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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
SEPTEMBER 29, 1998
(Date of Report)
Date of earliest event reported: September 28, 1998
BRADLEY OPERATING LIMITED PARTNERSHIP
(Exact name of Registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-23065 04-3306041
(Commission File Number) (I.R.S. Employer Identification No.)
40 SKOKIE BOULEVARD, SUITE 600
NORTHBROOK, ILLINOIS 60062-1626
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code:
(847) 272-9800
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ITEM 5. OTHER EVENTS.
On September 28, 1998, Bradley Operating Limited Partnership, a Delaware
limited partnership (the "Partnership"), commenced a Medium-Term Note Program
(the "Program") which provides that the Partnership may offer and sell from time
to time its Medium-Term Notes due Nine Months or More from Date of Issue in an
aggregate principal amount of up to $150,000,000 (the "MTNs") as described in
the Partnership's Prospectus Supplement dated September 28, 1998 to the
Partnership's Prospectus dated May 14, 1998. The Partnership's Prospectus
Supplement was filed with the Securities Exchange Commission under Rule
424(b)(3) on September 28, 1998. The MTNs will be issued pursuant to the
Partnership's existing shelf registration statement on Form S-3 (Registration
No. 333-51675).
The MTNs will be offered and sold by PaineWebber Incorporated, BT Alex. Brown
Incorporated, First Chicago Capital Markets, Inc., NationsBanc Montgomery
Securities LLC, and Salomon Smith Barney Inc. as Agents for the Partnership (the
"Agents") pursuant to that certain Distribution Agreement among the Partnership,
Bradley Real Estate, Inc. (the "Company") and the Agents dated September 28,
1998. The MTNs will be issued under an Indenture between the Company and U.S.
Bank Trust National Association, as trustee (the "Trustee").
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SIGNATURES
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.
Date: September 29, 1998 BRADLEY OPERATING LIMITED PARTNERSHIP
By: BRADLEY REAL ESTATE, INC.
its General Partner
By: /s/ Thomas P. D'Arcy
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Thomas P. D'Arcy
Chairman, President and
Chief Executive Officer
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Item 7. FINANCIAL STATEMENTS AND EXHIBITS
EXHIBIT NUMBER EXHIBIT
1.1 Distribution Agreement, dated September 28, 1998 among the
Partnership, the Company and the Agents, relating to the MTNs.
4.1 Indenture, dated September 28, 1998, between the Partnership
and the Trustee.
4.2 Supplemental Indenture No. 1, dated as of September 28, 1998,
between the Partnership and the Trustee including a form of
Floating Rate Medium-Term Note and a form of Fixed Rate
Medium-Term Note.
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EXHIBIT 1.1
BRADLEY REAL ESTATE, INC.
BRADLEY OPERATING LIMITED PARTNERSHIP
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
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September 28, 1998
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
BT Alex. Brown Incorporated
130 Liberty Street, 37th Floor
New York, NY 10006
First Chicago Capital Markets, Inc.
One First National Plaza
Chicago, IL 60670
NationsBanc Montgomery Securities LLC
100 N. Tryon Street, 7th Floor
Charlotte, NC 28255
Salomon Smith Barney Inc.
7 World Trade Center, 42nd Floor
New York, NY 10048
Dear Ladies and Gentlemen:
Bradley Real Estate, Inc., a Maryland corporation (the "Company"), and
Bradley Operating Limited Partnership, a Delaware limited partnership (the
"Operating Partnership" and together with the Company, the "Transaction
Entities"), confirm their agreement with PaineWebber Incorporated, BT Alex.
Brown Incorporated, First Chicago Capital Markets, Inc., NationsBanc Montgomery
Securities LLC and Salomon Smith Barney Inc. (each, an "Agent" and collectively,
the "Agents"), with respect to the issue and sale from time to time by the
Operating Partnership of its Medium-Term Notes Due Nine Months or More From Date
of Issue (the "Notes").
Capitalized terms used but not otherwise defined herein shall have the
meanings given to those terms in the Prospectus (as herein defined).
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1. DESCRIPTION OF NOTES. The Operating Partnership proposes to
issue the Notes under an Indenture, dated September 28, 1998 (the "Senior
Indenture"), as supplemented by Supplemental Indenture No. 1 thereto to be dated
September 28, 1998 (the "Supplemental Indenture" and together with the Senior
Indenture, the "Indenture") between the Operating Partnership and U.S. Bank
Trust National Association, as trustee (the "Trustee"). As of the date hereof,
the Operating Partnership has authorized the issuance and sale of up to U.S.
$150,000,000 aggregate initial offering price (or its equivalent, based upon the
applicable exchange rate at the time of issuance, in such foreign or composite
currencies as the Operating Partnership shall designate at the time of issuance)
of Notes to or through the Agents pursuant to the terms of this Distribution
Agreement, as such amount may be reduced by the aggregate initial offering price
of any other debt securities issued by the Operating Partnership, whether within
or without the United States, pursuant to the registration statement referred to
below. It is understood, however, that the Operating Partnership may from time
to time authorize the issuance of additional Notes and that such additional
Notes may be sold to or through the Agents or through or to other agents
pursuant to the terms of this Distribution Agreement, all as though the issuance
of such Notes were authorized as of the date hereof.
This Distribution Agreement provides both for the sale of Notes by the
Operating Partnership to one or more Agents as principal for resale to investors
and other purchasers and for the sale of Notes by the Operating Partnership
directly to investors (as may from time to time be agreed to by the Operating
Partnership and the applicable Agent), in which case the applicable Agent will
act as an agent of the Operating Partnership in soliciting offers for the
purchase of Notes.
The Operating Partnership has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (File No.
333-51675) for the registration of debt securities, including the Notes, under
the Securities Act of 1933, as amended (the "Securities Act"), and the offering
thereof from time to time in accordance with Rule 430A or Rule 415 of the rules
and regulations of the Commission thereunder (the "Securities Act Rules and
Regulations"). Such registration statement has been declared effective by the
Commission. Such registration statement (and any further registration
statements which may be filed by the Operating Partnership for the purpose of
registering additional Notes and in connection with which this Distribution
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof (including in each case the information,
if any, deemed to be part thereof pursuant to Rule 430A(b) of the Securities Act
Rules and Regulations), and any prospectus supplement and pricing supplement
relating to the Notes, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents
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pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or the Securities Act or otherwise, is referred to herein as the
"Registration Statement." A prospectus supplement (the "Prospectus Supplement")
setting forth the terms of the offer of the Notes contemplated by this
Distribution Agreement, and additional information concerning the Transaction
Entities has been or will be prepared and will be filed by the Operating
Partnership pursuant to Rule 424(b) of the Securities Act Rules and Regulations,
on or before the second business day after it is first used in connection with
the offer and sale of Notes under this Distribution Agreement (or such earlier
time as may be required by the Securities Act Rules and Regulations). The final
form of prospectus included in the Registration Statement, as supplemented by
the Prospectus Supplement (including any supplement to the Prospectus that sets
forth the purchase price, interest rate or formula, maturity date and other
terms of a particular issue of Notes and all documents incorporated therein by
reference (each, a "Pricing Supplement")), is referred to herein as the
"Prospectus," except that if any revised prospectus, whether or not such revised
prospectus is required to be filed by the Operating Partnership pursuant to Rule
424(b) of the Securities Act Rules and Regulations, shall be provided to the
Agents by the Operating Partnership for use in connection with the offer and
sale of any of the Notes under this Distribution Agreement, the term
"Prospectus" shall refer to such revised prospectus from and after the time such
documents are first provided to the Agents for such use. Any registration
statement (including any supplement thereto or information which is deemed part
thereof) filed by the Operating Partnership under Rule 462(b) of the Securities
Act Rules and Regulations (a "Rule 462(b) Registration Statement") shall be
deemed to be part of the Registration Statement. Any prospectus (including any
amendment or supplement thereto or information which is deemed part thereof)
included in the Rule 462(b) Registration Statement shall be deemed to be part of
the Prospectus.
2. APPOINTMENT AS AGENT.
(a) Appointment. Subject to the terms and conditions stated
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herein and subject to the reservation by the Operating Partnership of the
right to solicit, sell or accept offers for Notes directly on its own
behalf, the Operating Partnership hereby agrees that Notes will be sold
exclusively to or through the Agents except as otherwise described below.
The Operating Partnership may accept offers to purchase Notes through an
agent other than an Agent (and, in connection therewith, may respond to
inquiries and requests for information from any such agents), provided that
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(i) the Operating Partnership shall not have solicited such offers, (ii)
the Operating Partnership and such agent shall have executed an agreement
with respect to such purchases having terms and conditions (including,
without limitation, commission rates) with respect to such purchases
substantially
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the same as the terms and conditions that would apply to such purchases
under this Distribution Agreement if such agent were an Agent (which may be
accomplished by incorporating by reference in such agreement the terms and
conditions of this Distribution Agreement) and (iii) the Operating
Partnership shall provide the Agents with a copy of such agreement promptly
following the execution thereof.
(b) Sale of Notes. The Operating Partnership shall not sell or
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approve the solicitation of offers for the purchase of Notes in excess of
the amount which shall be authorized by the Operating Partnership from time
to time or in excess of the aggregate initial offering price of Notes
registered pursuant to the Registration Statement. The Agents shall have
no responsibility for maintaining records with respect to the aggregate
initial offering price of Notes sold, or of otherwise monitoring the
availability of Notes for sale, under the Registration Statement.
(c) Purchases as Principal. The Agents shall not have any
-----------------------
obligation to purchase Notes from the Operating Partnership as principal,
but one or more Agents may agree from time to time to purchase Notes as
principal for resale to investors and other purchasers determined by such
Agent or Agents. Any such purchase of Notes by an Agent or Agents as
principal shall be made in accordance with Section 4(a) hereof.
(d) Solicitations as Agent. If agreed upon by an Agent and the
-----------------------
Operating Partnership, such Agent, acting solely as agent for the Operating
Partnership and not as principal, will solicit offers for the purchase of
Notes. Such Agent will communicate to the Operating Partnership, orally,
each offer to purchase Notes solicited by it on an agency basis, other than
those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of
Notes, in whole or in part, and any such rejection shall not be deemed a
breach of its agreement contained herein. The Operating Partnership shall
have the right to withdraw, cancel or modify any offer hereunder without
notice and the sole right to accept offers to purchase the Notes and may
reject any such offer in whole or in part and any such rejection shall not
be deemed a breach of its agreements contained herein. Such Agent shall
make reasonable efforts to assist the Operating Partnership in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by it and accepted by the Operating Partnership. Such Agent
shall not have any liability to the Operating Partnership in the event that
any such purchase is not consummated for any reason. If the Operating
Partnership shall default on its obligation to deliver Notes to a purchaser
whose offer it has accepted, the
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Operating Partnership shall (i) hold such Agent harmless against any loss,
claim or damage arising from or as a result of such default by the
Operating Partnership and (ii) notwithstanding such default, pay to such
Agent any commission to which it would otherwise be entitled.
(e) Reliance. The Operating Partnership and the Agents agree
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that any Notes purchased by one or more Agents as principal shall be
purchased, and any Notes the placement of which an Agent arranges as agent
shall be placed by such Agent, in reliance on the representations,
warranties, covenants and agreements of the Operating Partnership contained
herein and on the terms and conditions and in the manner provided herein.
3. REPRESENTATIONS AND WARRANTIES OF THE TRANSACTION ENTITIES. Each
of the Transaction Entities jointly and severally represents and warrants to the
Agents as of the date hereof, as of the date of each acceptance by the Operating
Partnership of an offer for the purchase of Notes (whether to an Agent as
principal or through an Agent as agent), as of the date of each delivery of
Notes (whether to an Agent as principal or through an Agent as agent) (the date
of each such delivery to an Agent as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented as follows:
(a) The Operating Partnership has filed with the Commission a
registration statement on Form S-3 (File No. 333-51675) for the
registration of debt securities, including the Notes, under the Securities
Act, and the offering thereof from time to time in accordance with Rule
430A or Rule 415 of the Securities Act Rules and Regulations. Such
registration statement has been declared effective by the Commission. The
Prospectus Supplement setting forth the terms of the offer of the Notes
contemplated by this Distribution Agreement, and additional information
concerning the Transaction Entities has been or will be prepared and will
be filed by the Operating Partnership pursuant to Rule 424(b) of the
Securities Act Rules and Regulations, on or before the second business day
after it is first used in connection with the offer and sale of Notes under
this Distribution Agreement (or such earlier time as may be required by the
Securities Act Rules and Regulations).
(b) Each part of the Registration Statement, when such part
became or becomes effective, and the Prospectus and any amendment or
supplement to such Registration Statement or such Prospectus, on the date
of filing thereof with the Commission and as of the date hereof, conformed
or will conform in all material respects with the requirements of the
Securities Act and the Securities Act
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Rules and Regulations; the Indenture, on the date of filing thereof with
the Commission and as of the date hereof conformed or will conform in all
material respects with the requirements of the Trust Indenture Act of 1939,
as amended, and the rules and regulations of the Commission thereunder (the
"TIA"); each part of the Registration Statement, when such part became or
becomes effective did not or 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; the
Prospectus and any amendment or supplement thereto, on the date of filing
thereof with the Commission and as of the date hereof did not or will not
include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing shall not apply to (i) that part of the Registration Statement
which constitutes the Statement of Eligibility and Qualification under the
TIA and (ii) statements in, or omissions from, any such document in
reliance upon, and in conformity with, information concerning the Agents
that was furnished to the Transaction Entities by the Agents specifically
for use in the preparation thereof.
(c) To the best of the Transaction Entities' knowledge, the
accountants who certified the financial statements and supporting schedules
included or incorporated by reference in the Registration Statement and
Prospectus are independent public accountants as required by the Securities
Act and the Securities Act Rules and Regulations.
(d) The documents incorporated by reference in the Registration
Statement, the Prospectus and any amendment or supplement to such
Registration Statement or such Prospectus, when they became or become
effective under the Securities Act or were or are filed with the Commission
under the Exchange Act, as the case may be, conformed or will conform in
all material respects with the requirements of the Securities Act, the
Securities Act Rules and Regulations, the Exchange Act and the rules and
regulations of the Commission thereunder (the "Exchange Act Rules and
Regulations"), as applicable.
(e) The financial statements of the Operating Partnership set
forth or incorporated by reference in the Registration Statement and
Prospectus fairly present the financial condition of the Operating
Partnership as of the dates indicated and the results of operations and
changes in financial position for the periods therein specified in
conformity with generally accepted accounting principles consistently
applied through the periods involved (except as
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otherwise stated therein). The summary financial, pro forma financial and
statistical data included or incorporated by reference in the Registration
Statement and the Prospectus present fairly the information shown therein
and, to the extent based upon or derived from the financial statements,
have been compiled on a basis consistent with the financial statements
presented therein. No other financial statements are required to be set
forth in the Registration Statement or the Prospectus under the Securities
Act or the Securities Act Rules and Regulations.
