsel and for
such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of the Notes, and upon
demand the Company or CPHC shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by reason
of the default of one or more Underwriters, neither the Company nor CPHC shall
be obligated to reimburse any defaulting Underwriter on account of those
expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to Lehman Brothers Inc., 3 World Financial
Center, New York, New York 10285, Attention: Syndicate Registration
Department (FAX: 212-528-8822);
(b) if to the Company or CPHC, shall be delivered or sent by mail,
telex or facsimile transmission to the Company at Energen Plaza, 2101 6th
Avenue North, Suite 750, Birmingham, Alabama 35203, Attention: Chief
Financial Officer (FAX: 205-250-8890).
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Company and CPHC shall be entitled to act and
rely upon any statement, request, notice or agreement given or made on behalf of
the Underwriters by Lehman Brothers Inc.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the Company and CPHC.
This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that (a) the representations, warranties, indemnities
and agreements of the Company and CPHC contained in this Agreement shall also be
deemed to be for the benefit of the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (b) the
indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of the Company, CPHC, the
directors of CPHC, officers of CPHC who have signed the Registration Statement
and any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
29
<PAGE>
14. Survival. The respective indemnities, representations, warranties and
agreements of the Company, CPHC and the Underwriters contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Notes and shall remain in full force
and effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
15. Definition of the Terms "business day" and "subsidiary." For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations and, when used in reference to
subsidiaries of the Company, includes the entities listed on Schedule III.
16. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
* * * * *
<PAGE>
If the foregoing correctly sets forth the agreement among the Company, CPHC
and the Underwriters, please indicate your acceptance in the space provided for
that purpose below.
Very truly yours,
COLONIAL REALTY LIMITED
PARTNERSHIP
By: Colonial Properties Holding
Company, Inc., its General Partner
By: /s/ Douglas B. Nunnelley
-------------------------------
Douglas B. Nunnelley
Senior Vice President and
Chief Financial Officer
COLONIAL PROPERTIES HOLDING
COMPANY, INC.
By: /s/ Douglas B. Nunnelley
-------------------------------
Douglas B. Nunnelley
Senior Vice President and
Chief Financial Officer
Accepted:
LEHMAN BROTHERS INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
DEAN WITTER REYNOLDS INC.
By: LEHMAN BROTHERS INC.
By: /s/ Michael W. Reid
-----------------------------
Michael W. Reid
Senior Vice President
<PAGE>
SCHEDULE I
<TABLE>
<S> <C>
7.50% Senior Notes Due 2001
- ---------------------------
Principal Amount: $65,000,000.00
Coupon: 7.50%
Settlement Date: July 22, 1996
Price to Public: 99.756%
Price to Public: $64,841,400.00
Underwriting Discount: 0.625%
Underwriting Discount: $406,250.00
Price to Underwriter: 99.131%
Proceeds to the Company: $64,435,150.00
Maturity Date: July 15, 2001
8.05% Senior Notes Due 2006
- ---------------------------
Principal Amount: $65,000,000.00
Coupon: 8.05%
Settlement Date: July 22, 1996
Price to Public: 99.537%
Price to Public: $64,699,050.00
Underwriting Discount: 0.675%
Underwriting Discount: $438,750.00
Price to Underwriter: 98.862%
Proceeds to the Company: $64,260,300.00
Maturity Date: July 15, 2006
2001 Notes and 2006 Notes
- -------------------------
Total Price to Public: $129,540,450.00
Total Underwriting Discount: $845,000.00
Total Proceeds to the Company: $128,695,450.00
</TABLE>
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal Principal
Amount of Amount of
Underwriters 2001 Notes 2006 Notes
---------- ----------
<S> <C> <C>
Lehman Brothers Inc. ........................... $35,750,000.00 $35,750,000.00
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................... 22,750,000.00 22,750,000.00
Dean Witter Reynolds Inc. ...................... 6,500,000.00 6,500,000.00
------------ ------------
Total........................................ $65,000,000.00 $65,000,000.00
============= =============
</TABLE>
<PAGE>
SCHEDULE III
<TABLE>
<CAPTION>
Jurisdiction of Jurisdiction of
Type of Entity Organization Qualification
-------------- ------------ -------------
<S> <C> <C> <C>
1. Colonial Realty Limited Limited Partnership Delaware Alabama
Partnership (the
"Company") Georgia
Florida
2. Colonial Properties Corporation Alabama Georgia
Holding Company, Inc. Florida
("CPHC")
3. Colonial Properties Limited Partnership Delaware Alabama
Services Limited Georgia
Partnership (the
"Subsidiary") Florida
</TABLE>
<PAGE>
SCHEDULE IV
PARTICIPATING MORTGAGES
-----------------------
<PAGE>
Exhibit B
---------
OFFICERS' CERTIFICATE
We, Howard B. Nelson, Jr., Senior Vice President, Chief Operating Officer
and Assistant Secretary, and Douglas B. Nunnelley, Senior Vice President-
Finance, Chief Financial Officer and Assistant Secretary of Colonial Properties
Holding Company, Inc., the General Partner (the "General Partner") of Colonial
Realty Limited Partnership (the "Operating Partnership"), pursuant to Section
301 of the Indenture dated as of July 22, 1996 between the Operating Partnership
and Bankers Trust Company, as Trustee (the "Indenture"), hereby certify that a
series of Securities with the following terms has been established by a Board
Resolution and has been denominated 7.50% Senior Notes due 2001 (the "Notes"),
and we further certify as follows with respect to the Notes (unless otherwise
defined herein, capitalized terms shall have the meanings set forth in the
Indenture):
1. the title of the Notes shall be "7.50% Senior Notes due 2001." The
Notes constitute a series of Securities as defined in the Indenture.
The Notes shall be issuable as Registered Securities in permanent
global form only in denominations of $1,000 or any integral multiple
thereof;
2. the maximum aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture shall be
$65,000,000.00 (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of other
Notes pursuant to Section 304, 305, 306, 906, 1107 or 1305 of the
Indenture);
3. the principal amount of the Notes shall be payable on July 15, 2001,
subject to the provisions of the Indenture and the Notes;
4. interest will accrue from July 22, 1996. The Notes will bear interest
at 7.50% per annum, payable in the manner and on the dates set forth
in the attached form of Notes;
5. the Corporate Trust Office of Bankers Trust Company is appointed the
principal paying agent, transfer agent, and registrar for the Notes
and for the purpose mentioned in Section 1002 of the Indenture. The
Notes may be presented for payment at maturity or redemption at such
Corporate Trust Office, or at any other agency as may be appointed by
the Issuer from time to time in The City of New York;
6. the provisions of Sections 1402 and 1403 of the Indenture with regard
to defeasance and discharge and covenant defeasance,
<PAGE>
respectively, shall be applicable to the Notes without modification;
7. the Notes may be redeemed at any time at the option of the Operating
Partnership, in such manner and upon the terms set forth in the
attached form of Notes and the Indenture;
8. the Notes will be represented by one or more Global Notes as described
under the caption "Description of the Notes--Book Entry System" in the
Operating Partnership's Prospectus Supplement dated July 18, 1996 with
respect to the offering of the Notes (the "Prospectus Supplement")
(except that, in certain limited circumstances, the Operating
Partnership may issue Notes in definitive form to owners of beneficial
interests in a Global Note, as described in the above-referenced
section of the Prospectus Supplement);
9. the Notes shall have such other terms and conditions as are set forth
in the form of the Notes. The Notes shall be subject to the
provisions of the Indenture; and
10. the attached form of the Notes is in the form approved pursuant to
authority granted by the Board of Directors.
2
<PAGE>
This Certificate is delivered pursuant to the provisions of Sections 201,
301, and 303 of the Indenture. The undersigned hereby certify as follows:
(a) we have read each of the Sections of the Indenture referred to
above;
(b) we have examined the Indenture, the form of Notes and such other
documents, records, and instruments as we have deemed necessary
for purposes of giving this certificate;
(c) to the best of our knowledge, no Event of Default with respect to
the Notes has occurred and is continuing;
(d) in our opinion, we have made such examination and investigation
as is necessary to enable us to express an informed opinion as to
whether the conditions precedent to the issuance of the Notes
have been complied with; and
(e) in our opinion, the conditions precedent to the issuance of the
Notes have been complied with.
Dated: July 22, 1996 Colonial Realty Limited Partnership
by: Colonial Properties Holding
Company, Inc.
by:
--------------------------------
Howard B. Nelson, Jr.
Senior Vice President,
Chief Operating Officer and
Assistant Secretary
by:
--------------------------------
Douglas B. Nunnelley
Senior Vice President - Finance,
Chief Financial Officer and
Assistant Secretary
3
<PAGE>
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
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.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
REGISTERED REGISTERED
No. 001 Principal Amount
CUSIP No. 195891 AA 4 $65,000,000.00
COLONIAL REALTY LIMITED PARTNERSHIP
7.50% Senior Notes due 2001
Colonial Realty Limited Partnership, a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, upon presentation, the principal sum of Sixty-Five Million
Dollars ($65,000,000.00) on July 15, 2001, and to pay interest thereon from July
22, 1996 (or from the most recent Interest Payment Date to which interest has
been paid or duly provided for), semi-annually in arrears on January 15 and July
15 of each year, commencing on January 15, 1997, and at Maturity, at a rate of
interest of 7.50% per annum, until payment of said principal sum has been made
or duly provided for. Any capitalized term not defined herein shall have the
meaning assigned to it in that certain Indenture by and among the Issuer and
Bankers Trust Company, a New York banking corporation, dated as of July 22,
1996.
<PAGE>
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date and at Maturity will be paid to the Holder in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date for such payment, which will be 15 calendar
days (regardless of whether such day is a Business Day) next preceding such
Interest Payment Date or Maturity, as the case may be. Any interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Holder in
whose name this Note (or one or more predecessor Notes) 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 Holders of
Notes of this series not less than ten (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 or which the Notes of this
series may be listed, and upon such notice as may be required by such exchange,
as more fully provided in the Indenture.
The principal and Make-Whole Amount, if any, of this Note payable at
Maturity will be paid against presentation and surrender of this Note at the
office or agency of the Issuer maintained for that purpose in The Borough of
Manhattan, The City of New York. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee in The City of New York as the office to
be maintained by it where Notes may be presented for payment, registration of
transfer or exchange and where notices or demands to or upon the Issuer in
respect of the Notes or the Indenture may be served.
Interest payable on this Note will be computed on the basis of a 360-day
year consisting of twelve 30-day months. If any Interest Payment Date or
Maturity would otherwise be a day that is not a Business Day, the required
payment will be made on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
Notes of this series may be redeemed at any time at the option of the
Issuer, in whole or in part, upon notice to the Holders of not more than 60 nor
less than 30 days prior to the Redemption Date, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes.
Payments of principal, Make-Whole Amounts, if any, and interest in respect
of this Note will be made by wire transfer of immediately available funds, in
such coin or currency as at the time of payment is legal tender for the payment
of public and private debts, so long as this Note is in global form as described
in Section 203 of the Indenture. If this Note is not in global form, all such
payments will be made by wire transfer of immediately available funds if the
Holder hereof at the applicable record date shall have provided wire transfer
instructions to the Trustee, received by the
2
<PAGE>
Trustee no later than fifteen (15) days prior to the applicable payment date,
and otherwise payment shall be made in accordance with Section 307 of the
Indenture. Such wire transfer instructions shall remain in effect until revoked
in a writing received by the Trustee from the Holder hereof.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE
REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to the benefits of the Indenture referred
to on the reverse hereof or be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under such Indenture.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.
Dated: July 22, 1996 COLONIAL REALTY LIMITED PARTNERSHIP, as
Issuer
By: COLONIAL PROPERTIES HOLDING
COMPANY, INC., not individually but as
General Partner
By:
--------------------------------------------
Howard B. Nelson, Jr.
Senior Vice President, Chief Operating
Officer and Assistant Secretary
By:
-------------------------------------------
Douglas B. Nunnelley
Senior Vice President - Finance,
Chief Financial Officer and Assistant
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated: BANKERS TRUST COMPANY, as Trustee
--------------------
By:
---------------------------------------------
Authorized Signatory
4
<PAGE>
[FORM OF REVERSE OF NOTE]
COLONIAL REALTY LIMITED PARTNERSHIP
7.50% Senior Notes due 2001
This security is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under an Indenture dated as of July 22, 1996 (the "Indenture"), between the
Issuer and Bankers Trust Company, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), and may otherwise vary provided in
the Indenture. This Security is one of a series designated on the first page
hereof, limited in aggregate principal amount to $65,000,000.00.
In case an Event of Default with respect to Securities of this series
shall have occurred and be continuing, the principal of, and premium or Make-
Whole Amount, if any, may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect, and subject to the conditions
provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless (i) such Holder shall have previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Outstanding Securities of this series, (ii) the Holders of not
less than 25% in principal amount of the Outstanding Securities of this 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, (iii) such Holder
or Holders have offered reasonable indemnity to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceeding for 60 days after
its receipt of such notice, request and offer of indemnity and (v) the Trustee
shall not have received from the Holders of a majority in principal amount of
Outstanding Securities of this series a direction inconsistent with such
request.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the
5
<PAGE>
Indenture at any time by the Issuer and the Trustee with the consent of the
Holders of not less than a majority in principal amount of the Securities of
each series at the time Outstanding affected thereby. The Indenture also
contains provisions permitting the Holders of at least a majority in principal
amount of the Securities of such series Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holders of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium or Make-Whole
Amount, if any, and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of,
premium or Make-Whole Amount, if any, on, and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities of this series, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. In no event shall the Issuer be required to pay any
Additional Amounts as contemplated by the Indenture.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee, and any authorized agent of the Issuer or the
Trustee may treat the Person in whose name this Security is registered as the
absolute owner of this Security (whether or not this Security shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on
6
<PAGE>
account of, the principal hereof and premium, if any, and subject to the
provisions on the face hereof, interest hereon, and for all other purposes, and
none of the Issuer, the Trustee or any authorized agent of the Issuer or the
Trustee shall be affected by any notice to the contrary.
Notwithstanding anything contained herein or in the Indenture to the
contrary, no recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced thereby (including without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on this Security), or for any
claim based thereon or otherwise in respect thereof, shall be had (i) against
CPHC or any other partner in the Issuer, (ii) against Colonial or any other
person which owns an interest, directly or indirectly, in any partner in the
Issuer or (iii) against any promoter, as such, or against any past, present or
future stockholder, partner, officer or director, as such, of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provisions or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Security
by the Holder thereof and as part of the consideration for the issue of the
Securities of this series. The Holder of this Security acknowledges by
acceptance of this Security that its sole remedies under the Indenture for any
Default by the Issuer in the payment of the principal of, or any premium or
Make-Whole Amount, if any, interest or any amounts due, or claimed to be due, on
this Security, or otherwise, are limited to claims against the property of the
Issuer as provided in Section 503 of the Indenture.
THE INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY
MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Terms used herein that are defined in the Indenture
shall have the respective meanings assigned them in the Indenture.
7
<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 COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties ______Custodian ________
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to
tenants in common Act _____________
State
Additional abbreviations may also be used though not in the above list.
________________________________________
Social Security or taxpayer I.D. or other identifying number of assignee.
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
________________________________________________________________________________
(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 kept for
registration thereof, with full power of substitution in the premises.
Dated:_____________
_______________________________
<PAGE>
EXHIBIT C
OFFICERS' CERTIFICATE
We, Howard B. Nelson, Jr., Senior Vice President, Chief Operating
Officer and Assistant Secretary, and Douglas B. Nunnelley, Senior Vice
President - Finance, Chief Financial Officer and Assistant Secretary of Colonial
Properties Holding Company, Inc., the General Partner (the "General Partner") of
Colonial Realty Limited Partnership (the "Operating Partnership"), pursuant to
Section 301 of the Indenture dated as of July 22, 1996 between the Operating
Partnership and Bankers Trust Company, as Trustee (the "Indenture"), hereby
certify that a series of Securities with the following terms has been
established by a Board Resolution and has been denominated 8.05% Senior Notes
due 2006 (the "Notes"), and we further certify as follows with respect to the
Notes (unless otherwise defined herein, capitalized terms shall have the
meanings set forth in the Indenture):
1. the title of the Notes shall be "8.05% Senior Notes due 2006." The
Notes constitute a series of Securities as defined in the Indenture.
The Notes shall be issuable as Registered Securities in permanent
global form only in denominations of $1,000 or any integral multiple
thereof;
2. the maximum aggregate principal amount of Notes that may be
authenticated and delivered under the Indenture shall be
$65,000,000.00 (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of other
Notes pursuant to Section 304, 305, 306, 906, 1107 or 1305 of the
Indenture);
3. the principal amount of the Notes shall be payable on July 15, 2006,
subject to the provisions of the Indenture and the Notes;
4. interest will accrue from July 22, 1996. The Notes will bear interest
at 8.05% per annum, payable in the manner and on the dates set forth
in the attached form of Notes;
5. the Corporate Trust Office of Bankers Trust Company is appointed the
principal paying agent, transfer agent, and registrar for the Notes
and for the purpose mentioned in Section 1002 of the Indenture. The
Notes may be presented for payment at maturity or redemption at such
Corporate Trust Office, or at any other agency as may be appointed by
the Issuer from time to time in The City of New York;
6. the provisions of Sections 1402 and 1403 of the Indenture with regard
to defeasance and discharge and covenant defeasance,
<PAGE>
respectively, shall be applicable to the Notes without modification;
7. the Notes may be redeemed at any time at the option of the Operating
Partnership, in such manner and upon the terms set forth in the
attached form of Notes and the Indenture;
8. the Notes will be represented by one or more Global Notes as described
under the caption "Description of the Notes--Book Entry System" in the
Operating Partnership's Prospectus Supplement dated July 18, 1996 with
respect to the offering of the Notes (the "Prospectus Supplement")
(except that, in certain limited circumstances, the Operating
Partnership may issue Notes in definitive form to owners of beneficial
interests in a Global Note, as described in the above-referenced
section of the Prospectus Supplement);
9. the Notes shall have such other terms and conditions as are set forth
in the form of the Notes. The Notes shall be subject to the
provisions of the Indenture; and
10. the attached form of the Notes is in the form approved pursuant to
authority granted by the Board of Directors.