(f) The only subsidiaries (as defined in the Securities Act Rules
and Regulations) of the Transaction Entities are the subsidiaries listed on
Schedule II hereto (the "Subsidiaries"). Each of the Transaction Entities
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and each of their Subsidiaries has been duly incorporated or formed, as the
case may be, and is an existing corporation or general or limited
partnership, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or formation, as the case may be. Each of
the Transaction Entities and each of its Subsidiaries has full power and
authority (corporate and other) to conduct its business as described in the
Registration Statement and Prospectus, and is duly qualified to do business
in each jurisdiction in which it owns or leases real property or in which
the conduct of its business requires such qualification, except where the
failure to be so qualified, considering all such cases in the aggregate,
does not involve a material risk to the business, properties, financial
position or results of operations of the Transaction Entities taken as a
whole; and, other than the Subsidiaries, the Transaction Entities own no
material amounts of stock or beneficial interest in any corporation,
partnership, joint venture or other business entity and do not own 10% or
more of the outstanding voting stock of any entity separately taxable as a
corporation under the Internal Revenue Code of 1986, as amended (the
"Code").
(g) All of the partnership interests of the Operating Partnership
have been duly and validly authorized and issued and are fully paid and
approximately 94% of such partnership interests are owned of record and
beneficially by the Company free and clear of all perfected liens, charges
and encumbrances.
(h) The Notes are as of the date hereof duly authorized by the
Transaction Entities for issuance and sale pursuant to this Distribution
Agreement and the Indenture; and when duly authenticated and delivered by
the Trustee in accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee),
against payment of the consideration therefor, will be valid and legally
binding
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obligations of the Operating Partnership entitled to the benefit of
the Indenture and will be enforceable against the Operating Partnership in
accordance with their terms, except to the extent that enforcement thereof
may be limited by (i) bankruptcy, insolvency, 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)
(together, the "Enforceability Limitations") and the execution, delivery
and performance of any of such agreements did not and will not, at the time
of execution and delivery, and does not and will not constitute a breach
of, or a default under, the charter, bylaws or partnership agreement, as
the case may be, of either of the Transaction Entities or any of their
Subsidiaries or any material contract, lease or other instrument to which
the Transaction Entities or any of their Subsidiaries is a party or to
which any of their property may be bound or any law, administrative
regulation or administrative or court decree, except for such breaches or
defaults which individually or in the aggregate do not involve a material
risk to the business, properties, financial position or results of
operations of the Transaction Entities taken as a whole; the Indenture has
been duly qualified under the TIA and prior to the issuance of the Notes
will be duly authorized, executed and delivered by the Operating
Partnership, and assuming due authorization, execution and delivery thereof
by the Trustee, will constitute a valid and legally binding obligation of
the Operating Partnership, enforceable against the Operating Partnership in
accordance with its terms, subject to the Enforceability Limitations; the
Notes and the Indenture will conform in all material respects to the
statements relating thereto contained in the Prospectus; and the Notes are,
in all material respects, in the form contemplated by the Indenture. Upon
payment of the purchase price and delivery of the Notes in accordance with
this Distribution Agreement, each of the purchasers thereof will receive
good, valid and marketable title to such Notes, free and clear of all
liens, charges and encumbrances.
(i) At the time of each Settlement Date, the Notes will be rated
at least Baa3 by Moody's Investors Service, Inc. ("Moody's") and at least
BBB- by Standard & Poor's Ratings Service ("S&P" and, together with
Moody's, the "Rating Agencies"), or such other rating as to which the
Operating Partnership shall have most recently notified the Agents pursuant
to Section 5(b)(iv) hereof.
(j) Except as contemplated in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Transaction Entities have not incurred
any
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liabilities or obligations, direct or contingent, or entered into any
transactions, not in the ordinary course of business, that are material to
the Transaction Entities on a consolidated basis, and there has not been
any material change in the capital stock, short-term debt or long-term debt
of the Transaction Entities, or any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or other), business, prospects, net worth or results
of operations of the Transaction Entities on a consolidated basis.
(k) Except as set forth in the Prospectus, there is not pending
or, to the knowledge of the Transaction Entities, threatened any action,
suit or proceeding to which any of the Transaction Entities is a party,
before or by any court or governmental agency or body, that might result in
any material adverse change in the condition (financial or other),
business, prospects, net worth or results of operations of the Transaction
Entities, or might materially and adversely affect the properties or assets
thereof.
(l) There are no contracts or documents of the Transaction
Entities that are required to be filed as exhibits to the Registration
Statement or to any of the documents incorporated by reference therein by
the Securities Act or the Exchange Act or by the Securities Act Rules and
Regulations or the Exchange Act Rules and Regulations that have not been so
filed.
(m) This Distribution Agreement has been duly executed, delivered
and will be performed by each of the Transaction Entities, and the
Indenture has been duly authorized, executed, delivered and performed by
the Operating Partnership. The execution of this Distribution Agreement
and the Indenture and the consummation of the transactions herein and
therein contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any statute, any
agreement or instrument to which either of the Transaction Entities is a
party or by which it is bound or to which any of the property of either of
the Transaction Entities is subject, the charter, or bylaws or partnership
agreement, as the case may be, of either of the Transaction Entities, or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over either of the Transaction Entities or any of their
properties; no consent, approval, authorization or order of, or filing
with, any court or governmental agency or body is required for the
consummation of the transactions contemplated by this Distribution
Agreement and the Indenture in connection with the issuance or sale of the
Notes by the Operating Partnership, except such as may be required under
the
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Securities Act, the TIA or state securities laws; and the Operating
Partnership has full power and authority to authorize, issue and sell the
Notes as contemplated by this Distribution Agreement and the Indenture,
free of any preemptive or similar rights.
(n) The Transaction Entities have complied in all respects with
all laws, regulations and orders applicable to them or their respective
businesses; the Transaction Entities are not in default under any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond debenture, note agreement or evidence of indebtedness, lease, contract
or other agreement or instrument to which either of the Transaction
Entities is a party or by which either of the Transaction Entities or any
of their properties are bound, the violation of which would individually or
in the aggregate have a material adverse effect on the Transaction
Entities, and no other party under any such agreement or instrument to
which either of the Transaction Entities is a party, to the knowledge of
the Transaction Entities, is in default in any material respect thereunder;
and neither of the Transaction Entities is in violation of their
organizational documents.
(o) Except as described in the Prospectus, and except for defects
or exceptions that are not material in relation to the business of the
Transaction Entities, their Subsidiaries and Related Entities (as defined
below), taken as a whole: (i) the Transaction Entities and each of their
Subsidiaries and any partnership or joint venture in which such party is a
participant (a "Related Entity") have good and marketable title to all of
the Properties (as defined in the Prospectus), subject to the exceptions
noted in the general warranty deeds issued in connection with the transfer
of each property to the Operating Partnership; (ii) the Operating
Partnership, its Subsidiaries and Related Entities have valid, subsisting
and enforceable (subject to the Enforceability Limitations) leases for the
properties described in the Prospectus as leased by them; (iii) no tenant
under any of the leases pursuant to which the Operating Partnership, its
Subsidiaries and Related Entities lease their Properties has an option or
right of first refusal to purchase the premises demised under such lease;
(iv) to the knowledge of the Transaction Entities, the use and occupancy of
each of the Properties of the Operating Partnership, its Subsidiaries and
Related Entities complies in all material respects with all applicable
codes and zoning laws and regulations; (v) the Operating Partnership, its
Subsidiaries and Related Entities have no knowledge of any pending or
threatened condemnation or zoning change that will in any material respect
affect the size of, use of, improvement of, construction on, or access to
any of the Properties of the
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Operating Partnership, its Subsidiaries or Related Entities; and (vi) the
Operating Partnership, its Subsidiaries and Related Entities have no
knowledge of any pending or threatened proceeding or action that will in
any manner materially affect the size of, use of, improvements on,
construction on, or access to any of the Properties of the Operating
Partnership, its Subsidiaries or Related Entities.
(p) Title insurance in favor of the mortgagee, the Transaction
Entities, their Subsidiaries and Related Entities is maintained with
respect to each of the Properties owned by the Transaction Entities, their
Subsidiaries and Related Entities, as shown in the Prospectus, in an amount
at least equal to the greater of (i) the cost of acquisition of such
property and (ii) the cost of construction by the Transaction Entities,
their Subsidiaries or Related Entities of the improvements located on such
property (measured at the time of such construction), except, in each case,
where the failure to maintain such title insurance would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Transaction
Entities, their Subsidiaries and Related Entities taken as a whole.
(q) The mortgages and deeds of trust encumbering the Properties
and assets described in the Prospectus are not convertible, nor do the
Operating Partnership or its Subsidiaries hold a participating interest
therein.
(r) Except as set forth in the Prospectus, none of the
Transaction Entities has any knowledge of (i) the unlawful presence of any
hazardous substances, hazardous materials, toxic substances or waste
materials (collectively, "Hazardous Materials") on any of the Properties,
or (ii) any unlawful spills, releases, discharges or disposal of Hazardous
Materials that have occurred or are presently occurring off such Properties
as a result of any construction on or operation and use of such Properties,
which presence or occurrence would have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Transaction Entities taken as whole. In
connection with the construction on or operation and use of the Properties
owned by the Transaction Entities, each of the Transaction Entities
represents that, as of the date of this Distribution Agreement, it has no
knowledge of any failure to comply with all applicable local, state and
federal environmental laws, regulations, ordinances and administrative and
judicial orders relating to the generation, recycling, sale, storage,
handling, transport and disposal of any Hazardous Materials, which failure
would have a material adverse effect on the
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condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Transaction Entities taken as a whole.
(s) Property and casualty insurance in favor of each of the
Transaction Entities and each of their Subsidiaries is maintained with
respect to each of the properties owned by each of them in an amount and on
such items as is reasonable and customary for businesses of this type.
(t) Each Transaction Entity has filed all federal, state and
foreign income tax returns which have been required to be filed and has
paid all taxes indicated by said returns and all material assessments
received by it to the extent that such taxes have become due, other than
taxes and assessments which are being contested in good faith or for which
adequate reserves have been established in accordance with generally
accepted accounting principles.
(u) The Operating Partnership is classified as a partnership (and
is not taxed as a corporation) for federal income tax purposes.
(v) Each Transaction Entity holds all material licenses,
certificates and permits from governmental authorities which are necessary
to the conduct of its business; and neither of the Transaction Entities
have infringed any patents, patent rights, trade names, trademarks or
copyrights, which infringement is material to the business of the Operating
Partnership as a whole.
(w) For all applicable tax years as to which the Company's tax
returns are subject to audit and the Company is subject to assessment for
taxes reportable therein, the Company has continuously been organized and
operating in conformity with the requirements for qualification as a real
estate investment trust under the Code. The Company's method of operation
will permit it to continue to meet the requirements for taxation as a real
estate investment trust under the Code. The Company has no intention of
changing its operations or engaging in activities which would adversely
affect its ability to qualify, or make economically undesirable its
continued qualification as, a real estate investment trust.
(x) Neither Transaction Entity or any of their Subsidiaries, is
an "investment company" within the meaning of the Investment Company Act of
1940, as amended.
(y) Each of the partnership and joint venture agreements to which
either of the Transaction Entities
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is a party, and which relates to real property described in the
Prospectus, has been duly authorized, executed and delivered by such
applicable party and constitutes the valid agreement thereof, enforceable
in accordance with its terms, subject to the Enforceability Limitations,
and the executing, delivery and performance of any of such agreements did
not and will not, at the time of execution and delivery, and does not and
will not constitute a breach of, or a default under, the charter,
partnership agreement or bylaws of either of the Transaction Entities or
any material contract, lease or other instrument to which the Transaction
Entities or any of their Subsidiaries is a party or to which any of their
property may be bound or any law, administrative regulation or
administrative or court decree.
(z) No holder of any security of the Operating Partnership has
the right to have any security owned by such holder included for
registration in the Registration Statement or to demand registration of any
security owned by such holder during the 180 days after the date of this
Distribution Agreement.
(aa) The Operating Partnership satisfies all conditions and
requirements for the use of a Registration Statement on Form S-3 under the
Securities Act and the Securities Act Rules and Regulations.
(bb) At all times from January 1, 1990, through August 6,
1998 Mid-America Realty Investments, Inc. ("Mid-America") qualified as a
"real estate investment trust" under the Code;
4. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Unless otherwise agreed by an Agent
----------------------
and the Operating Partnership, Notes shall be purchased by such Agent as
principal. Such purchases shall be made in accordance with terms agreed
upon by one or more Agents and the Operating Partnership (which terms,
unless otherwise agreed, shall, to the extent applicable, include those
terms specified in Exhibit A hereto and be agreed upon orally, with written
---------
confirmation prepared by such Agent or Agents and mailed to the Operating
Partnership). An Agent's commitment to purchase Notes as principal shall
be deemed to have been made on the basis of the representations and
warranties of the Operating Partnership herein contained and shall be
subject to the terms and conditions herein set forth. Unless the context
otherwise requires, references herein to "this Distribution Agreement"
shall include the agreement of one or more Agents to purchase Notes from
the Operating Partnership as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a
13
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discount from the principal amount of each such Note equivalent to the
applicable commission set forth in Schedule I hereto. The Agents may engage
----------
the services of any other broker or dealer in connection with the resale of
the Notes purchased by them as principal and may allow any portion of the
discount received in connection with such purchases from the Operating
Partnership to such brokers and dealers. At the time of each purchase of
Notes by one or more Agents as principal, the Operating Partnership and
such Agent or Agents shall agree and specify orally, confirmed in writing,
whether any stand-off provision (as referred to in Section 5(q) hereof) or
any officers' certificate, opinion of counsel or comfort letter (as
referred to in Sections 8(b), 8(c) and 8(d) hereof) will be required. If
the Operating Partnership and two or more Agents enter into an agreement
pursuant to which such Agents agree to purchase Notes from the Operating
Partnership as principal and one or more of such Agents shall fail at the
Settlement Date to purchase the Notes which it or they are obligated to
purchase (the "Defaulted Notes"), then the nondefaulting Agents shall have
the right, within 24 hours thereafter, to make arrangements for one of them
or one or more other Agents or underwriters to purchase all, but not less
than all, of the Defaulted Notes in such amounts as may be agreed upon and
upon the terms herein set forth; provided, however, that if such
--------- -------
arrangements shall not have been completed within such 24-hour period,
then:
(i) if the aggregate principal amount of Defaulted Notes
does not exceed 10% of the aggregate principal amount of Notes to be
so purchased by all of such Agents on the Settlement Date, the
nondefaulting Agents shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective initial underwriting obligations bear to the underwriting
obligations of all nondefaulting Agents; or
(ii) if the aggregate principal amount of Defaulted Notes
exceeds 10% of the aggregate principal amount of Notes to be so
purchased by all of such Agents on the Settlement Date, such agreement
shall terminate without liability on the part of any nondefaulting
Agent.
No action taken pursuant to this paragraph shall relieve any defaulting
Agent from liability in respect of its default. In the event of any such
default which does not result in a termination of such agreement, either
the nondefaulting Agents or the Operating Partnership shall have the right
to postpone the Settlement Date for a period not exceeding seven days in
order to effect any required changes in the Registration
14
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Statement or the Prospectus or in any other documents or arrangements.
(b) Solicitations as Agent. On the basis of the representations
----------------------
and warranties herein contained, but subject to the terms and conditions
herein set forth, when agreed by the Operating Partnership and an Agent,
such Agent, as an agent of the Operating Partnership, will use its
reasonable efforts to solicit offers to purchase the Notes upon the terms
and conditions set forth herein and in the Prospectus. The Agents are not
authorized to appoint sub-agents with respect to Notes sold through them as
agents. All Notes sold through an Agent as agent will be sold at 100% of
their principal amount unless otherwise agreed to by the Operating
Partnership and such Agent.
The Operating Partnership reserves the right, in its sole
discretion, to suspend solicitation of offers for the purchase of Notes
through an Agent, as agent, commencing at any time for any period of time
or permanently. Within one business day after receipt of instructions from
the Operating Partnership, such Agent will suspend solicitation of offers
for the purchase of Notes from the Operating Partnership until such time as
the Operating Partnership has advised such Agent that such solicitation may
be resumed. During the period of time that such solicitation is suspended,
the Transaction Entities shall not be required to deliver, or cause to be
delivered, any opinions, letters, or certificates in accordance with
Section 8 hereof, provided that if the Registration Statement or Prospectus
is amended or supplemented during the period of suspension (other than by
an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered
for the Notes or for a change that the Agents deem to be immaterial). No
Agent shall be required to resume soliciting offers to purchase Notes until
the Transaction Entities have delivered, or cause to be delivered, such
opinions, letters and certificates in accordance with Section 8 hereof or
as such Agent may reasonably request.
Upon settlement, the Operating Partnership agrees to pay each
Agent a commission, in the form of a discount from the purchase price of
such Note in an amount equal to the applicable percentage of the principal
amount of each Note sold by the Operating Partnership as a result of a
solicitation made by such Agent as set forth in Schedule I hereto.
----------
(c) Administrative Procedures. The purchase price, interest rate
--------------------------
or formula, maturity date and other terms of the Notes (as applicable)
specified in Exhibit A hereto shall be agreed upon by the Operating
---------
Partnership and
15
<PAGE>
the applicable Agent or Agents and specified in a Pricing Supplement to
the Prospectus to be prepared by the Operating Partnership in connection
with each sale of Notes. Except as otherwise specified in the applicable
Pricing Supplement, the Notes will be issued in denominations of U.S.
$1,000 or any larger amount that is an integral multiple of U.S. $1,000.
Administrative procedures with respect to the issuance and sale of Notes
shall be agreed upon from time to time by the Operating Partnership, the
Agents and the Trustee (the "Procedures"), and initially such Procedures
shall be as set forth in Exhibit B hereto. The Agents and the Operating
---------
Partnership agree to perform, and the Operating Partnership agrees to cause
the Trustee to agree to perform, their respective duties and obligations
specifically provided to be performed by them in the Procedures.
5. COVENANTS OF THE TRANSACTION ENTITIES. Each of the Transaction
Entities jointly and severally covenants and agrees with the Agents to:
(a) Cause the Prospectus to be filed pursuant to Rule 424(b) of
the Securities Act Rules and Regulations on or before the second business
day after the date hereof (or such earlier time as may be required by the
Securities Act Rules and Regulations) (but only if the Agents or your
counsel have not reasonably objected thereto by notice to the Transaction
Entities after having been furnished a copy a reasonable time prior to
filing) and will notify the Agents promptly of such filing. During the
period in which a prospectus relating to the Notes is required to be
delivered under the Securities Act, the Transaction Entities will (i)
notify the Agents promptly of the time when any subsequent amendment to the
Registration Statement has become effective or any supplement to the
Prospectus has been filed and of any request by the Commission for any
amendment or supplement to the Registration Statement or Prospectus or for
additional information, (ii) prepare and file with the Commission, promptly
upon your request, any amendments or supplements to the Registration
Statement or Prospectus that, in your opinion, may be necessary or
advisable in connection with your distribution of the Notes, and (iii) file
no amendment or supplement to the Registration Statement or Prospectus
(other than any document required to be filed under the Exchange Act that
upon filing is deemed to be incorporated by reference therein) to which the
Agents or your counsel shall reasonably object by notice to the Transaction
Entities after having been furnished a copy a reasonable time prior to the
filing.
(b) Advise you, promptly after either Transaction Entity shall
receive notice or obtain knowledge thereof, (i) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, (ii) of the
16
<PAGE>
suspension of the qualification or registration of the Notes for offering
or sale in any jurisdiction, (iii) of the initiation or threatening (in
writing) of any proceeding for any such purpose or (iv) of any change in
the rating assigned by the Rating Agencies or any other nationally
recognized statistical rating organization to any debt securities
(including the Notes) of the Operating Partnership, or the public
announcement by any nationally recognized statistical rating organization
that it has under surveillance or review, with possible negative
implications, its rating of any such debt securities, or the withdrawal by
any nationally recognized statistical rating organization of its rating of
such debt securities; and the Transaction Entities will promptly use their
best efforts to prevent the issuance of any stop order or to obtain its
withdrawal if such a stop order should be issued.
(c) Comply with all requirements imposed upon them by the
Securities Act, the Securities Act Rules and Regulations, the Exchange Act,
the Exchange Act Rules and Regulations and the TIA as from time to time in
force, so far as necessary to permit the continuance of sales of, or
dealings in, the Notes as contemplated by the provisions hereof and the
Prospectus. If during such period any event occurs as a result of which,
in the opinion of your counsel, the Registration Statement contains an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period it is
necessary to amend or supplement the Registration Statement or Prospectus
to comply with the Securities Act, the Transaction Entities will promptly
notify the Agents and will amend or supplement the Registration Statement
or Prospectus (at the expense of the Transaction Entities) so as to correct
such statement or omission or effect such compliance.
(d) Furnish to the Agents copies of the Registration Statement,
the Prospectus (including all documents incorporated by reference therein)
and all amendments and supplements to the Registration Statement and
Prospectus that are filed with the Commission during the period in which a
prospectus relating to the Notes is required to be delivered under the
Securities Act (including all documents filed with the Commission during
such period that are deemed to be incorporated by reference therein), in
each case as soon as available and in such quantities as the Agents may
from time to time reasonably request.
17
<PAGE>
(e) Furnish the Agents with copies of filings of the Transaction
Entities under the Securities Act and Exchange Act and with all other
financial statements and reports it distributes generally to the holders of
any class of its capital stock during the period of five years commencing
on the date upon which the Prospectus Supplement is filed pursuant to Rule
424(b) of the Securities Act Rules and Regulations.
(f) Make generally available to its security holders as soon as
practicable and in the manner contemplated by Rule 158 of the Securities
Act Rules and Regulations, but in any event not later than 15 months after
the end of the Transaction Entity's current fiscal quarter, an earning
statement (which need not be audited) covering a 12-month period beginning
after the date upon which the Prospectus is filed pursuant to Rule 424(b)
of the Securities Act Rules and Regulations that shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 of the
Securities Act Rules and Regulations and will advise the Agents in writing
when such statement has been made available.
(g) Pay, or reimburse if paid by you, whether or not the
transactions contemplated by this Distribution Agreement are consummated or
this Distribution Agreement is terminated, all costs and expenses incident
to the performance of the obligations of the Transaction Entities under
this Distribution Agreement, including but not limited to costs and
expenses of or relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits thereto, the Prospectus and any
amendment or supplement to the Registration Statement or the Prospectus,
(ii) the word processing and reproduction of the Indenture and the Notes,
(iii) the costs incurred by the Transaction Entities in furnishing
(including costs of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto, as may be requested for use in connection with the offering and
sale of the Notes by the Agents or by dealers to whom Notes may be sold,
(iv) any registration or qualification of the Notes for offer and sale
under the securities or blue sky laws of such jurisdictions designated by
you, including the reasonable fees, disbursements and other charges of your
counsel in connection therewith, and the preparation of a blue sky
memoranda, (iv) the fees charged by each of the Rating Agencies for the
rating of the Notes at the request of the Operating Partnership, (v)
counsel to the Transaction Entities, (vi) the transfer agent for the Notes,
(vii) the costs and expenses of the Trustee under the Indenture and (viii)
KPMG Peat Marwick LLP ("KPMG") or any other accountants engaged by the
Transaction Entities in connection with the offering of the Notes.
18
<PAGE>
(h) Qualify the Notes for offering and sale under the applicable
securities laws and real estate syndication laws of such states and other
jurisdictions of the United States as the Agents may designate as
necessary, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Notes; provided, however, that
-------- -------
the Operating Partnership shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Operating Partnership
will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided.
The Operating Partnership will promptly advise the Agents of the receipt by
the Operating Partnership of any notification with respect to the
suspension of the qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(i) Not take, at any time, directly or indirectly, other than in
connection with this Distribution Agreement, any action designed to
stabilize, or which might reasonably be expected to cause or result in, or
which has constituted or which might reasonably be expected to constitute
the stabilization of, the price of the Notes.
(j) Take all reasonable action necessary to enable the Rating
Agencies to provide their respective credit ratings of the Notes.
(k) Execute and deliver the Supplemental Indenture designating
the Notes as the debt securities to be offered, and its terms and
provisions in accordance with the provisions of the Indenture.
(l) Apply the net proceeds to the Operating Partnership from the
sale of the Notes by the Operating Partnership as set forth under the
caption "Use of Proceeds" in the Prospectus.
(m) Prepare, with respect to any Notes to be sold to or through
an Agent or Agents pursuant to this Distribution Agreement, a Pricing
Supplement with respect to such Notes in a form previously approved by such
Agent or Agents. The Operating Partnership will deliver such Pricing
Supplement no later than 11:00 a.m., New York City time, on the business
day following the date of the Operating Partnership's acceptance of the
offer for the purchase of such Notes and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the Securities Act not later than the
close of business of the Commission on the fifth business day after the
date on which such Pricing Supplement is first used.
19
<PAGE>
(n) Furnish, within two (2) business days following the date on
which there shall be released to the general public interim financial
statement information related to either of the Transaction Entities with
respect to each of the first three quarters of any fiscal year or
preliminary financial statement information with respect to any fiscal
year, such information to the Agents, and cause the Prospectus to be
amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding
thereof and as shall be required by the Securities Act or the Securities
Act Rules and Regulations.
(o) Furnish, within two (2) business days following the date on
which there shall be released to the general public financial information
included in or derived from the audited financial statements of either of
the Transaction Entities for the preceding fiscal year, such information to
the Agents, and cause the Registration Statement and the Prospectus to be
amended, whether by the filing of documents pursuant to the Exchange Act or
the Securities Act or otherwise, to include or incorporate by reference
such audited financial statements and the report or reports, and consent or
consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an understanding of
such financial statements and as shall be required by the Securities Act or
the Securities Act Rules and Regulations.
(p) Use its best efforts to ensure that the Company meets the
requirements to qualify as a "real estate investment trust" under the Code
for the taxable year in which sales of the Notes are to occur, unless
otherwise specified in the Prospectus.
(q) If requested by any Agent in connection with a purchase by it
of Notes as principal in accordance with Section 4(a) hereof, cause such
transaction to be subject to the terms of such stand-off provision as shall
be agreed by the Operating Partnership and such Agent at the time of such
agreement to purchase Notes as principal.