2
<PAGE>
This Certificate is delivered pursuant to the provisions of Sections 201,
301, and 303 of the Indenture. The undersigned hereby certify as follows:
(a) we have read each of the Sections of the Indenture referred to
above;
(b) we have examined the Indenture, the form of Notes and such other
documents, records, and instruments as we have deemed necessary
for purposes of giving this certificate;
(c) to the best of our knowledge, no Event of Default with respect to
the Notes has occurred and is continuing;
(d) in our opinion, we have made such examination and investigation
as is necessary to enable us to express an informed opinion as to
whether the conditions precedent to the issuance of the Notes
have been complied with; and
(e) in our opinion, the conditions precedent to the issuance of the
Notes have been complied with.
Dated: July 22, 1996 Colonial Realty Limited Partnership
by: Colonial Properties Holding
Company, Inc.
by:
-------------------------
Howard B. Nelson, Jr.
Senior Vice President,
Chief Operating Officer and
Assistant Secretary
by:
------------------------
Douglas B. Nunnelley
Senior Vice President - Finance,
Chief Financial Officer and
Assistant Secretary
3
<PAGE>
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
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.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
NOTES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER
NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE
OF SUCH SUCCESSOR.
REGISTERED REGISTERED
No. 001 Principal Amount
CUSIP No. 195891 AB 2 $65,000,000.00
COLONIAL REALTY LIMITED PARTNERSHIP
8.05% Senior Notes due 2006
Colonial Realty Limited Partnership, a Delaware limited partnership (the
"Issuer," which term includes any successor under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co. or
registered assigns, upon presentation, the principal sum of Sixty-Five Million
Dollars ($65,000,000.00) on July 15, 2006, and to pay interest thereon from July
22, 1996 (or from the most recent Interest Payment Date to which interest has
been paid or duly provided for), semi-annually in arrears on January 15 and July
15 of each year, commencing on January 15, 1997, and at Maturity, at a rate of
interest of 8.05% per annum, until payment of said principal sum has been made
or duly provided for. Any capitalized term not defined herein shall have the
meaning assigned to it in that certain Indenture by and among the Issuer and
Bankers Trust Company, a New York banking corporation, dated as of July 22,
1996.
<PAGE>
The interest so payable and punctually paid or duly provided for on an
Interest Payment Date and at Maturity will be paid to the Holder in whose name
this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date for such payment, which will be 15 calendar
days (regardless of whether such day is a Business Day) next preceding such
Interest Payment Date or Maturity, as the case may be. Any interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Holder in
whose name this Note (or one or more predecessor Notes) 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 Holders of
Notes of this series not less than ten (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 or which the Notes of this
series may be listed, and upon such notice as may be required by such exchange,
as more fully provided in the Indenture.
The principal and Make-Whole Amount, if any, of this Note payable at
Maturity will be paid against presentation and surrender of this Note at the
office or agency of the Issuer maintained for that purpose in The Borough of
Manhattan, The City of New York. The Issuer hereby initially designates the
Corporate Trust Office of the Trustee in The City of New York as the office to
be maintained by it where Notes may be presented for payment, registration of
transfer or exchange and where notices or demands to or upon the Issuer in
respect of the Notes or the Indenture may be served.
Interest payable on this Note will be computed on the basis of a 360-day
year consisting of twelve 30-day months. If any Interest Payment Date or
Maturity would otherwise be a day that is not a Business Day, the required
payment will be made on the next succeeding Business Day with the same force and
effect as if it were paid on the date such payment was due, and no interest will
accrue on the amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
Notes of this series may be redeemed at any time at the option of the
Issuer, in whole or in part, upon notice to the holders of not more than 60 nor
less than 30 days prior to the Redemption Date, at a redemption price equal to
the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes.
Payments of principal, Make-Whole Amounts, if any, and interest in respect
of this Note will be made by wire transfer of immediately available funds, in
such coin or currency as at the time of payment is legal tender for the payment
of public and private debts, so long as this Note is in global form as described
in Section 203 of the Indenture. If this Note is not in global form, all such
payments will be made by wire transfer of immediately available funds if the
Holder hereof at the applicable record date shall have provided wire transfer
instructions to the Trustee, received by the
2
<PAGE>
Trustee no later than fifteen (15) days prior to the applicable payment date,
and otherwise payment shall be made in accordance with Section 307 of the
Indenture. Such wire transfer instructions shall remain in effect until revoked
in a writing received by the Trustee from the Holder hereof.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE
REVERSE HEREOF. SUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Note shall not be entitled to the benefits of the Indenture referred
to on the reverse hereof or be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been signed by the Trustee
under such Indenture.
3
<PAGE>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or by facsimile by its duly authorized officers.
Dated: July 22, 1996 COLONIAL REALTY LIMITED PARTNERSHIP, as
Issuer
By: COLONIAL PROPERTIES HOLDING
COMPANY, INC., not individually but as
General Partner
By:
-------------------------
Howard B. Nelson, Jr.
Senior Vice President, Chief Operating Officer
and Assistant Secretary
and By:
------------------------
Douglas B. Nunnelley
Senior Vice President - Finance,
Chief Financial Officer and Assistant Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
Dated: BANKERS TRUST COMPANY, as Trustee
___________________________________
By:
_________________________________________
Authorized Signatory
4
<PAGE>
[FORM OF REVERSE OF NOTE]
COLONIAL REALTY LIMITED PARTNERSHIP
8.05% Senior Notes due 2006
This security is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Issuer (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under an Indenture dated as of July 22, 1996 (the "Indenture"), between the
Issuer and Bankers Trust Company, as Trustee (herein called the "Trustee," which
term includes any successor trustee under the Indenture with respect to the
series of Securities of which this Note is a part), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Issuer and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), and may otherwise vary provided in
the Indenture. This Security is one of a series designated on the first page
hereof, limited in aggregate principal amount to $65,000,000.00.
In case an Event of Default with respect to Securities of this series
shall have occurred and be continuing, the principal of, and premium or Make-
Whole Amount, if any, may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect, and subject to the conditions
provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless (i) such Holder shall have previously
given written notice to the Trustee of a continuing Event of Default with
respect to the Outstanding Securities of this series, (ii) the Holders of not
less than 25% in principal amount of the Outstanding Securities of this 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, (iii) such Holder
or Holders have offered reasonable indemnity to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request, (iv)
the Trustee shall have failed to institute any such proceeding for 60 days after
its receipt of such notice, request and offer of indemnity and (v) the Trustee
shall not have received from the Holders of a majority in principal amount of
Outstanding Securities of this series a direction inconsistent with such
request.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the
5
<PAGE>
Indenture at any time by the Issuer and the Trustee with the consent of the
Holders of not less than a majority in principal amount of the Securities of
each series at the time Outstanding affected thereby. The Indenture also
contains provisions permitting the Holders of at least a majority in principal
amount of the Securities of such series Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Issuer with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holders of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of, premium or Make-Whole
Amount, if any, and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of,
premium or Make-Whole Amount, if any, on, and interest on this Security are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Issuer and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities of this series, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith. In no event shall the Issuer be required to pay any
Additional Amounts as contemplated by the Indenture.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee, and any authorized agent of the Issuer or the
Trustee may treat the Person in whose name this Security is registered as the
absolute owner of this Security (whether or not this Security shall be overdue
and notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on
6
<PAGE>
account of, the principal hereof and premium, if any, and subject to the
provisions on the face hereof, interest hereon, and for all other purposes, and
none of the Issuer, the Trustee or any authorized agent of the Issuer or the
Trustee shall be affected by any notice to the contrary.
Notwithstanding anything contained herein or in the Indenture to the
contrary, no recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evidenced thereby (including without limitation, any obligation or indebtedness
relating to the principal of, or premium or Make-Whole Amount, if any, interest
or any other amounts due, or claimed to be due, on this Security), or for any
claim based thereon or otherwise in respect thereof, shall be had (i) against
CPHC or any other partner in the Issuer, (ii) against Colonial or any other
person which owns an interest, directly or indirectly, in any partner in the
Issuer or (iii) against any promoter, as such, or against any past, present or
future stockholder, partner, officer or director, as such, of the Issuer or of
any successor, either directly or through the Issuer or any successor, under any
rule of law, statute or constitutional provisions or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of this Security
by the Holder thereof and as part of the consideration for the issue of the
Securities of this series. The Holder of this Security acknowledges by
acceptance of this Security that its sole remedies under the Indenture for any
Default by the Issuer in the payment of the principal of, or any premium or
Make-Whole Amount, if any, interest or any amounts due, or claimed to be due, on
this Security, or otherwise, are limited to claims against the property of the
Issuer as provided in Section 503 of the Indenture.
THE INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SUCH STATE, EXCEPT AS MAY OTHERWISE BE REQUIRED BY
MANDATORY PROVISIONS OF LAW.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Terms used herein that are defined in the Indenture shall have the
respective meanings assigned them in the Indenture.
7
<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:
<TABLE>
<S> <C> <C>
TEN COMM - as tenants in common UNIF GIFT MIN ACT -
TEN ENT - as tenants by the entireties Custodian
________ ________
JT TEN - as joint tenants with right (Cust) (Minor)
of survivorship and not as Under Uniform Gifts to Minors
tenants in common Act
____________
State
</TABLE>
Additional abbreviations may also be used though not in the above list.
________________________________________
Social Security or taxpayer I.D. or other identifying number of assignee.
___________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto
________________________________________________________________________________
________________________________________________________________________________
(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 kept for
registration thereof, with full power of substitution in the premises.