6. CONDITIONS OF AGENTS' OBLIGATIONS AT THE CLOSING. The obligations
of the Agents to purchase Notes as principal and to solicit offers for the
purchase of Notes as agent of the Operating Partnership, and the obligations of
any purchasers of the Notes sold through an Agent as agent, shall be subject to
the accuracy of the representations and warranties of the Transaction Entities
herein and to accuracy of the statements of the officers of the
20
<PAGE>
Company, as general partner of the Operating Partnership, made in any
certificate furnished pursuant to the provisions hereof, to the performance and
observance by each Transaction Entity of all its covenants and agreements
contained herein and to the following additional conditions precedent:
(a) The Agents shall have received the opinion of Goodwin,
Procter & Hoar LLP, counsel for both of the Transaction Entities, dated the
date hereof, to the effect that:
(i) Each of the Transaction Entities and each of their
Subsidiaries has been duly incorporated or formed, as the case may be,
and is validly existing as a corporation or general or limited
partnership or limited liability company, as the case may be, and in
good standing under the laws of its jurisdiction of incorporation or
formation, as the case may be, has full power and authority to conduct
its business as described in the Registration Statement and
Prospectus, and is duly qualified to do business in each jurisdiction
in which it owns or leases real property or in which the conduct of
its business requires such qualification, except where the failure to
be so qualified, considering all such cases in the aggregate, does not
involve a material risk to the business, properties, financial
position or results of operations of the Transaction Entities taken as
a whole;
(ii) All of the partnership units of the Operating
Partnership (as disclosed in the Prospectus) owned by the Company are
owned by the Company free and clear of all perfected liens, charges
and encumbrances;
(iii) The Operating Partnership has the authorized, issued
and outstanding debt, and partnership units as set forth under the
caption "Capitalization" in the Prospectus and in its Quarterly Report
on Form 10-Q for the quarter ended June 30, 1998; and all of the
outstanding partnership units of the Operating Partnership are validly
issued and paid for in conformity with the applicable provisions of
the Operating Partnership Agreement relating to such units and, to the
knowledge of such counsel, none of them was issued in violation of any
preemptive or other similar right;
(iv) The issuance of the Notes has been duly authorized by
the Operating Partnership and, when duly authenticated and delivered
by the Trustee in accordance with the terms of the Indenture (assuming
the
21
<PAGE>
due authorization, execution and delivery of the Indenture by the Trustee),
and issued and sold pursuant to this Distribution Agreement, such Notes
will constitute valid and legally binding obligations of the Operating
Partnership entitled to the benefits provided for in the Indenture and will
be enforceable against the Operating Partnership in accordance with their
terms, subject to the Enforceability Limitations. Upon payment of the
purchase price and delivery of the Notes in accordance with this
Distribution Agreement, each of the purchasers thereof will receive good,
valid and marketable title to such Notes, free and clear of all liens,
charges and encumbrances;
(v) To the knowledge of such counsel, no holder of any
security of the Operating Partnership has the right to have any
security owned by such holder included for registration in the
Registration Statement or to demand registration of any security owned
by such holder during the 180 days after the date of this Distribution
Agreement;
(vi) The Registration Statement has become effective under
the Securities Act, the Indenture has been qualified under the TIA,
the Prospectus has been filed as required by Section 5(a) hereof and,
to the best knowledge of such counsel, after due inquiry, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or
threatened by the Commission;
(vii) Each part of the Registration Statement, when such
part became effective, and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission
and as of the date hereof, complied and comply as to form in all
material respects with the requirements of the Securities Act and the
Securities Act Rules and Regulations; and the documents incorporated
by reference in the Registration Statement or Prospectus or any
amendment or supplement thereto, when they became effective under the
Securities Act or were filed with the Commission under the Exchange
Act, as the case may be, complied as to form in all material respects
with the requirements of the Securities Act or the Exchange Act, as
applicable, and the Securities Act or Exchange Act Rules and
Regulations, as applicable; it being understood that such counsel need
express no opinion as to the financial statements or other financial
data included in any other documents mentioned in this clause;
22
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(viii) The descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings, contracts
and other documents are accurate and fairly present the information
required to be shown; and such counsel does not know of any statutes
or legal or governmental proceedings required to be described in the
Prospectus that are not described as required, or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus (or required to be filed under the Exchange
Act if upon such filing they would be incorporated by reference
therein) or to be filed as exhibits to the Registration Statement that
are not described and filed as required;
(ix) This Distribution Agreement has been duly and validly
authorized, executed and delivered by each of the Company and the
Operating Partnership and assuming due authorization, execution and
delivery thereof by the Agents, will constitute a valid and legally
binding agreement of each of the Company and the Operating
Partnership, enforceable against each of the Company and the Operating
Partnership in accordance with its terms, subject to the
Enforceability Limitations; the due authorization, execution and
delivery of this Distribution Agreement, the performance of the
obligations set forth herein, and the consummation of the transactions
contemplated hereby by each of the Company and the Operating
Partnership will not conflict with or constitute a breach or violation
by either the Company or the Operating Partnership of, or default
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Transaction Entities or
their Subsidiaries pursuant to any contract, indenture, mortgage, loan
agreement, note, lease, joint venture or partnership agreement or
other instrument or agreement known to such counsel to which either
the Company, the Operating Partnership or any of their Subsidiaries is
a party or by which they, any of their respective properties or other
assets or any property may be bound or subject except for breaches,
violations or defaults which individually or in the aggregate do not
involve a material risk to the business, properties, financial
position or results of operation of the Transaction Entities and their
Subsidiaries taken as a whole; nor will such action conflict with or
constitute a breach or violation by either the Company or the
Operating Partnership of, or default under, (A) the charter, by-laws,
certificate of limited partnership or partnership agreement, as the
case may be, of the Company, the Operating Partnership or any
Subsidiary or (B) any applicable Federal law, Massachusetts law, New
23
<PAGE>
York law, the Delaware Revised Uniform Limited Partnership Act, the
Maryland General Corporation Law or any other applicable law, rule,
order, administrative regulation or administrative or court decree
known to such counsel;
(x) The Indenture has been duly and validly authorized,
executed and delivered by the Operating Partnership and assuming due
authorization, execution and delivery thereof by the Trustee, will
constitute a valid and legally binding agreement of the Operating
Partnership, enforceable against the Operating Partnership in
accordance with its terms, subject to the Enforceability Limitations;
the due authorization, execution and delivery of the Indenture, the
performance of the obligations set forth therein, and the consummation
of the transactions contemplated thereby by each of the Company and
the Operating Partnership will not conflict with or constitute a
breach or violation by either the Company or the Operating Partnership
of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Transaction Entities or their Subsidiaries pursuant to any contract,
indenture, mortgage, loan agreement, note, lease, joint venture or
partnership agreement or other instrument or agreement known to such
counsel to which either the Company, the Operating Partnership or any
of their Subsidiaries is a party or by which they, any of their
respective properties or other assets or any property may be bound or
subject except for breaches, violations or defaults which individually
or in the aggregate do not involve a material risk to the business,
properties, financial position or results of operation of the
Transaction Entities and their Subsidiaries taken as a whole; nor will
such action conflict with or constitute a breach or violation by
either the Company or the Operating Partnership of, or default under,
(A) the charter, by-laws, certificate of limited partnership or
partnership agreement, as the case may be, of the Company, the
Operating Partnership or any Subsidiary or (B) any applicable Federal
law, Massachusetts law, New York law, the Delaware Revised Uniform
Limited Partnership Act, the Maryland General Corporation Law or any
other applicable law, rule, order, administrative regulation or
administrative or court decree; and the Indenture has been duly
qualified under the TIA known to such counsel;
(xi) The Indenture and the Notes conform in all material
respects to the descriptions thereof in the Registration Statement and
the Prospectus
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<PAGE>
under the captions "Description of Debt Securities" and "Description
of Notes", respectively;
(xii) For all applicable tax years as to which the Company's
tax returns are subject to audit and the Company is subject to
assessment for taxes reportable therein, the Company has continuously
been organized and operated in conformity with the requirements for
qualification as a "real estate investment trust" under the Code;
(xiii) At all times from January 1, 1990, through August 6,
1998 Mid-America qualified as a "real estate investment trust" under
the Code;
(xiv) None of the Transaction Entities or their
subsidiaries is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(xv) The Operating Partnership is classified as a
partnership (and is not taxed as a corporation) for federal income tax
purposes; and
(xvi) The Operating Partnership satisfies all conditions and
requirements for the use of a Registration Statement on Form S-3 under
the Securities Act and the Securities Act Rules and Regulations.
Such counsel shall also include a statement in such opinion to the effect that:
(i) Such counsel has reviewed the Registration Statement and
the Prospectus and participated in conferences with officers and other
representatives of the Transaction Entities at which contents of the
Registration Statement and related matters were discussed and based on
such review and participation, such counsel has no reason to believe
either that any part of the Registration Statement, when such part
became effective (or, if an amendment to the Registration Statement or
an annual report of Form 10-K has been filed by either of the
Transaction Entities with the Commission subsequent to the
effectiveness of the Registration Statement, then at the time such
amendment became effective or at the time of the most recent such
filing, as the case may be) or as of the date hereof, contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with
25
<PAGE>
the Commission or as of the date hereof, included or include an untrue
statement of a material fact or omitted or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(ii) To the best of such counsel's knowledge and without
such counsel having made any investigation of any governmental records
or court dockets or taken any other similar action, there is no
litigation or governmental or other proceeding or investigation,
before any court or before or by any public body or board pending or,
threatened against, or involving the assets, properties or businesses
of, either or the Transaction Entities or any of their Subsidiaries,
involving the Transaction Entities' or any of their Subsidiaries'
officers or directors or to which any of the Transaction Entities' or
any of their Subsidiaries' properties or other assets is subject which
is required to be described in the Prospectus or would have a material
adverse effect upon the assets or properties, business, results of
operations, prospects or condition (financial or otherwise) of the
Transaction Entities and their Subsidiaries taken as a whole.
(b) The Agents shall have received from Rogers & Wells LLP, your
counsel, such opinion or opinions, dated the date hereof, with respect to the
organization of each of the Transaction Entities, the validity of the Indenture,
the Notes, the Registration Statement, the Prospectus and other related matters
as the Agents reasonably may request, and such counsel shall have received such
documents and information as they request to enable them to pass upon such
matters.
(c) At the date hereof or such other date as may be acceptable to you,
the Agents shall have received a letter from KPMG, dated as of the date hereof,
in form and substance satisfactory to you, to the effect that:
(i) They are independent public accountants with respect to
the Transaction Entities and their Subsidiaries within the meaning of
the Securities Act and the Securities Act Rules and Regulations, and
no information concerning their relationship with or interest in
either of the Transaction Entities is required by Item 10 of the
Registration Statement.
(ii) In their opinion, the financial statements and
supporting schedules examined by them and included or incorporated by
reference in the Registration Statement and Prospectus and audited by
them and covered by their opinions therein comply as to form in all
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material respects with the applicable accounting requirements of the
Securities Act and the Securities Act Rules and Regulations with
respect to registration statements on Form S-3 and the Exchange Act
and the Exchange Act Rules and Regulations.
(iii) They have performed limited procedures, not
constituting an audit, including a reading of the latest available
unaudited interim consolidated financial statements of the Company and
the Operating Partnership, a reading of the minute books of the
Company, inquiries of certain officials of the Company and the
Operating Partnership who have responsibility for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, and on the basis of such limited review and
procedures nothing came to their attention that caused them to believe
that (A) the unaudited financial statements of the Company and the
Operating Partnership included in the Registration Statement, or
incorporated by reference therein, do not comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the Securities Act Rules and Regulations and the
Exchange Act and the Exchange Act Rules and Regulations, or material
modifications are required for them to be presented in conformity with
generally accepted accounting principles, (B) the operating data and
balance sheet data included or incorporated by reference in the
Prospectus were not determined on a basis substantially consistent
with that used in determining the corresponding amounts in the audited
financial statements included or incorporated by reference in the
Registration Statement, (C) the pro forma financial information
included or incorporated by reference in the Registration Statement
was not determined on a basis substantially consistent with that of
the audited financial statements included or incorporated by reference
in the Registration Statement or (D) at a specified date not more than
five days prior to the date hereof, there has been any change in the
capital stock or the number of partnership interests of the Company,
the Operating Partnership or their Subsidiaries, as the case may be,
or any increase in the debt of the Company, the Operating Partnership
or their Subsidiaries or any decrease in the net assets of the
Company, the Operating Partnership or their Subsidiaries, as compared
with the amounts shown in the most recent consolidated balance sheet
of the Company, the Operating Partnership and their Subsidiaries,
included in the Registration Statement or incorporated by reference
therein, or, during the period from the date of the most recent
consolidated statement of operations included in
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the Registration Statement or incorporated by reference therein to a
specified date not more than five days prior to the date hereof, there
were any decreases, as compared with the corresponding period in the
preceding year, in revenues, net income or funds from operations of
the Company, the Operating Partnership and their Subsidiaries, except
in all instances for changes, increases or decreases which the
Registration Statement and the Prospectus disclose have occurred or
may occur.
(iv) In addition to the examination referred to in their
report included in the Registration Statement and the Prospectus and
the limited procedures referred to in clause (iii) above, they have
carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and the
Prospectus and which are specified by the Agents, and have found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the
Transaction Entities and their Subsidiaries identified in such letter.
(d) The Agents shall have received from the Transaction Entities a
certificate, signed by the president or a vice president and by the principal
financial or accounting officer of the Company, dated the date hereof, to the
effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Transaction
Entities in this Distribution Agreement qualified as to materiality
are true and correct in all respects and the representations and
warranties of the Transaction Entities in this Distribution Agreement
that are not so qualified are true and correct in all material
respects, as if made at and as of the date hereof, and the Transaction
Entities have complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
date hereof;
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is threatened, by the Commission; and
(iii) Since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement or Prospectus
that has not been so set forth, and there has been no document
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required to be filed under the Exchange Act and the Exchange Act Rules
and Regulations that upon such filing would be deemed to be
incorporated by reference in the Prospectus that has not been so
filed.
(e) (i) None of the Transaction Entities or their Subsidiaries or
any property shall have sustained since the date of the latest financial
statements included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus or (ii) since such date there shall not have been any change in
the capital stock or long-term debt of either Transaction Entity or any
change, or any development involving a prospective change, in or affecting
any property or the general affairs, management, financial position,
stockholders' or partners' equity, as applicable, or results of operations
of either Transaction Entity, otherwise than as set forth or contemplated
in the Prospectus, the effect of which, in any such case described in
clause (i) or (ii), is, in the reasonable judgment of the Agents, so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Notes on the terms and in
the manner contemplated in the Prospectus.
(f) On the date hereof and on each Settlement Date, counsel to
the Agents shall have been furnished with such other documents and opinions
as such counsel may reasonably require for the purpose of enabling such
counsel to pass upon the issuance and sale of Notes as herein contemplated
and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by either of the Transaction Entities in connection with the issuance
and sale of Notes as herein contemplated shall be satisfactory in form and
substance to the Agents and to counsel to the Agents.
(g) The obligations of the Agents to purchase Notes as principal
will be subject to the following further conditions: (i) the rating
assigned by each of the Rating Agencies, or any other nationally recognized
securities rating agency, to any debt securities of either of the
Transaction Entities as of the date of the agreement to purchase Notes as
principal shall not have been lowered and no such rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its ratings of any debt securities of either of the
Transaction Entities since that date and (ii) there shall
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not have come to the attention of any Agent any facts that would cause such
Agent to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Notes, 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 existing at such
time, not misleading.
(h) If any condition specified in this Section 6 shall not have
been fulfilled when and as required to be fulfilled, this Distribution
Agreement may be terminated by the Agents by notice to the Transaction
Entities at any time and any such termination shall be without liability of
any party to any other party, except that the covenant regarding provision
of an earnings statement set forth in Section 5(f) hereof, the indemnity
and contribution agreements set forth in Section 9 hereof, the provisions
concerning payment of expenses under Section 10 hereof, the provisions
concerning the representations, warranties and agreements to survive
delivery of Section 11 hereof, the provisions relating to parties set forth
in Section 14 and the provisions relating to governing law set forth in
Section 15 hereof shall remain in effect.
7. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through any Agent as agent shall be made by the Operating
Partnership to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Operating Partnership
and deliver such Note to the Operating Partnership and, if such Agent has
theretofore paid the Operating Partnership for such Note, the Operating
Partnership will promptly return such funds to such Agent unless the failure
arose from the gross negligence or willful misconduct of such Agent or from a
default by such Agent in the performance of its obligations hereunder. If such
failure occurred for any reason other than the gross negligence or willful
misconduct of such Agent or from a default by such Agent in the performance of
its obligations hereunder, the Operating Partnership will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Operating Partnership's account.
8. ADDITIONAL COVENANTS OF THE TRANSACTION ENTITIES. Each of the
Transaction Entities jointly and severally covenants and agrees with the Agents
that:
(a) Reaffirmation of Representations and Warranties. Each
-----------------------------------------------
acceptance by the Operating Partnership of an offer for the purchase of
Notes (whether to an Agent as principal or through an Agent as agent), and
each delivery of Notes (whether to an Agent as
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principal or through an Agent as agent), shall be deemed to be an
affirmation that the representations and warranties of the Transaction
Entities contained in this Distribution Agreement and in the most recent
certificate (for each type of certificate) theretofore delivered to such
Agent pursuant hereto qualified as to materiality are true and correct in
all respects and the representations and warranties of the Transaction
Entities in this Distribution Agreement that are not so qualified are true
and correct in all material respects at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to such Agent
or to the purchaser, as the case may be, of the Note or Notes relating to
such acceptance or sale, as the case may be, as though made at and as of
each such time (and it is understood that such representations and
warranties shall relate to the Registration Statement and Prospectus as
amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that there is
-----------------------------------
filed with the Commission any Quarterly Report on Form 10-Q or Annual
Report on Form 10-K incorporated by reference into the Prospectus, and
otherwise only (i) as may be required in connection with a sale pursuant to
Section 4(a) or (ii) at such times as may be reasonably requested by an
Agent in the event of a material adverse change to the business, prospects,
properties, financial position or results of operations of the Transaction
Entities taken as a whole, the Transaction Entities shall furnish or cause
to be furnished to the Agents forthwith a certificate dated the date of
filing with the Commission of such document, the date requested by an Agent
or the date of such sale, as the case may be, in form reasonably
satisfactory to such Agent to the effect that the statements contained in
the certificate referred to in Section 6(d) hereof which were last
furnished to such Agent are true and correct at the time of such filing, as
though made at and as of such time (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such time) or, in lieu of such certificate, a
certificate substantially similar to the certificate referred to in Section
6(d) hereof, modified as necessary to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time of delivery of
such certificate.