Dated:
_____________
______________________________
<PAGE>
EXHIBIT D
---------
EXECUTION COPY
--------------
COLONIAL REALTY LIMITED PARTNERSHIP, AS OBLIGOR
AND
BANKERS TRUST COMPANY,
AS TRUSTEE
-------------------------
INDENTURE
DATED AS OF JULY 22, 1996
---------------------------------------------
Debt Securities
---------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES......................................................................1
RECITALS OF THE COMPANY......................................................1
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION....................................1
SECTION 101. Definitions...............................................1
Acquisition Lines of Credit........................................1
Act................................................................2
Additional Amounts.................................................2
Adjusted Total Assets..............................................2
Affiliate..........................................................2
Annual Service Charge..............................................2
Authenticating Agent...............................................2
Authorized Newspaper...............................................2
Bankruptcy Law.....................................................2
Bearer Security....................................................2
Board of Directors.................................................2
Board Resolution...................................................2
Business Day.......................................................3
CEDEL..............................................................3
Colonial...........................................................3
Commission.........................................................3
Company............................................................3
Company Request....................................................3
Consolidated Income Available for Debt Service.....................3
Consolidated Net Income............................................3
Conversion Event...................................................3
Corporate Trust Office.............................................3
corporation........................................................3
coupon.............................................................4
CPHC...............................................................4
Custodian..........................................................4
Debt...............................................................4
Defaulted Interest.................................................4
Disqualified Stock.................................................4
DTC................................................................4
Dollar or "$"......................................................4
ECU................................................................4
Euroclear..........................................................4
European Communities...............................................4
i
<PAGE>
European Monetary System...........................................4
Event of Default...................................................5
Exchange Act.......................................................5
Foreign Currency...................................................5
GAAP...............................................................5
Government Obligations.............................................5
Holder.............................................................5
Indenture..........................................................5
Indexed Security...................................................5
Interest...........................................................6
Interest Payment Date..............................................6
IPO................................................................6
Make-Whole Amount..................................................6
Maturity...........................................................6
Officers' Certificate..............................................6
Opinion of Counsel.................................................6
Original Issue Discount Security...................................6
Outstanding........................................................6
Paying Agent.......................................................7
Person.............................................................7
Place of Payment...................................................7
Predecessor Security...............................................7
Redemption Date....................................................8
Redemption Price...................................................8
Registered Security................................................8
Regular Record Date................................................8
Reinvestment Rate..................................................8
Repayment Date.....................................................8
Repayment Price....................................................8
Responsible Officer................................................8
Securities Act.....................................................8
Security...........................................................8
Security Register and Security Registrar...........................9
Significant Subsidiary.............................................9
Special Record Date................................................9
Stated Maturity....................................................9
Statistical Release................................................9
Subsidiary.........................................................9
Trust Indenture Act or TIA.........................................9
Trustee............................................................9
Unencumbered Total Asset Value.....................................9
United States......................................................10
United States person...............................................10
Yield to Maturity..................................................10
SECTION 102. Compliance Certificates and Opinions......................10
ii
<PAGE>
SECTION 103. Form of Documents Delivered to Trustee....................10
SECTION 104. Acts of Holders...........................................11
SECTION 105. Notices, etc., to Trustee and Company.....................12
SECTION 106. Notice to Holders; Waiver.................................12
SECTION 107. Effect of Headings and Table of Contents..................13
SECTION 102. Successors and Assigns....................................13
SECTION 109. Separability Clause.......................................13
SECTION 110. Benefits of Indenture.....................................13
SECTION 111. Non-Recourse .............................................14
SECTION 112. Governing Law.............................................14
SECTION 113. Legal Holidays............................................14
ARTICLE TWO SECURITIES FORMS.................................................14
SECTION 201. Forms of Securities.......................................15
SECTION 202. Form of Trustee's Certificate of Authentication...........15
SECTION 203. Securities Issuable in Global Form........................15
ARTICLE THREE THE SECURITIES.................................................16
SECTION 301. Amount Unlimited; Issuable in Series......................16
SECTION 302. Denominations.............................................19
SECTION 303. Execution, Authentication, Delivery and Dating............19
SECTION 304. Temporary Securities......................................20
SECTION 305. Registration, Registration of Transfer and
Exchange..............................................22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........25
SECTION 307. Payment of Interest; Interest Rights Preserved............26
SECTION 308. Persons Deemed Owners.....................................27
SECTION 309. Cancellation .............................................28
SECTION 310. Computation of Interest...................................28
ARTICLE FOUR SATISFACTION AND DISCHARGE......................................29
SECTION 401. Satisfaction and Discharge of Indenture...................29
SECTION 402. Application of Trust Funds................................30
ARTICLE FIVE REMEDIES........................................................30
SECTION 501. Events of Default.........................................30
SECTION 502. Acceleration of Maturity; Rescission and
Annulment.............................................31
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................32
SECTION 504. Trustee May File Proofs of Claim..........................33
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................34
SECTION 506. Application of Money Collected............................34
iii
<PAGE>
SECTION 507. Limitation on Suits.......................................34
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts..................35
SECTION 509. Restoration of Rights and Remedies........................35
SECTION 510. Rights and Remedies Cumulative............................35
SECTION 511. Delay or Omission Not Waiver..............................35
SECTION 512. Control by Holders of Securities..........................35
SECTION 513. Waiver of Past Defaults...................................36
SECTION 514. Waiver of Usury, Stay or Extension Laws...................36
SECTION 515. Undertaking for Costs.....................................36
ARTICLE SIX THE TRUSTEE...................................................36
SECTION 601. Notice of Defaults........................................36
SECTION 602. Certain Rights of Trustee.................................37
SECTION 603. Not Responsible for Recitals or Issuance of
Securities............................................38
SECTION 604. May Hold Securities.......................................38
SECTION 605. Money Held in Trust.......................................38
SECTION 606. Compensation and Reimbursement............................38
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.............................................39
SECTION 608. Resignation and Removal; Appointment of
Successor.............................................39
SECTION 609. Acceptance of Appointment by Successor....................40
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business..............................................41
SECTION 611. Appointment of Authenticating Agent.......................41
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY..........................................43
SECTION 701. Disclosure of Names and Addresses of Holders..............43
SECTION 702. Reports by Trustee........................................43
SECTION 703. Reports by Company........................................43
SECTION 704. The Company to Furnish Trustee Names and
Addresses of Holders..................................43
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE...........................................44
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to
Certain Conditions....................................44
SECTION 802. Rights and Duties of Successor Entity.....................44
SECTION 803. Officers' Certificate and Opinion of Counsel..............44
iv
<PAGE>
ARTICLE NINE SUPPLEMENTAL INDENTURES.........................................45
SECTION 901. Supplemental Indentures Without Consent of
Holders...............................................45
SECTION 902. Supplemental Indentures with Consent of Holders...........46
SECTION 903. Execution of Supplemental Indentures......................47
SECTION 904. Effect of Supplemental Indentures.........................47
SECTION 905. Conformity with Trust Indenture Act.......................47
SECTION 906. Reference in Securities to Supplemental Indentures........47
SECTION 907. Notice of Supplemental Indentures.........................47
ARTICLE TEN COVENANTS........................................................47
SECTION 1001. Payment of Principal, Premium (if any), Make-
Whole Amount (if any), Interest and Additional
Amounts...............................................47
SECTION 1002. Maintenance of Office or Agency..........................48
SECTION 1003. Money for Securities Payments to Be Held in
Trust.................................................49
SECTION 1004. Limitations on Incurrence of Debt........................50
SECTION 1005. [Intentionally Omitted]..................................51
SECTION 1006. Existence................................................51
SECTION 1007. Maintenance of Properties................................51
SECTION 1008. Insurance................................................51
SECTION 1009. Payment of Taxes and Other Claims........................51
SECTION 1010. Provision of Financial Information.......................52
SECTION 1011. Statement as to Compliance...............................52
SECTION 1012. Additional Amounts.......................................52
SECTION 1013. Waiver of Certain Covenants..............................53
ARTICLE ELEVEN REDEMPTION OF SECURITIES......................................53
SECTION 1101. Applicability of Article.................................53
SECTION 1102. Election to Redeem; Notice to Trustee....................53
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........53
SECTION 1104. Notice of Redemption.....................................54
SECTION 1105. Deposit of Redemption Price..............................55
SECTION 1106. Securities Payable on Redemption Date....................55
SECTION 1107. Securities Redeemed in Part..............................56
ARTICLE TWELVE [INTENTIONALLY OMITTED].......................................56
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF
HOLDERS.................................................56
SECTION 1301. Applicability of Article.................................56
SECTION 1302. Repayment of Securities..................................56
v
<PAGE>
SECTION 1303. Exercise of Option.......................................56
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable................................57
SECTION 1305. Securities Repaid in Part................................58
ARTICLE FOURTEEN DEFEASANCE AND COVENANT
DEFEASANCE...............................................58
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance..............58
SECTION 1402. Defeasance and Discharge.................................58
SECTION 1403. Covenant Defeasance......................................59
SECTION 1404. Conditions to Defeasance or Covenant Defeasance..........59
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions............................................60
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES............................61
SECTION 1501. Purposes for Which Meetings May Be Called................61
SECTION 1502. Call, Notice and Place of Meetings.......................61
SECTION 1503. Persons Entitled to Vote at Meetings.....................62
SECTION 1504. Quorum; Action...........................................62
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings...............................63
SECTION 1506. Counting Votes and Recording Action of Meetings..........63
SECTION 1507. Evidence of Action Taken by Holders......................64
SECTION 1508. Proof of Execution of Instruments........................64
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
vi
<PAGE>
Colonial Properties Trust, as Obligor
Reconciliation and tie between Trust Indenture Act of 1939 (the
"1939 Act") and this Indenture, dated as of July 22, 1996.