(c) Subsequent Delivery of Legal Opinions. Each time that there
-------------------------------------
is filed with the Commission any Quarterly Report on Form 10-Q or Annual
Report on Form 10-K incorporated by reference into the Prospectus, and
otherwise only (i) as may be required in connection with a sale pursuant
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to Section 4(a) or (ii) at such times as may be reasonably requested by an
Agent in the event of a material adverse change to the business, prospects,
properties, financial position or results of operations of the Transaction
Entities taken as a whole, the Transaction Entities shall furnish or cause
to be furnished forthwith, and in any case promptly upon request, to the
Agents and to counsel to the Agents the written opinion of counsel to the
Transaction Entities, dated the date of filing with the Commission of such
document, the date requested by the Agents or the date of such sale, as the
case may be, in form and substance reasonably satisfactory to the Agents,
including such reductions or limitations as shall be reasonably
satisfactory to the Agents, but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinion or, in lieu of such opinion, counsel
last furnishing such opinion to the Agents may furnish the Agents with a
letter substantially to the effect that the Agents may rely on such last
opinion to the same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
(d) Subsequent Delivery of Comfort Letters. Each time that there
--------------------------------------
is filed with the Commission any Quarterly Report on Form 10-Q or Annual
Report on Form 10-K incorporated by reference into the Prospectus, and
otherwise only (i) as may be required in connection with a sale pursuant to
Section 4(a) or (ii) at such times as may be reasonably requested by an
Agent in the event of a material adverse change to the business, prospects,
properties, financial position or results of operations of the Transaction
Entities taken as a whole, the Transaction Entities shall cause KPMG, or
other accountants reasonably satisfactory to the Agents, forthwith to
furnish the Agents a letter, dated the date of the filing of such document
with the Commission, the date of such request or the date of such sale, as
the case may be in form reasonably satisfactory to the Agents,
substantially similar to the portions of the letter referred to in clauses
(i) and (ii) of Section 6(c) hereof but modified to relate to the
Registration Statement and Prospectus as amended and supplemented to the
date of such letter, and substantially similar to the portions of the
letter referred to in clauses (iii) and (iv) of said Section 6(c) with such
changes as may be necessary to reflect changes in the financial statements
and other information derived from the accounting records of the
Transaction Entities.
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9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Transaction Entities jointly and severally will indemnify
and hold harmless the Agents and their directors, officers, employees and
agents and each person, if any, who controls any Agent within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and any and all amounts
paid in settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and
when incurred, to which an Agent, or any such person, may become subject
under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, liabilities, expenses or damages arise out of or are based
on (i) any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus or any amendment or supplement to the Registration Statement or
the Prospectus or in any documents filed under the Exchange Act and deemed
to be incorporated by reference into the Prospectus, or in any application
or other document executed by or on behalf of either Transaction Entity or
based on written information furnished by or on behalf of either
Transaction Entity filed in any jurisdiction in order to qualify the Notes
under the securities laws thereof or filed with the Commission, (ii) the
omission or alleged omission to state in such document a material fact
required to be stated in it or necessary to make the statements in it not
misleading or (iii) any act or failure to act or any alleged act or failure
to act by an Agent in connection with, or relating in any manner to, the
Notes or the offering contemplated hereby, and which is included as part of
or referred to in any loss, claim, liability, expense or damage arising out
of or based upon matters covered by clause (i) or (ii) above (provided that
the Transaction Entities shall not be liable under this clause (iii) to the
extent it is finally judicially determined by a court of competent
jurisdiction that such loss, claim, liability, expense or damage resulted
directly from any such acts or failures to act undertaken or omitted to be
taken by an Agent through gross negligence or willful misconduct); provided
that the Transaction Entities will not be liable to the extent that such
loss, claim, liability, expense or damage arises from the sale of the Notes
to any person by an Agent and is based on an untrue statement or omission
or alleged untrue statement or omission made in reliance on and in
conformity with information relating to an Agent furnished in writing to
the Transaction Entities by such Agent expressly for inclusion in the
Registration Statement, any preliminary prospectus or the Prospectus.
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(b) The Agents will indemnify and hold harmless each Transaction
Entity and each person, if any, who controls each Transaction Entity within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, each partner of the Transaction Entities and each officer or
director of the Transaction Entities who signs the Registration Statement
to the same extent as the foregoing indemnity from the Transaction Entities
to the Agents, but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity
with information relating to an Agent furnished in writing to the
Transaction Entities by such Agent expressly for use in the Registration
Statement or the Prospectus. This indemnity will be in addition to any
liability that an Agent might otherwise have; provided, however, that in no
-------- -------
case shall an Agent be liable or responsible for any amount in excess of
the total discount or commission received by such Agent in connection with
the offering of the Notes that were the subject of the claim for
indemnification.
(c) Any party that proposes to assert the right to be indemnified
under this Section 9 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 9, notify each
such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying
party will not relieve it from any liability that it may have to any
indemnified party under the foregoing provisions of this Section 9 unless,
and only to the extent that, such omission results in the forfeiture of
substantive rights or defenses by the indemnifying party. If any such
action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election
to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but
the fees, expenses and other charges of such counsel will be at the expense
of such
34
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indemnified party unless (i) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party,
(ii) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (iii) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (iv) the indemnifying party
has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm admitted to practice in such
jurisdiction at any time for all such indemnified party or parties. All
such fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. An indemnifying party
will not be liable for any settlement of any action or claim effected
without its written consent (which consent will not be unreasonably
withheld). No indemnifying party shall, without the prior written consent
of each indemnified party, settle or compromise or consent to the entry of
any judgment in any pending or threatened claim, action or proceeding
relating to the matters contemplated by this Section 9 (whether or not any
indemnified party is a party thereto), unless such settlement, compromise
or consent includes a unconditional release of each indemnified party from
all liability arising or that may arise out of such claim, action or
proceeding. Notwithstanding any other provision of this Section 9(c), if
at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the
terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed
such indemnified party in accordance with such request prior to the date of
such settlement.
(d) In order to provide for just and equitable contribution in
circumstances in which the
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indemnification provided for in the foregoing paragraphs of this Section 9
is applicable in accordance with its terms but for any reason is held to be
unavailable from the Transaction Entities or the Agents, the Transaction
Entities and any applicable Agent will contribute to the total losses,
claims, liabilities, expenses and damages (including any investigative,
legal and other expenses reasonably incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claim
asserted, but after deducting any contribution received by the Transaction
Entities from persons other than an Agent, such as persons who control the
Transaction Entities within the meaning of the Securities Act and officers
of the Transaction Entities who signed the Registration Statement, who also
may be liable for contribution) to which the Transaction Entities and any
applicable Agent may be subject in such proportion as shall be appropriate
to reflect the relative benefits received by the Transaction Entities on
the one hand and any applicable Agent on the other. The relative benefits
received by the Transaction Entities on the one hand and any applicable
Agent on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of any Notes (before deducting
expenses) received by the Transaction Entities bear to the total
commissions received by applicable Agent or Agents. If, but only if, the
allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such
proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the
Transaction Entities, on the one hand, and any applicable Agent, on the
other, with respect to the statements or omissions which resulted in such
loss, claim, liability, expense or damage, or action in respect thereof, as
well as any other relevant equitable considerations with respect to such
offering. Such 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 Transaction Entities or an Agent, the intent of the parties and
their relative knowledge, access to information and opportunity to correct
or prevent such statement or omission. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section
9(d) shall be deemed to include, for purpose of this Section 9(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9(d), no Agent shall be
required to contribute any amount in excess of the commissions and other
compensation received by such Agent and no person found guilty of
fraudulent misrepresentation (within the meaning of
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Section 11(f) of the Securities Act) will be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 9(d), any person who controls a party to this
Distribution Agreement within the meaning of the Securities Act will have
the same rights to contribution as that party, and each officer of the
Transaction Entities who signed the Registration Statement will have the
same rights to contribution as the Transaction Entities, subject in each
case to the provisions hereof. Any party entitled to contribution, promptly
after receipt of notice of commencement of any action against such party in
respect of which a claim for contribution may be made under this Section
9(d), will notify any such party or parties from whom contribution may be
sought but the omission so to notify will not relieve the party or parties
from whom contribution may be sought from any other obligation it or they
may have under this Section 9(d). Except for a settlement entered into
pursuant to the last sentence of Section 6(c) hereof, no party will be
liable for contribution with respect to any action or claim settled without
its written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 9 and the representations and warranties of the Transaction
Entities contained in this Distribution Agreement shall remain operative
and in full force and effect regardless of (i) any investigation made by an
Agent or on its behalf, (ii) acceptance of any of the Notes and payment
therefore or (iii) any termination of this Distribution Agreement.
10. REIMBURSEMENT OF AGENTS' EXPENSES. If the Transaction Entities
shall fail to perform any agreement on their part to be performed hereunder, or
if any condition of the Agents' obligations hereunder required to be fulfilled
by the Transaction Entities is not fulfilled, the Transaction Entities will
reimburse any applicable Agent for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by such Agent in
connection with this Distribution Agreement, and upon demand the Transaction
Entities shall pay the full amount thereof to such Agent. If this Distribution
Agreement is terminated pursuant to Section 12 by reason of the default of any
Agent, the Transaction Entities shall not be obligated to reimburse such Agent
on account of those expenses.
11. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Distribution
Agreement or in certificates of officers of the Company submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Agent or any controlling person of
such Agent, or by or on behalf of either of the Transaction Entities or of any
of
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their Subsidiaries, and shall survive each delivery of and payment for any of
the Notes.
12. TERMINATION. The Transaction Entities shall have the right to
terminate this Distribution Agreement with respect to any or all of the Agents
at any time by giving notice hereunder to the Agents as hereinafter specified.
The Agents shall have the right by giving notice as hereinafter specified at any
time to terminate this Distribution Agreement if (i) either of the Transaction
Entities shall have failed, refused or been unable, at any time, to perform any
agreement on its part to be performed hereunder, (ii) any other condition of
your obligations hereunder is not fulfilled when due, (iii) the rating assigned
by either of the Rating Agencies to the Company, the Operating Partnership or
the Notes as of or subsequent to the date of this Distribution Agreement shall
have been lowered since that date or if either of the Rating Agencies shall have
publicly announced that it has under surveillance or review for the purpose of
considering lowering such rating, its rating of the Company, the Operating
Partnership or the Notes, (iv) trading in any of the equity securities of the
Company shall have been suspended by the Commission, the NASD, by an exchange
that lists the Shares or by the Nasdaq Stock Market, (v) trading in securities
generally on the New York Stock Exchange or the Nasdaq Stock Market shall have
been suspended or limited or minimum or maximum prices shall have been generally
established on such exchange or over the counter market, or additional material
governmental restrictions, not in force on the date of this Agreement, shall
have been imposed upon trading in securities generally by such exchange or by
order of the Commission or the NASD or any court or other governmental
authority, (vi) a general banking moratorium shall have been declared by either
Federal or New York State authorities, (vii) any material adverse change in the
financial or securities markets in the United States or in political, financial
or economic conditions in the United States or any outbreak or material
escalation of hostilities or declaration by the United States of a national
emergency or war or other calamity or crisis shall have occurred the effect of
any of which is such as to make it, in the sole judgment of the Agents,
impracticable or inadvisable to market the Shares on the terms and in the manner
contemplated by the Prospectus, or (viii) if there shall have come to the
attention of the Agents any facts that would cause them to believe that the
Prospectus, at the time it was required to be delivered to a purchaser of Notes,
included 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 existing at the time of such delivery, not misleading. As used in
this Section 12, the term "Prospectus" means the Prospectus in the form first
provided to the Agents for use in confirming sales of the related Notes. In the
event of any such termination, neither party will have any liability to the
other party hereto, except that (i) an Agent shall be entitled to any commission
earned in accordance with the third paragraph of
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Section 4(b) hereof, (ii) if at the time of termination (a) such Agent shall own
any Notes purchased by it as principal with the intention of reselling them or
(b) an offer to purchase any of the Notes has been accepted by the Operating
Partnership but the time of delivery to the purchaser or his agent of the Note
or Notes relating thereto has not occurred, the covenants set forth in Sections
5 and 8 hereof shall remain in effect until such Notes are so resold or
delivered, as the case may be, and (iii) the covenant set forth in Section 5(f)
hereof, the provisions of Section 10 hereof, the indemnity and contribution
agreements set forth in Section 9 hereof, and the provisions of Sections 11, 14
and 15 hereof shall remain in effect.
13. NOTICES. All notices or communications hereunder shall be in
writing and if sent to the Transaction Entities, shall be mailed, delivered,
telexed or telecopied and confirmed to:
Thomas P. D'Arcy, CEO, or Irving E. Lingo, Jr., CFO
Bradley Real Estate, Inc.
40 Skokie Boulevard, Suite 600
Northbrook, Illinois 60062
phone 847-272-9800; fax 847-480-1893
with copy to:
William B. King, P.C.
c/o Goodwin, Procter & Hoar LLP
Exchange Place, Boston, MA 02109
phone 617-570-1530; fax 617-570-8150;
and if sent to the Agents shall be mailed, delivered, telexed or telecopied and
confirmed to:
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
c/o Real Estate Investment Banking
attention: David R. Jarvis
phone 212-713-7911; fax 212-713-7949
with a copy to:
Jay L. Bernstein, Esq.
c/o Rogers & Wells LLP
200 Park Avenue
New York, New York 10166
phone 212-878-8527; fax 212-878-8375
BT Alex. Brown Incorporated
130 Liberty Street, 37th Floor
New York, NY 10006
attention: Warren Spar
phone: 212-775-3143; fax: 212-669-5492
39
<PAGE>
First Chicago Capital Markets, Inc.
One First National Plaza
Chicago, IL 60670
attention: Evonne W. Taylor
phone: 312-732-8270; fax: 312-732-4172
NationsBanc Montgomery Securities LLC
100 N. Tryon Street, 7th Floor
Charlotte, NC 28255
attention: Debt Finance Group
phone: 704-386-7800; fax: 704-388-9939
Salomon Smith Barney Inc.
7 World Trade Center, 42nd Floor
New York, NY 10048
attention: Medium Term Note Department
phone: 212-783-5897; fax: 212-783-2274
Any party to this Distribution Agreement may change such address for notices by
sending to the other parties to this Distribution Agreement written notice of a
new address for such purpose.
14. PARTIES. This Distribution Agreement shall inure to the benefit
of and be binding upon the Agents and the Transaction Entities and their
respective successors. Nothing expressed or mentioned in this Distribution
Agreement is intended, or shall be construed, to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Section 9
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Distribution Agreement or any
provision herein contained. This Distribution Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and respective successors and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Notes shall be
deemed to be a successor by reason merely of such purchase.
15. GOVERNING LAW. This Distribution Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York without
regard to the conflict of laws principles of such state.
16. COUNTERPARTS. This Distribution Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the executed
counterparts hereof shall constitute a single instrument.
17. ENFORCEABILITY. In case any provision of this Distribution
Agreement 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.
40
<PAGE>
18. WAIVER OF RIGHTS TO TRIAL BY JURY. The Transaction Entities and
the Agents each hereby irrevocably waive any right they may have to a trial by
jury in respect of any claim based upon or arising out of this Distribution
Agreement or the transactions contemplated hereby.
19. AMENDMENTS AND MODIFICATIONS. This Distribution Agreement may
not be amended or otherwise modified or any provision hereof waived except by an
instrument in writing signed by the Agents and the Transaction Entities.