Trust Indenture Act Section Indenture Section
(S) 310 (a) (1)...........................................607
(a) (2)...........................................607
(b)...............................................607, 608
(S) 312 (c)...............................................701
(S) 313 (a)...............................................70
(c)...............................................702
(S) 314 (a)...............................................703
(a) (4)...........................................1011
(c) (1)...........................................102
(c) (2)...........................................102
(e)...............................................102
(S) 315 (b)...............................................601
(S) 316 (a) (last sentence)...............................101 ("Outstanding")
(a) (1) (A).......................................502, 512
(a) (1) (B).......................................513
(b)...............................................508
(S) 317 (a) (1)...........................................503
(a) (2)...........................................504
(S) 318 (a)...............................................111
(c)...............................................111
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this 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.
<PAGE>
PARTIES
Indenture (this "Indenture"), dated as of July 22, 1996, by and
between COLONIAL REALTY LIMITED PARTNERSHIP, a Delaware limited partnership (the
"Company") having its principal office at 2101 Sixth Avenue North, Suite 750,
Birmingham, Alabama 35203, and Bankers Trust Company, a New York banking
corporation, as Trustee hereunder (the "Trustee"), having its Corporate Trust
Office (as defined below) at Four Albany Street, New York, New York 10006.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes debt securities (the "Securities") evidencing its unsecured
indebtedness, and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the 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
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
as 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
(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.
"Acquisition Lines of Credit" means, collectively, any secured lines
of credit of the Company or any Subsidiary, the proceeds of which shall be used,
among other things, to acquire interests, directly or indirectly, in real
estate.
<PAGE>
"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 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.
"Adjusted Total Assets" as of any date means the sum of (i)
$328,177,823 (which represents the amount determined by multiplying the price at
which Colonial's common shares of beneficial interest were offered in the IPO by
the sum of (A) the common shares of beneficial interest of Colonial issued in
the IPO and (B) the Units of the Company not held by Colonial that were issued
in connection with the IPO), (ii) $108,841,000 (which represents the principal
amount of outstanding Debt of the Company immediately following the IPO) and
(iii) the purchase price or cost of any real estate assets or mortgages
receivable (or interests therein) acquired (including the value of any Units
issued in connection therewith) or developed after the IPO and the amount of any
securities offering proceeds and other proceeds of Debt received after the IPO
(to the extent such proceeds were not used to acquire real estate assets or
mortgages receivables or used to reduce Debt), adjusted for the proceeds of any
real estate assets disposed of by the Company.
"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 Service Charge" as of any date means the amount of any
interest expensed during the four consecutive fiscal quarters most recently
ended prior to such date.
"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.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means the board of directors of CPHC, the
executive committee or any committee of that board duly authorized to act
hereunder, as the case may be.
"Board Resolution" means a copy of a resolution of CPHC, certified by
the Secretary or an Assistant Secretary of CPHC 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.
-2-
<PAGE>
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the 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.
"Colonial" means Colonial Properties Trust, an Alabama real estate
investment trust.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order mean, respectively, a written
request or order signed in the name of and on behalf of the Company by the
Chairman of the Board, the President or a Vice President, and by the Treasurer
or an Assistant Treasurer, the Secretary or an Assistant Secretary of CPHC, as
general partner 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 plus amounts which
have been deducted for (a) interest on Debt of the Company and its Subsidiaries,
(b) provision for taxes of the Company and its Subsidiaries based on income, (c)
amortization of debt discount, (d) provisions for gains and losses on
properties, (e) depreciation and amortization, (f) the effect of any noncash
charge resulting from a change in accounting principles in determining
Consolidated Net Income for such period and (g) amortization of deferred
charges.
"Consolidated Net Income" for any period means the amount of net
income (or loss) of the Company and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP.
"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 principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business shall
be administered, which office at the date hereof is located at Four Albany
Street, New York, New York 10006, except that for purposes of Section 1002, such
term shall mean the office or agency of the Trustee in the United Kingdom, which
office at the date hereof is located at One Appold Street, Broadgate, London
EC2A 2HE, England.
"corporation" includes corporations, associations, companies, real
estate investment trusts and business trusts.
-3-
<PAGE>
"coupon" means any interest coupon appertaining to a Bearer Security.
"CPHC" means Colonial Properties Holding Company, an Alabama
corporation and sole general partner of the Company.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Company or any Subsidiary means any indebtedness of the
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Company or any Subsidiary,
(iii) reimbursement obligations 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 the Company or
any Subsidiary as lessee which is reflected on the Company's consolidated
balance sheet as a capitalized lease in accordance with generally accepted
accounting principles; in the case of items of indebtedness incurred under (i)
through (iii) above to the extent that any such items (other than letters of
credit) would appear as a liability on the Company's consolidated balance sheet
in accordance with generally accepted accounting principles, and also includes,
to the extent not otherwise included, any obligation by the Company or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Disqualified Stock" means, with respect to any person, any capital
stock or partnership interest of such person which by the terms of such capital
stock or partnership interest (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon the occurrence
of any event or otherwise: (i) matures or is mandatorily redeemable, pursuant to
a sinking fund obligation or otherwise; (ii) is convertible into or exchangeable
or exercisable for Debt or Disqualified Stock; or (iii) is redeemable at the
option of the holder thereof, in whole or in part, in each case on or prior to
the maturity of the relevant series of Securities.
"DTC" means The Depository Trust Company for so long as it shall be a
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"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.
"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.
-4-
<PAGE>
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor statute thereto, in each case as amended from time to time and the
rules and regulations of the Commission thereunder.
"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.
"GAAP" means generally accepted accounting principles, as in effect
from time to time, as used in the United States applied on a consistent basis;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and 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 Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer 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 of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the particular series of Securities for which such Person is Trustee established
as contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
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"interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1012,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"IPO" means the initial public offering of Colonial consummated in
September 1993.
"Make-Whole Amount" means, in connection with any optional redemption
of any Securities, the excess, if any, of: (i) the aggregate present value as of
the date of such redemption of each dollar of principal being redeemed and the
amount of interest (exclusive of interest accrued to the date of redemption)
that would have been payable in respect of each such dollar if such redemption
had not been made, determined by discounting, on a semi-annual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date notice of such redemption is given) from the
respective dates on which such principal and interest would have been payable if
such redemption had not been made, to the date of redemption; over (ii) the
aggregate principal amount of the Securities being redeemed.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President or a Vice-President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of CPHC, as
general partner 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
Colonial, CPHC or the Company and who shall be reasonably satisfactory to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the 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 Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made;
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(iii) 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 Twelve; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding 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 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 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
Security is originally issued by the Company, of the principal amount (or, in
the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in cause (i)
above) of such Security, (iii) the principal amount of any Indexed 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 Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned by
the Company or any other obligor upon the 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 Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the 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 Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, Company, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as
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the mutilated, destroyed, lost or stolen Security or the Security to which the
mutilated, destroyed, lost or stolen coupon appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, 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 Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Reinvestment Rate" means the yield on Treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption, and rounded to the nearest month) to Stated Maturity of the
principal being redeemed (the "Treasury Yield"), plus 0.25%. For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release under the heading "Week Ending" for "U.S.
Government Securities -- Treasury Constant Maturities" with a maturity equal to
such remaining life; provided, that if no published maturity exactly corresponds
to such remaining life, then the Treasury Yield shall be interpolated or
extrapolated on a straight-line basis from the arithmetic means of the yields
for the next shortest and next longest published maturities. For purposes of
calculating the Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall be used. If
the format or content of the Statistical Release changes in a manner that
precludes determination of the Treasury Yield in the above manner, then the
Treasury Yield shall be determined in the manner that most closely approximates
the above manner, as reasonably determined by the Company.
"Repayment Date" means, when used with respect to any 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 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 (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any assistant
secretary, the treasurer, any assistant treasurer, 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 and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of such
officer's knowledge and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 and any successor
statute thereto, in each case as amended from time to time and the rules and
regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
there is more than one Person acting as Trustee under this
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Indenture, "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 Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any determination under the Indenture,
then such other reasonably comparable index which shall be designated by the
Company.
"Subsidiary" means a corporation, partnership or limited liability
company, a majority of the outstanding voting stock, partnership interests or
membership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Company or by one or more Subsidiaries of the
Company. For the purposes of this definition, "voting stock" means stock having
the voting power for the election of directors, general partners, managers or
trustees, as the case may be, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee 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,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Unencumbered Total Asset Value" as of any date means the sum of (i)
the portion of Adjusted Total Assets allocable to the Company's real estate
assets and (ii) the value of all other assets of the Company and its
Subsidiaries on a consolidated basis determined in accordance with generally
accepted accounting principles (but excluding intangibles and accounts
receivable), in each case which are unencumbered by any mortgage, lien, charge,
pledge or security interest. For purposes of this definition, the portion of
Adjusted Total Assets allocable to each of the 36 properties owned by the
Company at the time of the IPO shall be determined by reference to each such
property's contribution to net operating income of the Company at the time of
the IPO, and the
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portion allocable to each property acquired or developed after the IPO shall be
equal to the purchase price or cost of such property.