41
<PAGE>
Very truly yours,
BRADLEY REAL ESTATE, INC.
By: /s/ Thomas P. D'Arcy
--------------------
Name: Thomas P. D'Arcy
Title: Chief Executive Officer
BRADLEY OPERATING LIMITED PARTNERSHIP
By: BRADLEY REAL ESTATE, INC.,
its general partner
By: /s/ Thomas P. D'Arcy
--------------------
Name: Thomas P. D'Arcy
Title: Chief Executive
Officer
ACCEPTED as of the date first above
written
By: PAINEWEBBER INCORPORATED
By: /s/ David R. Jarvis
--------------------------
Name: David R. Jarvis
Title: Managing Director
By: BT ALEX. BROWN INCORPORATED
By: /s/ Kenneth A. Brause
--------------------------
Name: Kenneth A. Brause
Title: Principal
By: FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Evonne W. Taylor
--------------------------
Name: Evonne W. Taylor
Title: Vice President
By: NATIONSBANC MONTGOMERY SECURITIES LLC
By: /s/ Jennifer W. Arens
--------------------------
Name: Jennifer W. Arens
Title: Principal
By: SALOMON SMITH BARNEY INC.
By: /s/ Martha Bailey
--------------------------
Name: Martha Bailey
Title: First Vice President
42
<PAGE>
EXHIBIT A
---------
The following terms, if applicable, shall be agreed to by an Agent or
Agents and the Operating Partnership in connection with each sale of Notes:
Principal Amount: $
(or principal amount of foreign currency or composite currency)
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis(es):
If LIBOR,
[_] LIBOR Reuters Page:
[_] LIBOR Telerate Page:
Designated LIBOR Currency:
IF CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[_] Weekly Average
[_] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from _____
Price to Public: ___%, plus accrued interest, if any, from ____
43
<PAGE>
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes by an Agent as principal,
agreement as to whether the following will be required:
Officers' Certificate pursuant to Section 8(b) of the Distribution
Agreement.
Legal Opinions pursuant to Section 8(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 8(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 5(q) of the Distribution Agreement.
44
<PAGE>
EXHIBIT B
---------
ADMINISTRATIVE PROCEDURES AGREEMENT
-----------------------------------
45
<PAGE>
BRADLEY OPERATING LIMITED PARTNERSHIP
MEDIUM-TERM NOTE PROGRAM
ADMINISTRATIVE PROCEDURES
The Medium-Term Notes, due nine months or more from their date of issue
(the "Notes") are to be offered on a continuous basis by Bradley Operating
Limited Partnership (the "Issuer"). PaineWebber Incorporated, BT Alex. Brown
Incorporated, First Chicago Capital Markets, Inc., NationsBanc Montgomery
Securities LLC, and Salomon Smith Barney Inc., as agents (the "Agents"), have
each agreed to use their best efforts to solicit purchases of the Notes. The
Issuer reserves the right to sell Notes directly or indirectly on its own behalf
to investors (other than broker-dealers). The Agents will not be obligated to,
but may from time to time, purchase Notes as principal for their own account.
The Notes are being sold pursuant to a Distribution Agreement dated September
28, 1998 (the "Agency Agreement"), among the Issuer, Bradley Real Estate, Inc.,
a Maryland corporation and the sole general partner and the principal limited
partner of the Issuer (the "Company") and the Agents, and will be issued
pursuant to an indenture dated as of September 28, 1998 and all indentures
supplemental thereto, including, Supplemental Indenture No. 1 dated as of
September 28, 1998 (collectively, the "Indenture") between the Issuer and U.S.
Bank Trust National Association, as Trustee (the "Trustee). Capitalized terms
used herein and not defined herein shall have the meanings ascribed to such
terms in the Agency Agreement. The Notes have been registered under the
Securities Act of 1933 (the "Act").
Each Note will be represented by either a Global Security (as defined in
the Indenture), such Global Security, for purposes hereof either a global note
(a "Global Note") or a master note (a "Master Note"), registered in the name of
a nominee of The Depository Trust Company, as Depositary ("DTC") (a "Book-Entry
Note"), or a certificate issued in definitive form (a "Certificated Note"). It
is currently contemplated that both Notes that bear interest at a fixed rate (a
"Fixed Rate Note") and Notes that bear interest at a variable rate (a "Floating
Rate Note") and that are denominated and payable in U.S. dollars may be issued
as Book-Entry Notes.
Administrative procedures and specific terms of the offering are explained
below. The Issuer will advise the Agents in writing of those persons
handling administrative responsibilities with whom the Agents are to
communicate regarding offers to purchase Notes and the details of their
delivery. Administrative procedures may be modified from time to time as
reflected in the applicable Pricing Supplement (as defined below) or
elsewhere.
B-1
<PAGE>
PART I. ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES AND GENERALLY
APPLICABLE ADMINISTRATIVE PROCEDURES
Issue/Authentication Date: Each Note shall be dated as of the date of its
- ------------------------- authentication by the Trustee or an agent designated
by the Issuer for such purpose (the "Designated
Agent"). Each Note will also bear an original issue
date (the "Issue Date") which, with respect to any
Note (or portion thereof), shall mean the date of
its original issuance (i.e., the settlement date)
and shall be specified therein. The issue date will
remain the same for all Notes subsequently issued
upon transfer, exchange or substitution of an
original Note regardless of their dates of
authentication.
Maturities: Each Note shall mature on a Business Day, selected
- ---------- by the purchaser and agreed to by the Issuer, which
shall be nine months or more from the date of issue.
Price to Public: Each Note shall be issued at 100% of principal
- --------------- amount unless otherwise specified in a supplement to
the Prospectus (a "Pricing Supplement").
Denominations: The denominations of the Notes shall be $1,000 and
- ------------- integral multiples of $1,000 in excess thereof. (Any
Notes denominated other than in U.S. dollars will be
issuable in denominations as set forth in such
Notes.)
Registration: Notes shall be issued only in fully registered form.
- ------------
Minimum Purchase: The minimum aggregate amount of Notes denominated
- ---------------- and payable in U.S. dollars which may be offered to
any purchaser will be $1,000.
Interest: General. Each Note shall bear interest in accordance
- -------- -------
with its terms, as described in the Prospectus
Supplement (as defined in the Agency Agreement), as
supplemented by the applicable Pricing Supplement.
Calculation of Interest: Interest on Fixed Rate Notes and interest rates on
- ----------------------- Floating Rate Notes will be determined as set forth
in the form of Notes. With respect to Floating Rate
Notes, the Calculation Agent shall determine the
interest rate for each Interest Reset Date and
communicate such interest rate to the Issuer, and
the Issuer will promptly notify the Trustee, or the
Designated Agent, and the Paying Agent of each such
determination.
B-2
<PAGE>
Payments of Interest and
- ------------------------
Principal: All interest payments (excluding interest payments
- --------- made at maturity) will be made by check mailed to
the person entitled thereto; provided, however, that
if a holder of one or more Notes of like tenor and
terms with an aggregate principal amount equal to or
greater than U.S. $10,000,000 (or the equivalent
thereof in foreign currencies or currency units)
shall designate in writing to the Paying Agent at
its corporate trust office in The City of New York
on or prior to the Regular Record Date relating to
the Interest Payment Date an appropriate account
with a bank, the Paying Agent will, subject to
applicable laws and regulations and until it
receives notice to the contrary, make such payment
and all succeeding payments to such person by wire
transfer to the designated account. If a payment
cannot be made by wire transfer because the
information received by the Paying Agent is
incomplete, a notice will be mailed to the holder at
its registered address requesting such information.
Upon presentation of the relevant Note, the Trustee,
or the Designated Agent, (or any duly appointed
Paying Agent) will pay in immediately available
funds the principal amount of such Note at maturity
and accrued interest, if any, due at maturity;
provided that the Note is presented to the Trustee,
--------
or the Designated Agent, (or any such Paying Agent)
to make payments in accordance with its normal
procedures. The Issuer will provide the Trustee, or
the Designated Agent, (and any such Paying Agent)
with funds available for such purpose. Notes
presented to the Trustee, or the Designated Agent,
at maturity for payment will be canceled and
destroyed by the Trustee, or the Designated Agent,
and a certificate of destruction will be delivered
to the Issuer. On the fifth Business Day (as defined
below) immediately preceding each interest payment
date, the Trustee, or the Designated Agent, will
furnish to the Issuer a statement showing the total
amount of the interest payments to be made on such
interest payment date. The Trustee, or the
Designated Agent, will provide monthly to the Issuer
a list of the principal and interest to be paid on
Notes maturing in the next succeeding six months.
The Trustee, or the Designated Agent, will assume
responsibility for withholding taxes on interest
paid as required by law.
Acceptance of Offers: The Agents will promptly advise the Issuer of each
- -------------------- reasonable offer to purchase Notes received by it,
other than those rejected by the Agents. The Agents
may, in their discretion reasonably exercised,
without notice to the Issuer, reject any offer
received by it, in whole or in part. The Issuer will
have the right to
B-3
<PAGE>
withdraw, cancel or modify such offer without notice
and will have the sole right to accept offers to
purchase Notes and may reject any such offer, in
whole or in part. If the Issuer rejects an offer,
the Issuer will promptly notify the Agents.
Settlement: All offers accepted by the Issuer will be settled on
- ---------- the third Business Day next succeeding the date of
acceptance unless otherwise agreed by any purchaser,
the Agents and the Issuer. The settlement date shall
be specified upon receipt of an offer. Prior to 3:00
p.m., New York City time, on the business day prior
to the settlement date, the Issuer will instruct the
Trustee, or the Designated Agent, to authenticate
and deliver the Notes pursuant to the terms
communicated by the Presenting Agent (as defined
below) pursuant to the next succeeding section no
later than 2:15 p.m., New York City time, on that
day.
Details for Settlement: For each offer accepted by the Issuer, the Agent who
- ---------------------- presented the offer (the "Presenting Agent") shall
communicate to the Issuer, Attention: Thomas P.
D'Arcy, CEO or Irving E. Lingo, Jr., CFO (Fax No.:
(847) 480-1893) who will provide a copy to the
Trustee, Attention: Harry Hall (Fax No.: (312) 228-
9459) and the Designated Agent, if any, by facsimile
transmission or other acceptable means the following
information (the "Purchase Information"):
Exact name in which the Note or Notes are to be
registered ("registered owner").
Exact address of registered owner.
Taxpayer identification number of registered owner.
Principal amount of each Note to be delivered to the
registered owner.
Specified Currency and, if other than U.S. dollar,
denominations.
In the case of a Fixed Rate Note, the interest rate
or, in the case of a Floating Rate Note, the
interest rate formula, the Initial Interest Rate (if
known at such time), Index Maturity, Interest Reset
Period, Interest Reset Dates, Spread or Spread
Multiplier (if any), minimum interest rate (if any)
and maximum interest rate (if any).
B-4
<PAGE>
Interest Payment Period and Interest Payment Dates.
Maturity Date of Notes.
Issue Price of Notes.
Settlement date for Notes.
Presenting Agent's commission (to be paid in the
form of a discount from the proceeds remitted to the
Issuer upon settlement).
Redemption provisions, if any.
Repayment provisions, if any.
Original issue discount provisions, if any.
In the case of Currency Indexed Notes, the above-
listed information, as applicable and the Base
Exchange Rate(s), Base Interest Rate and Indexed
Currencies.
In the case of Dual Currency Notes, the above listed
information, as applicable, and the Optional Payment
Currency, Designated Exchange Rate and Option
Election Dates.
The issue date of, and the settlement date for,
Notes will be the same. Before accepting any offer
to purchase Notes to be settled in less than three
days, the Issuer shall verify that the Trustee, or
the Designated Agent, will have adequate time to
prepare and authenticate the Notes. Prior to
preparing the Notes for delivery, the Trustee, or
the Designated Agent, will confirm the Purchase
Information by telephone with the Presenting Agent
and the Issuer.
Confirmation: For each accepted offer, the Presenting Agent will
- ------------ issue a confirmation, in writing, telephonically or
through any other commonly used method of
communication to the purchaser and a confirmation to
the Issuer, Attention: Thomas P. D'Arcy, CEO or
Irving E. Lingo, Jr., CFO (Fax No.: 847-480-1893).
Note Deliveries
- ---------------
and Cash Payment: Upon the receipt of appropriate documentation and
- ---------------- instructions from the Issuer and verification
thereof, the Trustee, or
B-5
<PAGE>
the Designated Agent, will cause the Notes to be
prepared and authenticated and hold the Notes for
delivery against payment.
The Trustee, or the Designated Agent, will deliver
the Notes, in accordance with instructions from the
Issuer, to the Presenting Agent, as the Issuer's
agent, for the benefit of the purchaser only against
payment in immediately available funds in an amount
equal to the face amount of the Notes less the
Presenting Agent's commission plus any premium or
less any discount provided, however, that the
-------- -------
Trustee, or the Designated Agent, may deliver Notes
to the Presenting Agent against receipt therefor
and, later the same day, receipt of such funds in
such amount. Upon receipt of such payment, the
Trustee, or the Designated Agent, shall pay promptly
an amount equal thereto to the Issuer in immediately
available funds by wire transfer to the account of
the Issuer maintained at BankBoston, N.A. (ABA#
011000390, Account No. 526-76237).
The Presenting Agent, as the Issuer's agent, will
deliver the Notes (with the written confirmation
provided for above) to the purchaser thereof against
payment by such purchaser in immediately available
funds. Delivery of any confirmation or Note will be
made in compliance with "Delivery of Prospectus"
below.
Failure of Purchaser: In the event that a purchaser shall fail to accept
- -------------------- delivery of and make payment for a Note on the
settlement date, the Presenting Agent will notify
the Trustee or the Designated Agent and the Issuer,
by telephone, confirmed in writing. If the Note has
been delivered to the Presenting Agent, as the
Issuer's agent, the Presenting Agent shall return
such Note to the Trustee, or the Designated Agent.
If funds have been advanced for the purchase of such
Note, the Trustee, or the Designated Agent, will,
immediately upon receipt of such Note contact the
Issuer to the attention of Thomas P. D'Arcy, CEO or
Irving E. Lingo, Jr., CFO (Fax No.: (847) 480-1893)
advising the Issuer of such failure. At such time,
the Issuer will refund the payment previously made
by the Presenting Agent in immediately available
funds. Such payments will be made on the settlement
date, if possible, and in any event not later than
the business day following the settlement date. If
such failure shall have occurred for any reason
other than the failure of the Presenting Agent to
provide the Purchase Information to the Issuer or to
provide a confirmation to the purchaser, the Issuer
will reimburse the Presenting Agent on an equitable
basis for its loss of the use of funds during the
period when they were credited to the account of the
Issuer.
B-6
<PAGE>
Immediately upon receipt of the Note in respect of
which the failure occurred, the Trustee, or the
Designated Agent, will cause the Security Registrar
to make appropriate entries to reflect the fact that
the Note was never issued and will destroy the Note.