"United States" means, unless otherwise specified with respect to any
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 person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, Company or other entity created or
organized in or under the laws of the United States or an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the 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 (including certificates
delivered pursuant to Section 1011) 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;
(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 complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case 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.
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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 Securities of all series or one
or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person
or by agents duly appointed in writing. If Securities of a series are issuable
as Bearer Securities, any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of 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 or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee 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
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 Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, 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
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit
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is deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
(e) If the 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 Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
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, 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 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 Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice, nor any defect in any notice
so mailed, to any particular
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Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered 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 Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer 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
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 Securities as provided
above, then such notification to Holders of Bearer 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 Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
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 be binding on their successors and assigns,
whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any 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, in the
Securities or coupons, express or implied, shall give to any Person, other than
the Parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
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SECTION 111. Non-Recourse. Notwithstanding anything contained
herein to the contrary, no recourse under or upon any obligation, covenant or
agreement contained in this Indenture, in any Security or coupon appertaining
thereto, or because of any indebtedness evidenced thereby (including, without
limitation, any obligation or indebtedness relating to the principal of, or
premium or Make-Whole Amount, if any, interest or any other amounts due, or
claimed to be due, on any Security issued hereunder), or for any claim based
thereon or otherwise in respect thereof, shall be had (i) against CPHC or any
other partner in the Company, (ii) against Colonial or any other Person which
owns an interest, directly or indirectly, in any partner in the Company or (iii)
against any promoter, as such, or against any past, present or future
shareholder, officer, director or partner, as such, of the Company, CPHC or
Colonial or of any successor, either directly or through the Company, CPHC or
Colonial or any successor, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities. The Holders of the Securities
hereunder acknowledge by the acceptance of the Securities that their sole
remedies under this Indenture for any Default by the Company in the payment of
the principal of, or any premium or Make-Whole Amount, if any, interest or any
amounts due, or claimed to be due, on any Security, or otherwise, are limited to
claims against the property of the Company as provided in Section 503 hereof.
SECTION 112. Governing Law. This Indenture and the 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 113. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
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, 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 Securities. The Registered Securities, if any,
of each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with this Indenture, 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 Securities may be listed, or to conform to usage.
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Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
Bankers Trust Company, as Trustee
By:_____________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or 304. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
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 Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the
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Holder of such permanent global Security in registered form, or (ii) in the case
of a permanent global Security in bearer form, Euroclear and/or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the series pursuant
to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the series shall
be payable;
(4) the rate or rates at which the 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 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;
(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
or Make-Whole Amount, if any), interest, if any, on, and Additional Amounts, if
any, payable in respect of, Securities of the series shall be payable, any
Registered Securities of the series may be surrendered for registration of
transfer, exchange or conversion and notices or demands to or upon the Company
in respect of the 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 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 Securities of the series pursuant to any 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
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upon which Securities of the series shall be redeemed, repaid or purchased
(including without limitation whether, and the extent to which, the premium
shall be payable in connection therewith), in whole or in part, pursuant to such
obligation.
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer 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 the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make- Whole Amount, if any) or interest, if any, on the 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, on one or more
currencies, currency units, composite currencies, commodities, equity indices or
other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the 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 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 Securities are denominated or stated to be
payable and the currency or currencies, currency unit or units or composite
currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of 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 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 Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any 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 Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the
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manner provided in Section 305, and, if Registered Securities of the series are
to be issuable as a global Security, the identity of the depositary for such
series;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
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 Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1012 on the 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 Securities rather than pay such Additional Amounts (and the terms of
any such option);
(23) the terms and conditions, if any, upon which such Debt
Securities may be subordinated to other indebtedness of the Company; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company on behalf of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms
of the Securities of such series.
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SECTION 302. Denominations. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued in
global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
Securities and any coupons appertaining thereto shall be executed by the
Chairman of the Board, and President or one of the Senior Vice Presidents, and
the Chief Financial Officer of CPHC, as general partner of the Company. The
signature of any of these officers on the 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 Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of CPHC 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 Securities
and did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver 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 Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
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 Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, 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 complying with Section 102 and stating
that
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(a) the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such 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 valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors' rights
generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the 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 Securities shall
have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or 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 Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order, the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of
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the definitive 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 Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary 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 Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive 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 Securities issued in
global form other than through the facilities of The Depository Trust Company.
If any such temporary Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of Euroclear and CEDEL, for credit to the respective accounts of
the beneficial owners of such 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
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary 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 Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global 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 Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
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Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth 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 Security with respect to which such certification was made
will be exchanged for definitive 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 Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Company.
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 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 Securities and of transfers of Registered 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, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such
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Security Register as herein provided. In the event that the Trustee shall cease
to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the 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 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 Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted 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 Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the 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 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 amount of such payment; 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 Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at such
office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the 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 Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is "DTC", then, unless the terms of
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such global Security expressly permit such global Security to be exchanged in
whole or in part for definitive Securities, a global Security may be
transferred, in whole but not in part, only to a nominee of DTC, or by a nominee
of DTC to DTC, or to a successor to DTC for such global Security selected or
approved by the Company or to a nominee of such successor to DTC. If at any time
DTC notifies the Company that it is unwilling or unable to continue as
depositary for the applicable global Security or Securities or if at any time
DTC ceases to be a clearing agency registered under the Exchange Act if so
required by applicable law or regulation, the Company shall appoint a successor
depositary with respect to such global Security or Securities. If (x) a
successor depositary for such global Security or Securities is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such unwillingness, inability or ineligibility, (y) an Event of Default
has occurred and is continuing and the beneficial owners representing a majority
in principal amount of the applicable series of Securities represented by such
global Security or Securities advise DTC to cease acting as depositary for such
global Security or Securities or (z) the Company, in its sole discretion,
determines at any time that all Outstanding Securities (but not less than all)
of any series issued or issuable in the form of one or more global Securities
shall no longer be represented by such global Security or Securities, then the
Company shall execute, and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such global Security
or Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security 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 Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depositary 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 such exchanges may
occur during a period beginning at the opening of business 15 days before any
selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
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No service charge shall be made for any registration of transfer or
exchange of 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 Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 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 Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that series
and like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with, in proper cases, such
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
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 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 Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security 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 Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security 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 Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or Make-
Whole Amount, if any), any interest on and any Additional Amounts with respect
to, Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
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Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen 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 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 Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security 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 Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
installment of interest on any Registered 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 inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case of
a Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of its participants
for the benefit of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series 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
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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 Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at the same
time the 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 Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the 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
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 may, in its
discretion, 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 mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and 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 Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the
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Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium or Make-Whole Amount, if any),
and (subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Holder of any Bearer Security and the
Holder of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and none
of the Company, the Trustee or 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
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
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 depositary, as a Holder, with
respect to such global Security or impair, as between such depositary, its
participants and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities and coupons and 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 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 Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Company,
unless by the 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 Securities of any
series, interest on the Securities of each series shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
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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 Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1012), and 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,
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is not
required or has been waived as provided in Section 305, (ii) 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
Securities called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106, and (iv)
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 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 Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium or Make-Whole Amount, if any) and
interest, and any Additional Amounts with respect thereto, to the
date of such deposit (in the case of 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, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium or
Make-Whole Amount, if any), and any interest and Additional Amounts for whose
payment such money has 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 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 upon or any
Additional Amounts payable in respect of any 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 the principal of (or premium or
Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the making of any sinking fund payment when
and as due by the terms of any 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 Security of that
series (other than a covenant or warranty a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), 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 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) a default under any bond, debenture, note or other
evidence of indebtedness of the Company, or under any mortgage, indenture or
other instrument of the Company (including a default with respect to Securities
of any series other than that series) under which there may be issued or by
which there may be secured any indebtedness of the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor on a full
recourse basis) whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay an aggregate principal
amount exceeding $10,000,000 of such indebtedness when due and payable after the
expiration of
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any applicable grace period with respect thereto and shall have resulted in such
indebtedness in an aggregate principal amount exceeding $10,000,000 becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been discharged,
or such acceleration having been rescinded or annulled, within a period of 10
days after there 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 principal amount of the Outstanding 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 pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(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 in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to
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 or
other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an Event of
Default with respect to Securities of any series at the time Outstanding occurs
and is continuing (other than an Event of Default specified in clause (6) or (7)
of Section 501 that occurs with respect to the Company), then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal of (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof), and premium
(if any) and accrued interest on, the 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, premium
(if any), and accrued interest or specified portion thereof shall become
immediately due and payable. In the event of a declaration of acceleration
because an Event of Default set forth in clause (5) of Section 501 has occurred
and is continuing, such declaration of acceleration shall be automatically
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rescinded and annulled if the event of default triggering such Event of Default
pursuant to clause (5) along with any other events of default that have been
triggered by the Event of Default (whether or not a notice or declaration of
acceleration shall have been given by the holders of the relevant indebtedness)
shall be remedied or cured by the Company and/or the relevant Subsidiary or
waived by the holders of the relevant indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in clause (6) or (7) of Section 501 occurs with respect to the
Company, the principal of (or specified portion thereof), premium, if any, and
accrued interest on the Securities of all series then outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with
respect to 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 a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(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 Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all
Outstanding Securities of that series and any
related coupons,
(B) the principal of (and premium or Make-Whole Amount,
if any, on) any Outstanding 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
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 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 Securities of that
series, other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 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 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 or Make-Whole Amount, if any, on) any Security of any series at its
Maturity, then the Company will, upon
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demand of the Trustee, pay to the Trustee, for the benefit of the Holders of
such Securities of such series and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium or Make-Whole
Amount, if any) and interest and Additional Amount, with interest upon any
overdue principal (and premium or Make-Whole Amount, 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 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.
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 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 Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any 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 Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities 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 or Make-Whole Amount,
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 Securities of such series,
of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, owing and unpaid in respect of the
Securities 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 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 Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium or Make-Whole
Amount, if any) or interest and any Additional Amounts, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
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 Securities and coupons for principal (and premium or Make-Whole Amount, if
any) and interest and any Additional Amounts payable, in respect of which or for
the benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the aggregate amounts due and payable on
such Securities and coupons for principal (and premium or Make-Whole Amount, if
any), 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 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 Securities of that
series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(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
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of 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 or Make-Whole Amount, if any, Interest and Additional
Amounts. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders of Securities or
coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of
not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
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(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of Securities
of such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series and any
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 or Make-
Whole Amount, if any) or interest on or Additional Amounts payable in respect of
any 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 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 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 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 Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole Amount,
if any) or interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the
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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 or Make-Whole Amount, if any) or interest on or
any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and provided further that in the case of any default
or breach of the character specified in Section 501(4) with respect to the
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 Securities
of such series.
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 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 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
Securities. The recitals contained herein and in the 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
Securities, coupons, or Prospectus except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying
Agent, 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 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 the Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed 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 as mutually agreed upon
(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 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, its directors, officers
and employees, 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.
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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 prior to the
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 or Make-
Whole Amount, if any) or interest on particular 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. If such corporation
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 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
Securities of one or more series by giving written notice thereof to the
Company. If an instrument of acceptance by a 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
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and 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 Security who has been a bona fide Holder of a 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 Security who has been a bona fide Holder of a 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
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Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a 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 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 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 Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there shall
be only one Trustee with respect to the Securities of any particular series).
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance or such appointment, become the successor Trustee
with respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with respect
to the Securities of any series shall have been so appointed by the Company or
the Holders of Securities and accepted appointment in the manner hereinafter
provided, the resigning or removed Trustee or any Holder of a Security who has
been a bona fide Holder of a Security of such series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto, pursuant to Article Nine 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 Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture
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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 Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(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.
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 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 Securities of coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
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 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
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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 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 Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and 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 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 Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
BANKERS TRUST COMPANY, as Trustee
By: ,
---------------------------
as Authenticating Agent
By: ,
---------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of 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 Security Registrar shall
be held accountable by reason of the disclosure of any information as to the
names and addresses of the Holders of Securities in accordance with 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 October
1 of each year commencing with the first October 1 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such October 1 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 Exchange Act; or 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 Exchange Act 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;
(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 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. The 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 Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
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(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
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 may
consolidate with, or sell, lease or convey all or substantially all of its
assets to, or merge with or into any other entity, provided that in any such
case, (1) either the Company shall be the continuing entity, or the successor
entity shall be an entity organized and existing under the laws of the United
States or a State thereof and such successor entity shall expressly assume the
due and punctual payment of the principal of (and premium or Make-Whole Amount,
if any) and any interest (including all Additional Amounts, if any, payable
pursuant to Section 1012) on all of the Securities, according to their tenor,
and the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such entity and (ii) immediately after
giving effect to such transaction and treating any indebtedness which becomes an
obligation of the Company or any Subsidiary 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 be continuing.
SECTION 802. Rights and Duties of Successor Entity. In case of
any such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to and
be substituted for the Company, with the same effect as if it had been named
herein as the party of the first part, and the predecessor entity, except in the
event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor entity thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company, any
or all of the 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 entity, 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 Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor entity, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series) or
to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such additional Events
of Default such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default or may limit the right of the Holders of a majority in aggregate
principal amount of that or those series of 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 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 Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities, to permit Bearer Securities to be
issued in exchange for Bearer Securities of other authorized denominations or to
permit or facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
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(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 provisions shall not adversely affect the
interests of the Holders of 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 defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of 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 Securities 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 modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; provided, however, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium
or Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or any
premium payable upon the redemption thereof, or change any obligation of the
Company to pay Additional Amounts pursuant to Section 1012 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount 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 repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of 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 (or compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of
Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1013, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act 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
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particular series of Securities, or which modifies the rights of the Holders of
Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying 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, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new 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 Securities of such series.
SECTION 907. Notice of Supplemental Indentures. Promptly after
the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 902, the Company shall give notice thereof
to the Holders of each Outstanding Security affected, in the manner provided for
in Section 106, setting forth in general terms the substance of such
supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium (if any),
Make-Whole Amount (if any), Interest and Additional Amounts. The Company
covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of (and premium or Make-Whole
Amount, if any) and interest on and any Additional Amounts payable in respect of
the Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Unless
otherwise specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on and any Additional Amounts payable in respect of
Bearer Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1012 in respect of principal of (or premium or
Make-Whole Amount, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons for such interest installments
as are evidenced thereby as they severally mature. Unless otherwise specified
with respect to Securities of any series pursuant to Section 301, at the option
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of the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities
of a series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment or conversion, where 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 Securities of that series and this Indenture may
be served. If Securities of a series are issuable as Bearer Securities, the
Company will maintain: (A) in the Borough of Manhattan, The City of New York, an
office or agency where any Registered Securities of that series may be presented
or surrendered for payment or conversion, where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served and where Bearer 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 applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1012) or conversion; provided, however, that if the
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 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 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 Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the 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, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
Additional Amounts payable on Bearer Securities of that series pursuant to
Section 1012) or conversion at the offices specified in the Security, in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoint the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer 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 Securities of a series are
payable in Dollars, payment of principal of and any premium and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 1012) shall be made at the office of the Company's
Paying Agent 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 or Make-Whole
Amount, interest or Additional Amounts, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
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The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all 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
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of 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 Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency,
or so long as it is required under any other provision of the Indenture, then
the Company will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (and premium or Make-Whole Amount, if any), or
interest on or Additional Amounts in respect of, any of the 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 Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (and premium or Make-Whole Amount,
if any) or interest or Additional Amounts 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 Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, if any), or interest
on or Additional Amounts in respect of, any 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 or Make-Whole Amount, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal, premium or interest
or 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
(1) hold all sums held by it for the payment of principal of
(and premium or Make-Whole Amount, if any) or interest on Securities in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, if any) or interest; and
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(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 in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium or Make-Whole
Amount, if any) or interest on, or any Additional Amounts in respect of, any
Security of any series and remaining unclaimed for two years after such
principal (and premium or Make-Whole Amount, if any), interest or Additional
Amounts 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 Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal of (and premium
or Make- Whole Amount, if any) or interest on, or any Additional Amounts in
respect of, any Security, without interest thereon, 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. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any Subsidiary
to, incur any Debt (as defined below), other than intercompany Debt
(representing Debt to which the only parties are Colonial, any of its
subsidiaries, the Company and any Subsidiary, or Debt owed to the Management
Corporation arising from routine cash management practices, but only so long as
such Debt is held solely by any of Colonial, any of its subsidiaries, the
Company and any Subsidiary), that is subordinate in right of payment to the
Securities, if, immediately after giving effect to the incurrence of such Debt
and the application of the proceeds thereof, the aggregate principal amount of
all outstanding Debt of the Company and its Subsidiaries on a consolidated basis
determined in accordance with generally accepted accounting principles is
greater than 60% of the sum of (i) the Company's Adjusted Total Assets (as
defined below) as of the end of the most recent fiscal quarter prior to the
incurrence of such additional Debt, (ii) the purchase price of any real estate
assets or mortgages receivable (or interests therein) acquired by the Company or
any Subsidiary since the end of such fiscal quarter, including those obtained in
connection with the incurrence of such additional Debt and (iii) the amount of
any securities offering proceeds received by the Company or any Subsidiary since
the end of such fiscal quarter (to the extent that such proceeds were not used
to acquire such real estate assets or mortgages receivable or used to reduce
Debt); and
(b) The Company will not, and will not permit any Subsidiary
to, incur any Debt if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge for 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 to 1, on a pro forma basis after giving
effect to the incurrence of such Debt and to the application of the proceeds
thereof; and
(c) The Company will not, and will not permit any Subsidiary
to, incur any Debt secured by any mortgage, lien, charge, pledge, encumbrance or
security interest of any kind upon
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any of the property of the Company or any Subsidiary ("Secured Debt"), whether
owned at the date of the Indenture or thereafter acquired, if, immediately after
giving effect to the incurrence of such Secured Debt and the application of the
proceeds thereof, the aggregate principal amount of all outstanding Secured Debt
of the Company and its Subsidiaries on a consolidated basis is greater than 40%
of the sum of (i) the Company's Adjusted Total Assets as of the end of the most
recent fiscal quarter prior to the incurrence of such additional Debt, (ii) the
purchase price of any real estate assets or mortgages receivable (or interests
therein) acquired by the Company or any Subsidiary since the end of such fiscal
quarter, including those obtained in connection with the incurrence of such
additional Debt and (iii) the amount of any securities offering proceeds
received by the Company or any Subsidiary since the end of such fiscal quarter
(to the extent that such proceeds were not used to acquire such real estate
assets or mortgages receivable or used to reduce Debt); and
(d) The Company will at all times maintain an Unencumbered
Total Asset Value in an amount not less than 150% of the aggregate principal
amount of all outstanding unsecured Debt of the Company and its Subsidiaries.