Procedure for
- -------------
Rate Changes: The Issuer and the Agents will discuss from time to
- ------------ time the price of, and the rates to be borne by, the
Notes that may be sold as a result of the
solicitation of offers by the Agent. Once an Agent
has recorded any indication of interest in Notes
upon certain terms, and communicated with the
Issuer, if the Issuer plans to accept an offer to
purchase Notes upon such terms, it will prepare a
Pricing Supplement to the Prospectus, as then
amended or supplemented, reflecting the terms of
such Notes and will arrange to transmit such Pricing
Supplement to the Commission for filing in
accordance with and within the time prescribed by
the applicable paragraph of Rule 424(b) under the
Act. The Issuer will supply at least two copies of
the Prospectus as then amended or supplemented, and
bearing such Pricing Supplement, to the Presenting
Agent. The Issuer shall use its reasonable best
efforts to send such Pricing Supplement by telecopy
or overnight express (for delivery by the close of
business on the applicable trade date, but in no
event later than 11:00 a.m. New York City time, on
the Business Day following the applicable trade
date) to the Presenting Agent and the Trustee at the
following applicable address: if to PaineWebber
Incorporated, attention: David R. Jarvis, 1285
Avenue of the Americas, 19th Floor, New York, NY
10019, Telecopy Number (212) 713-7948, if to BT
Alex. Brown Incorporated, to Debt Capital Markets,
attention: Kenneth Brause, 130 Liberty Street, 37th
Floor, New York, NY 10006, Telecopy Number
(212) 669-5492, if to First Chicago Capital Markets,
Inc., to Real Estate Capital Markets, attention: Leo
E. Subler, One First National Plaza, Chicago IL
60670, Telecopy Number (312) 732-1117, if to
NationsBanc Montgomery Securities LLC, attention:
Rick Baer, 231 South LaSalle Street, 12th Floor,
Chicago, IL 60697, Telecopy Number (312) 732-7954
and if to Salomon Smith Barney Inc., to Debt Capital
Markets, attention: Peter O. Aherne, 7 World Trade
Center, 42nd Floor, New York, N.Y. 10048 for record
keeping purposes, one copy of such Pricing
Supplement shall also be
B-7
<PAGE>
mailed to Rogers & Wells LLP, 200 Park Avenue, 52nd
Floor, New York, NY, attention: Jay L. Bernstein,
Telecopy Number (212) 878-8375, and if to the
Trustee, to U.S. Bank Trust National Association,
attention: Harry Hall, 111 East Wacker Drive, Suite
3000, Chicago, IL 60601, Telecopy Number (312) 228-
9404 and the Designated Agent, if any. In each
instance that a Pricing Supplement is prepared, the
Presenting Agent will provide a copy of such Pricing
Supplement to each investor or purchaser of the
relevant Notes or its agent. Pursuant to Rule 434 of
the Securities Act of 1933, as amended, the Pricing
Supplement may be delivered separately from the
Prospectus. No settlements with respect to Notes
upon such terms may occur prior to such transmitting
and such Agent will not, prior to such transmitting,
mail confirmations to customers who have offered to
purchase Notes upon such terms. After such
transmitting, sales, mailing of confirmations and
settlements may occur with respect to Notes upon
such terms, subject to the provisions of "Delivery
of Prospectus" below.
Outdated Pricing Supplements and copies of the
Prospectus to which they are attached (other than
those retained for files), will be destroyed.
Suspension of Solicitation;
- --------------------------
Amendment or Supplement: As provided in the Agency Agreement, the Issuer may
- ----------------------- suspend solicitation of purchases at any time and,
upon receipt of notice from the Issuer, the Agents
will, as promptly as practicable, but in no event
later than one business day following such notice,
suspend solicitation until such time as the Issuer
has advised them that solicitation of purchases may
be resumed. If the Agents receive the notice from
the Issuer contemplated by Section 4(b) of the
Agency Agreement, they will promptly suspend
solicitation and will only resume solicitation as
provided in the Agency Agreement. If the Issuer
decides to amend or supplement the Registration
Statement or the Prospectus relating to the Notes,
it will promptly advise the Agents and will furnish
the Agents with the proposed amendment or supplement
in accordance with the terms of the Agency
Agreement. The Issuer will promptly file or mail to
the Commission for filing such amendment or
supplement, provide the Agents with copies of any
such amendment or supplement, confirm to the Agents
that such amendment or supplement has been filed
with the Commission and advise the Agents that
solicitation may be resumed. Any such suspension
shall not affect the Issuer's obligations under the
B-8
<PAGE>
Agency Agreement; and in the event that at the time
the Issuer suspends solicitation of purchases there
shall be any offers already accepted by the Issuer
outstanding for settlement, the Issuer will have the
sole responsibility for fulfilling such obligations;
the Agents will make reasonable efforts to assist
the Issuer to fulfill such obligations, but the
Agents will not be obligated to fulfill such
obligations. The Issuer will in addition promptly
advise the Agents and the Trustee, or the Designated
Agent, if such offers are not to be settled and if
copies of the Prospectus as in effect at the time of
the suspension may not be delivered in connection
with the settlement of such offers.
Delivery of Prospectus: A copy of the Prospectus, as most recently amended
- ---------------------- or supplemented on the date of delivery thereof
(except as provided below), must be delivered to a
purchaser prior to or together with the earlier of
delivery of (i) the written confirmation provided
for above, and (ii) any Note purchased by such
purchaser at the following address: if to
PaineWebber Incorporated, attention: David R.
Jarvis, 1285 Avenue of the Americas, 19th Floor,
New York, NY 10019, Telecopy Number (212) 713-7948,
if to BT Alex. Brown Incorporated, to Debt Capital
Markets, attention: Kenneth Brause, 130 Liberty
Street, 37th Floor, New York, NY 10006, Telecopy
Number (212) 669-5492, if to First Chicago Capital
Markets, Inc., to Real Estate Capital Markets,
attention Leo E. Subler, One First National Plaza,
Chicago IL 60670, Telecopy Number (312) 732-1117, if
to NationsBanc Montgomery Securities LLC, attention:
Rick Baer, 231 South LaSalle Street, 12th Floor,
Chicago, IL 60697, Telecopy Number (312) 732-7954
and if to Salomon Smith Barney Inc., to: Debt
Capital Markets, attention: Peter O. Aherne, 7 World
Trade Center, 42nd Floor, New York, NY 10048 for
record keeping purposes, one copy of such Pricing
Supplement shall also be mailed to Rogers & Wells
LLP, 200 Park Avenue, 52nd Floor, New York, NY,
Attention: Jay L. Bernstein, Telecopy Number (212)
878-8375, and if to the Trustee, to: U.S. Bank Trust
National Association, attention: Harry Hall, 111
East Wacker Drive, Suite 3000, Chicago, IL 60601,
Telecopy Number (312) 228-9404 and the Designated
Agent, if any. The Issuer shall ensure that the
Presenting Agent receives copies of the Prospectus
and each amendment or supplement thereto (including
appropriate Pricing Supplements) in such quantities
and within such time limits as will enable the
Presenting Agent to deliver such confirmation or
Note to a purchaser as contemplated by these
procedures and in compliance with the preceding
sentence. If,
B-9
<PAGE>
since the date of acceptance of a purchaser's offer,
the Prospectus shall have been supplemented solely
to reflect any sale of Notes on terms different from
those agreed to between the Issuer and such
purchaser or a change in posted rates not applicable
to such purchaser, such purchaser shall not receive
the Prospectus as supplemented by such new
supplement, but shall receive the Prospectus as
supplemented to reflect the terms of the Notes being
purchased by such purchaser and otherwise as most
recently amended or supplemented on the date of
delivery of the Prospectus.
Authenticity of Signatures: The Issuer will cause the Trustee, or the Designated
- -------------------------- Agent, to furnish the Agent from time to time with
the specimen signatures of each of the officers,
employees or agents of the Trustee, or the
Designated Agent, who have been authorized by the
Trustee, or the Designated Agent, respectively, to
authenticate Notes, but the Agent will have no
obligation or liability to the Issuer or the
Trustee, or the Designated Agent, in respect of the
authenticity of the signature of any officer,
employee or agent of the Issuer or the Trustee, or
the Designated Agent, on any Note.
Advertising Cost: The Issuer and the Company will determine with the
- ---------------- Agent the amount of advertising that may be
appropriate in offering the Notes.
Business Day: "Business Day" means any day (other than a Saturday,
- ------------ Sunday or legal holiday) on which banking
institutions in The City of New York are open for
business (and, (i) with respect to LIBOR Notes which
is also a day on which dealings in deposits in U.S.
dollars are transacted in the London interbank
market, and (ii) with respect to Notes denominated
in a Specified Currency other than U.S. dollars, on
which banking institutions in the principal
financial center of the country of the Specified
Currency are open for business).
B-10
<PAGE>
PART II. ADMINISTRATIVE PROCEDURES FOR GLOBAL NOTE METHOD OF BOOK-ENTRY NOTES
The following explains the administrative procedures for the Global Note
method of the DTC book-entry system. Any reference to "Book-Entry Notes" in
this Part II refers to the Global Note method (for a discussion of the Master
Note method of the DTC book-entry system, see Part III below). Certain
generally applicable administrative procedures are set forth in Part I above
(See "Issue/Authentication Date", "Price to Public", "Minimum Purchase",
"Authenticity of Signatures", "Advertising Cost", and "Business Day"). In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). Both Fixed and Floating Rate Notes denominated and payable in
U.S. dollars may be issued in book-entry form. Single and Multi-Indexed Notes
may also be issued in book-entry form.
Issuance: On any date of settlement (as defined under
- -------- "Settlement" below) for one or more Book-Entry
Notes, the Issuer will issue a single global
security in fully registered form without coupons (a
"Global Note") representing up to $150,000,000
principal amount of all such Notes that have the
same Stated Maturity, redemption provisions, if any,
repayment provisions, if any, Interest Payment
Dates, Original Issue Date, original issue discount
provisions, if any, and, in the case of Fixed Rate
Notes, interest rate, or in the case of Floating
Rate Notes, interest rate formula, initial interest
rate, Index Maturity, Interest Reset Period,
Interest Reset Dates, Spread or Spread Multiplier
(if any), minimum interest rate (if any) and maximum
interest rate (if any) and, in the case of Fixed
Rate Notes or Floating Rate Notes that are also
Currency Indexed Notes, Specified Currency, Indexed
Currency, Face Amount and Base Exchange Rate and the
Base Interest Rate, if any, or that are also other
Indexed Notes, the same terms (all of the foregoing
are collectively referred to as the "Terms"). Each
Global Note will be dated and issued as of the date
of its settlement date, which will be (i) with
respect to an original Global Note (or any portion
thereof), its original issue date, and
(ii) following a consolidation of Global Notes, the
most recent Interest Payment Date to which interest
has been paid or duly provided for on the
predecessor Global Notes, regardless of the date of
authentication of such subsequently issued Global
Note. Each Book-Entry Note will be deemed to have
been dated
B-11
<PAGE>
and issued as of the settlement date, which date
shall be the Original Issue Date. No Global Note
will represent any Certificated Note.
Identification Numbers: The Issuer has arranged with the CUSIP Service
- ---------------------- Bureau of Standard & Poor's Ratings Services (the
"CUSIP Service Bureau") for the reservation of a
series of CUSIP numbers consisting of approximately
900 CUSIP numbers relating to Book-Entry Notes. The
Trustee, the Issuer and DTC have obtained from the
CUSIP Service Bureau a written list of such reserved
CUSIP numbers. The Trustee will assign CUSIP numbers
to Global Notes as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Trustee has assigned to Global Notes. The Trustee
will notify the Issuer at any time when fewer than
100 of the reserved CUSIP numbers remain unassigned
to Global Notes, and, if it deems necessary, the
Issuer will reserve additional CUSIP numbers for
assignment to Global Notes representing Book Entry
Notes. Upon obtaining such additional CUSIP numbers,
the Issuer shall deliver a list of such additional
CUSIP numbers to the Trustee and DTC.
Registration: Each Global Note will be issued only in fully
- ------------ registered form without coupons. Each Global Note
will be registered in the name of Cede & Co., as
nominee for DTC, on the Securities Register
maintained under the Indenture. The beneficial owner
of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Note, the "Participants") to act as
agent or agents for such owner in connection with
the book-entry system maintained by DTC, and DTC
will record in book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded
through the records of such Participants or through
the separate records of such Participants and one or
more indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accomplished
- --------- by book entries made by DTC and, in turn, by
Participants (and, in certain cases, one or more
indirect participants in DTC acting on behalf of
beneficial transferors and transferees of such Note.
B-12
<PAGE>
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
- --------- Bureau at any time a written notice of consolidation
(a copy of which shall be attached to the Global
Note resulting from such consolidation) specifying
(i) the CUSIP numbers set forth on two or more
outstanding Global Notes that represent Book-Entry
Notes having the same Terms and for which interest
has been paid to the same date, (ii) a date,
occurring at least thirty days after such written
notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry
Notes, on which such Global Notes shall be exchanged
for a single replacement Global Note and (iii) a new
CUSIP number to be assigned to such replacement
Global Note. Upon receipt of such a notice, DTC will
send to its Participants (including the Trustee) a
written reorganization notice to the effect that
such exchange will occur on such date. Prior to the
specified exchange date, the Trustee will deliver to
the CUSIP Service Bureau a written notice setting
forth such exchange date and the new CUSIP number
and stating that, as of such exchange date, the
CUSIP numbers of the Global Notes to be exchanged
will no longer be valid. On the specified exchange
date, the Trustee will exchange such Global Notes
for a single Global Note bearing the new CUSIP
number and a new Original Issue Date and the CUSIP
numbers of the exchanged Global Notes will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Notwithstanding the foregoing, if the Global Notes
to be exchanged exceed $150,000,000 in aggregate
principal amount, one Global Note will be
authenticated and issued to represent each
$150,000,000 of principal amount of the exchanged
Global Notes and an additional Global Note will be
authenticated and issued to represent any remaining
principal amount of such Global Notes (see
"Denominations" below).
Maturities: Each Book-Entry Note will mature on a Business Day
- ---------- nine months or more from the settlement date for
such Note.
Notice of
- ---------
Repayment Terms: With respect to each Book-Entry Note that is
- --------------- repayable at the option of the Holder the Trustee
will furnish DTC on the settlement date pertaining
to such Book-Entry Note a notice setting forth the
terms of such repayment option. Such terms shall
include the start date and end dates of the first
exercise period, the purchase date following such
exercise period, the frequency that such exercise
periods occur (i.e., quarterly,
B-13
<PAGE>
semiannually, annually, etc.) and if the repayment
option expires before maturity, the same information
(except frequency) concerning the last exercise
period. It is understood that the exercise period
shall be at least 15 calendar days long and that the
purchase date shall be at least seven calendar days
after the last day of the exercise period.
Redemption and Repayment: The Trustee will comply with the terms of the Letter
- ------------------------ with regard to redemptions and repayments of the
Notes. If a Global Note is to be redeemed or repaid
in part, the Trustee will exchange such Global Note
for two Global Notes, one of which shall represent
the portion of the Global Note being redeemed or
repaid and shall be canceled immediately after
issuance and the other of which shall represent the
remaining portion of such Global Note and shall bear
the CUSIP number of the surrendered Global Note.