For purposes of the foregoing provisions regarding the
limitation on the incurrence of Debt, Debt shall be deemed to be "incurred" by
the Company or a Subsidiary whenever the Company or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof.
SECTION 1005. Intentionally Omitted.
SECTION 1006. 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 existence, rights (by partnership agreement and statute)
and franchises; provided, however, that the Company shall not be required to
preserve any right or franchise if it 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.
SECTION 1007. Maintenance of Properties. The Company will
cause all of its material 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 the
Company and its Subsidiaries shall not be prevented from selling or otherwise
disposing of for value its properties in the ordinary course of its business.
SECTION 1008. Insurance. The Company will, and will cause each
of its Subsidiaries to, keep all of its insurable properties insured against
loss or damage at least equal to their then full insurable value with insurers
of recognized responsibility and having an A.M. Best policy holder's rating of
not less than A-:V.
SECTION 1009. 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 shall 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 or for which the Company has
set apart and maintains an adequate reserve.
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SECTION 1010. Provision of Financial Information. Whether or
not the Company is subject to Section 13 or 15(d) of the Exchange Act, the
Company will, to the extent permitted under the Exchange Act, 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 (the "Financial
Information"), such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Company would have
been required so to file such documents if the Company were so subject. The
Company will also in any event (x) within 15 days of 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 Financial
Information and (ii) file with the Trustee copies of the Financial Information,
and (y) if filing such documents by the Company with the Commission is not
permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents
to any prospective Holder.
SECTION 1011. Statement as to Compliance. The Company will, in
accordance with Section 314 of the TIA, deliver to the Trustee, within 120 days
after the end of each fiscal year, a brief certificate from the 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 1011, such compliance shall be determined without regard to any
period of grace or requirement of notice under this Indenture.
SECTION 1012. Additional Amounts. If any Securities of a
series provide for the payment of Additional Amounts, the Company will pay to
the Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the 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 Securities of that series shall be made to Holders of
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 described in the 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 Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If 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
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entitled (i) to assume that no such withholding or deduction is required with
respect to any payment of principal or interest with respect to any Securities
of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with
respect to the 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
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.
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 1010, inclusive, if before or after the time for
such compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such 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.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of the
Company of all or less than all of the Securities of any series, the Company
shall, at least 45 days prior to the giving of the notice of redemption in
Section 1104 (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor more
than 60 days prior to the Redemption Date, unless a shorter period is specified
by the terms of such series established pursuant to Section 301, to each Holder
of Securities to be redeemed, but failure to give such notice in the manner
herein provided to the Holder of any Security designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without a charge, a new Security or Securities of authorized denominations for
the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall cease to
accrue on and after said date unless the Company shall default in the payment of
the Redemption Price and any accrued interest thereon,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining thereto,
if any, maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price and accrued interest, if any, or for conversion,
(7) that, unless otherwise specified in such notice, Bearer
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 and
the Trustee for such series and any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
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,
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(9) the CUSIP number of such Security, if any, and
(10) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for conversion
contained in such Securities, the then existing conversion price or rate, and
the date and time when the option to convert shall expire.
Notice of redemption of 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 least one
Business Day prior to 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, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Dates according to their terms
and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the 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 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.
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If any Security called for redemption by the Company shall not
be so paid upon surrender thereof for redemption by reason of a failure to
comply with Section 1105, the principal (and premium or Make-Whole Amount, if
any) shall, until paid, bear interest from the Redemption Date at the rate borne
by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article) 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 Security without service charge a new Security or 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 Security so surrendered.
ARTICLE TWELVE
[INTENTIONALLY OMITTED]
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities, if any,
and (except as otherwise specified by the terms of such series established
pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at a price equal to the principal amount thereof, together with interest,
if any, thereon accrued to the Repayment Date specified in or pursuant to the
terms of such Securities. The Company covenants that at least one Business Day
prior to the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (or, if so provided by the terms of the Securities of any series, a
percentage of the principal) of, and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. In order for
any Security to be repaid at the option of the Holder, the Trustee must receive
at the Place of Payment therefore specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, telex, facsimile transmission or a letter from a member of a
national securities
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exchange, or the National Association of Securities Dealers, Inc. ("NASD"), or a
commercial bank or trust company in the United States setting forth the name of
the Holder of the Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable. If Securities of any series that provide for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portion thereof, as the case may be, to be repaid shall become
due and payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with coupons, if any, appertaining thereto maturing after the Repayment Date,
the principal amount of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, on the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but with interest thereon, unless
the Company shall default in the payment thereof) to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business relevant Regular Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to it such security or indemnity
as they may require to save it and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by 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 presentation and surrender of those
coupons.
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If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof by reason of a failure
by the Company to comply with this Section 1304, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; 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 Securities of or within a
series under Section 1402 or (b) covenant defeasance of the 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 any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
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 Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium or Make-Whole Amount, if any) and interest, if
any, on such Securities and any coupons appertaining thereto when such payments
are due, (B) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional
Amounts, if any, on such Securities as contemplated by Section 1012, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section notwithstanding the prior exercise of its
option under Section 1403 with respect to such Securities and any coupons
appertaining thereto.
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SECTION 1403. Covenant Defeasance. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under
Sections 1004 to 1010, inclusive and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and coupons appertaining thereto on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter, "covenant defeasance"),
and such 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 1010, inclusive, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the 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 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(3) or 501(7) otherwise, as the case may be, but,
except as specified above, remainder of this Indenture and such 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 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 Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with the terms will provide, not later than one day before the due
date of any payment of principal of (and premium or Make-Whole Amount, if any)
and interest, if any, on such 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 the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and premium or Make-
Whole Amount, if any) and interest, if any, on such Outstanding Securities and
any coupons, appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(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 Securities
and any coupons appertaining thereto
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shall have occurred and be continuing on the date of such deposit or, insofar as
Sections 501(7) and 501(8) 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 execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such covenant defeasance had not occurred.
(f) The 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 either (i) 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 or (ii) all necessary registrations under said Act
have been effected.
(g) 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 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 Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent as the
Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium or Make-Whole Amount, if any) and interest and Additional
Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 301 or the terms of
such Security to receive payment in a currency or currency unit other than that
in which the deposit pursuant to Section 1404(a) has been made in respect of
such Security, or (b) a Conversion Event
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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 Security
and any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium or Make-Whole Amount, if any), and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the currency or currency
unit in which such Security becomes payable as a result of such election or
Conversion Event based on the applicable market exchange rate for such currency
or currency unit in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, 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 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.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A
meeting of Holders of Securities of any series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series, shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 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 Securities of such series
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in the amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York, or in 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 Securities of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Securities of any series shall be the Persons entitled to
vote at such meeting and their counsel, any representatives of the Trustee and
its counsel 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 Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of 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 specific
percentage, which is less than a majority, in principal amount the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid by the affirmative vote
of the Holders of such specified percentage in principal amount of the
Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series 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 Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other act that this Indenture expressly provides may be made, given or
taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
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(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given
or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner specified in
Section 104 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to the holding of Bearer Securities. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities provided in Section 1502(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series
or proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities
of any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of
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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 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 thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified percentage
in principal amount of the Holders of any or all series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such specified percentage of Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee. Proof and execution of any instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture and (subject to
Article Six) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments. Subject to
Article Six, the execution of any instrument by a Holder or his agent or proxy
may be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
* * * * *
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.
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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.
COLONIAL REALTY LIMITED PARTNERSHIP
By: COLONIAL PROPERTIES HOLDING
COMPANY, INC.
By:___________________________________
Title:
ATTEST
By: _____________________________
Title: Assistant Secretary
BANKERS TRUST COMPANY, as Trustee
By:_____________________________
Title: Vice President
ATTEST
By: _____________________________
Title: Assistant Vice President
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STATE OF ALABAMA )
) ss:
COUNTY OF MONTGOMERY )
On the __th day of __________, 1996, before me personally came
to me known, _____________ who, being by me duly sworn, did depose and say that
he/she resides in _________________________________, that he/she is the
___________________ of Colonial Properties Holding Company, Inc. one of the
parties described in and which executed the foregoing instrument; and that
he/she signed his/her name thereto by authority of said corporation.
[Notarial Seal]
-----------------------------------
Notary Public
COMMISSION EXPIRES
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STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _________ day of _________, 1996, before me personally
came to me known, _____________________, who, being by me duly sworn, did depose
and say that she/he resides at ___________________________, that she/he is a
__________________ of Bankers Trust Company, one of the parties described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by authority of said corporation.
[Notarial Seal]
-----------------------------------
Notary Public
COMMISSION EXPIRES:
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic companies, 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 Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Colonial Realty Limited Partnership 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 institution(s) 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 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 "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
________ of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an exchange for
an interest in a Permanent Global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened
<PAGE>
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:
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<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 Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S. $] ________________________________________________________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic companies,
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 Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Colonial Realty Limited
Partnership 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 institution(s) 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 Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened
<PAGE>
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:
-----------------------------------------
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