Denominations: Book Entry Notes will be issued in principal amounts
- ------------- of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000. Global Notes will be
denominated in principal amounts not in excess of
$150,000,000. If one or more Book Entry Notes having
an aggregate principal amount in excess of
$150,000,000 would, but not for the preceding
sentence, be represented by a single Global Note,
then one Global Note will be issued to represent
each $150,000,000 principal amount of such Book-
Entry Note or Notes and an additional Global Note
will be issued to represent any remaining principal
amount of such Book-Entry Note or Notes. In such a
case, each of the Global Notes representing such
Book-Entry Note or Notes shall be assigned the same
CUSIP number.
Interest: General. Interest on each Book-Entry Note will begin
- -------- to accrue from the Original Issue Date of the Global
Note representing such Note or from the most recent
date to which interest has been paid, as the case
may be, in accordance with the terms of the Note, as
described in the Prospectus Supplement (as defined
in the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Standard & Poor's
Ratings Services will use the information received
in the pending deposit message described under the
Settlement Procedure "C" below in order to include
the amount of any interest payable and certain other
information regarding the related Global Note in the
appropriate weekly bond report published by Standard
& Poor's Ratings Services.
B-14
<PAGE>
Notice of Interest Payment
- --------------------------
and Regular Record Dates: On the first Business Day of January, April, July
- ------------------------ and October of each year, the Trustee will deliver
to the Issuer and DTC a written list of Regular
Record Dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the
six-month period beginning on such first Business
Day. Promptly after each Interest Determination Date
or Calculation Date, as applicable (as defined in or
pursuant to the applicable Note) for Floating Rate
Notes, the Issuer, upon receiving notice thereof,
will notify Standard & Poor's Ratings Services of
the interest rate determined on such Interest
Determination Date or Calculation Date, as
applicable.
Calculation of Interest: Interest on Fixed Rate Book-Entry Notes (including
- ----------------------- interest for partial periods) and interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. With respect to
Floating Rate Book-Entry Notes, the Calculation
Agent shall determine the interest for each Interest
Reset Date and communicate such interest rate to the
Issuer and the Issuer will promptly notify the
Trustee and the Paying Agent of each such
determination.
Payments of Principal
- ---------------------
and Interest: Promptly after each Regular Record Date, the Trustee
- ------------ will deliver to the Issuer and DTC a written notice
specifying by CUSIP number the amount of interest to
be paid on each Global Note on the following
Interest Payment Date (other than an Interest
Payment Date coinciding with maturity) and the total
of such amounts. The Issuer will confirm with the
Trustee the amount payable on each Global Note on
such Interest Payment Date. DTC will confirm the
amount payable on each Global Note on such Interest
Payment Date by reference to the daily or weekly
bond reports published by Standard & Poor's Ratings
Services. The Issuer will pay to the Trustee, as
paying agent, the total amount of interest due on
such Interest Payment Date (other than at maturity),
and the Trustee will pay such amount to DTC at the
times and in the manner set forth below under
"Manner of Payment".
Payments at Maturity: On or about the first Business Day of each month,
- -------------------- the Trustee will deliver to the Issuer and DTC a
written list of principal and interest to be paid on
each Global Note maturing either at Stated Maturity
or on a Redemption or Repayment Date in the
following month. The Issuer, the Trustee and DTC
will confirm the
B-15
<PAGE>
amounts of such principal and interest payments with
respect to each such Global Note on or about the
fifth Business Day preceding the maturity of such
Global Note. The Issuer will pay to the Trustee, as
paying agent, the principal amount of such Global
Note, together with interest due at such maturity.
The Trustee will pay such amounts to DTC at the
times and in the manner set forth below under
"Manner of Payment". Promptly after payment to DTC
of the principal and interest due at the maturity of
such Global Note, the Trustee will cancel and
destroy such Global Note in accordance with the
terms of the Indenture and deliver a certificate of
destruction to the Issuer.
Manner of Payment: The total amount of any principal and interest due
- ----------------- on Global Notes on any Interest Payment Date or at
maturity shall be paid by the Issuer to the Trustee
in funds available for use by the Trustee as of 9:30
A.M. (New York City time), or as soon as practicable
thereafter on such date. The Issuer will confirm
instructions regarding payment in writing to the
Trustee. Prior to 10:00 A.M. (New York City time) on
each Maturity Date or as soon as possible
thereafter, following receipt of such funds from the
Issuer, the Trustee will pay by separate wire
transfer (using Fedwire message entry instructions
in a form previously specified by DTC) to an account
at the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of principal (together with
interest thereon) due on Global Notes on any
Maturity Date. On each Interest Payment Date,
interest payments shall be made to DTC in same-day
funds in accordance with existing arrangements
between the Trustee and DTC. Thereafter, on each
such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Notes are recorded in the
book-entry system maintained by DTC. Neither the
Issuer nor the Trustee shall have any direct
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes: The amount of any taxes required under applicable
- ----------------- law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by
the Participant, indirect participant in DTC or
other Person responsible for forwarding payments and
materials directly to the beneficial owner of such
Note.
B-16
<PAGE>
Acceptance of Offers: Each Agent will promptly advise the Issuer of each
- -------------------- reasonable offer to purchase Notes received by it,
other than those rejected by such Agent. Each Agent
may, in its discretion reasonably exercised, without
notice to the Issuer, reject any offer received by
it, in whole or in part. The Issuer will have the
right to withdraw, cancel or modify such offer
without notice and will have the sole right to
accept offers to purchase Notes and may reject any
such offer, in whole or in part. If the Issuer
rejects an offer, the Issuer will promptly notify
such Agent.
Settlement: The receipt by the Issuer of immediately available
- ---------- funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Note or
Global Notes representing such Note shall constitute
"settlement" with respect to such Note. All orders
accepted by the Issuer will be settled on the third
Business Day from the date of the sale pursuant to
the timetable for settlement set forth below unless
the Issuer and the purchaser agree to settlement on
another day which shall be no earlier than the next
Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
- --------------------- Note sold by the For Issuer through an Agent as
agent, shall be as follows:
For each offer accepted by the Issuer, the
Presenting Agent shall communicate to the Issuer,
Attention: Thomas P. D'Arcy, CEO or Irving E. Lingo,
Jr., CFO (Fax No.: (847) 480-1893) who will provide
a copy to the Trustee, Attention: Harry Hall (Fax
No.: (312) 228-9459) and the Designated Agent, if
any, by facsimile transmission or other acceptable
means, the information set forth below:
Principal amount.
Maturity Date of Notes.
In the case of a Fixed Rate Book-Entry Note, the
interest rate or, in the case of a Floating Rate
Book-Entry Note, the Interest Rate Formula, the
Initial Interest Rate (if known at such time), Index
Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), Minimum
Interest Rate (if any) and Maximum Interest Rate (if
any).
Interest Payment Period and Interest Payment Dates.
B-17
<PAGE>
Redemption provisions, if any.
Repayment provisions, if any.
Settlement date (Original Issue Date).
Price to public of the Note (expressed as a percentage).
Agent's commission (to be paid in the form of a discount from the
proceeds remitted to the Issuer upon settlement).
Original issue discount provisions if any.
In the case of Currency Indexed Notes, the above-listed information,
as applicable, and the Base Exchange Rate(s), Base Interest Rate and
Indexed Currencies.
In the case of Dual Currency Notes, the above-listed information, as
applicable, and the Optional Payment Currency, Designated Exchange
Rate and Optional Election Dates.
Net proceeds to the Issuer.
The Trustee will confirm the information set forth in Settlement
Procedure "A" above by telephone with such Agent and the Issuer.
The Trustee will assign a CUSIP number to the Global Note representing
such Note and will telephone the Issuer and advise the Issuer of such
CUSIP number. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing the following
settlement information to DTC (which shall route such information to
Standard & Poor's Ratings Services) and the Presenting Agent:
The applicable information set forth in Settlement Procedure "A".
Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
Initial Interest Payment Date for such Note, number of days by which
such date succeeds the related DTC Record Date (which, in the case of
Floating Rate Notes which reset daily or weekly
B-18
<PAGE>
shall be the date five calendar days immediately preceding the
applicable Interest Payment Date and in the case of all other Notes
shall be the Regular Record Date as defined in the Note), the amount
of interest payable on such Interest Payment Date per $1,000 principal
amount of Notes at Maturity, and amount of interest payable per $1,000
principal amount of Notes in the case of Fixed Rate Notes.
CUSIP number of the Global Note representing such Note.
Whether such Global Note will represent any other Book-Entry Note (to
the extent known at such time).
To the extent the Issuer has not already done so, the Issuer will
deliver to the Trustee a Pricing Supplement in a form that has been
approved by the Issuer and the Agents. The Issuer will also deliver
to the Trustee a Global Note representing such Note.
The Trustee will complete and authenticate the Global Note
representing such Note.
DTC will credit such Note to the Trustee's participant account at DTC.
The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Note to the
Trustee's participant account and credit such Note to such Agent's
participant account and (ii) debit such Agent's settlement account and
credit the Trustee's settlement account for an amount equal to the
price of such Note less such Agent's commission. The entry of such a
deliver order shall constitute a representation and warranty by the
Trustee to DTC that (i) the Global Note representing such Book-Entry
Note has been executed, delivered and authenticated and (ii) the
Trustee is holding such Global Note pursuant to the relevant Medium-
Term Note Certificate Agreement between the Trustee and DTC.
An Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to such Agent's
participant account and credit such Note to the participant accounts
of the Participants with respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit the settlement
account of such Agent for an amount equal to the price of such Note.
B-19
<PAGE>
Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "G" and
"H" will be settled in accordance with SDFS
operating procedures in effect on the settlement
date.
The Trustee, upon confirming receipt of such funds
in accordance with Settlement Procedure "G", will
wire transfer to the account of the Issuer
maintained at BankBoston, N.A. (ABA# 011000390,
Account No. 526-76237) in funds available for
immediate use, the amount transferred to the Trustee
in accordance with Settlement Procedure "G".
An Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedure
- --------------------
Timetable: For orders of Book-Entry Notes solicited by the
- --------- Agent, as agent, and accepted by the Issuer for
settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "K" set
forth above shall be completed as soon as possible
but not later than the respective times (New York
City time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before
settlement
E 9:00 a.m. on settlement date
F 10:00 a.m. on settlement date
G-H 2:00 p.m. on settlement date
I 4:45 p.m. on settlement date
J-K 5:00 p.m. on settlement date
If a sale is to be settled two Business Days after
the sale date, Settlement Procedures "A", "B" and
"C" shall be completed as soon as practicable but
not later than 11:00 a.m., 12:00 noon and 2:00 p.m.,
as the case may be, on the first Business Day after
the sale date.
B-20
<PAGE>
If a sale is to be settled more than two Business
Days after the sale date, Settlement Procedure "A"
shall be completed as soon as practicable but no
later than 11:00 a.m. on the first Business Day
after the sale date and Settlement Procedures "B"
and "C" shall be completed as soon as practicable
but no later than 12:00 noon and 2:00 p.m., as the
case may be, on the second Business Day before the
settlement date. If the initial interest rate for a
Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A"
is completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has been
determined but not later than 12:00 noon and 2:00
p.m., respectively, on the Business Day before the
settlement date. Settlement Procedure "I" is subject
to extension in accordance with any extension of
Fedwire closing deadlines and in the other events
specified in the SDFS operating procedures in effect
on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, upon receipt of notice from
the Issuer, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If an Agent or Trustee fails to enter an SDFS
- ----------------- deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", the Trustee
may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such
Note to the Trustee's participant account. DTC will
process the withdrawal message, provided that the
Trustee's participant account contains a principal
amount of the Global Note representing such Note
that is at least equal to the principal amount to be
debited. If a withdrawal message is processed with
respect to all the Book-Entry Notes represented by a
Global Note, the Trustee will mark such Global Note
"canceled", make appropriate entries in its records
and send such canceled Global Note to the Issuer.
The CUSIP number assigned to such Global Note shall,
in accordance with CUSIP Service Bureau procedures,
be canceled and not immediately reassigned. If a
withdrawal message is processed with respect to one
or more, but not all, of the Book-Entry Notes
represented by a Global Note, the Trustee will
exchange such Global Note for two Global Notes, one
of which shall represent such Book-Entry Note or
Notes and shall be canceled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes
B-21
<PAGE>
previously represented by the surrendered Global
Note and shall bear the CUSIP number of the
surrendered Global Note.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal system reversing the orders entered
pursuant to Settlement Procedures "G" and "H",
respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the applicable
related actions described in the preceding
paragraph. If such failure shall have occurred for
any reason other than the failure of the Presenting
Agent to provide the Purchase Information to the
Issuer or to provide a confirmation to the
purchaser, the Issuer will reimburse the Presenting
Agent on an equitable basis for its loss of the use
of funds during the period when they were credited
to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect. In the event of
a failure to settle with respect to one or more, but
not all, of the Book-Entry Notes to have been
represented by a Global Note, the Trustee will
provide, in accordance with Settlement Procedures
"D" and "E", for the authentication and issuance of
a Global Note representing the other Book-Entry
Notes to have been represented by such Global Note
and will make appropriate entries in its records.
Procedure for
- -------------
Rate Changes: The Issuer and each Agent will discuss from time to
- ------------ time the price of, and the rates to be borne by, the
Notes that may be sold as a result of the
solicitation of offers by any Agent. Once an Agent
has recorded any indication of interest in Notes
upon certain terms, and communicated with the
Issuer, if the Issuer plans to accept an offer to
purchase Notes upon such terms, it will prepare a
Pricing Supplement to the Prospectus, as then
amended or supplemented, reflecting the terms of
such Notes and will arrange to transmit such Pricing
Supplement to the Commission for filing in
accordance with and within the time prescribed by
the applicable paragraph of Rule 424(b) under the
Act. The Issuer will supply at least two copies of
the Prospectus
B-22
<PAGE>
as then amended or supplemented, and bearing such Pricing Supplement,
to the Presenting Agent. The Issuer shall use its reasonable best
efforts to send such Pricing Supplement by telecopy or overnight
express (for delivery by the close of business on the applicable trade
date, but in no event later than 11:00 a.m. New York City time, on the
Business Day following the applicable trade date) to the Presenting
Agent and the Trustee at the following applicable address: if to
PaineWebber Incorporated, attention: David R. Jarvis, 1285 Avenue of
the Americas, 19th Floor, New York, NY 10019, Telecopy Number (212)
713-7948, if to BT Alex. Brown Incorporated, to Debt Capital Markets,
attention: Kenneth Brause, 130 Liberty Street, 37th Floor, New York,
NY 10006, Telecopy Number (212) 669-5492, if to First Chicago Capital
Markets, Inc., to: Real Estate Capital Markets, attention: Leo E.
Subler, One First National Plaza, Chicago IL 60670, Telecopy Number
(312) 732-1117, if to NationsBanc Montgomery Securities LLC,
attention: Rick Baer, 231 South LaSalle Street, 12th Floor, Chicago,
IL 60697, Telecopy Number (312) 732-7954 and if to Salomon Smith
Barney Inc., to: Debt Capital Markets, attention: Peter O. Aherne, 7
World Trade Center, 42nd Floor, New York, NY 10048 for record keeping
purposes, one copy of such Pricing Supplement shall also be mailed to
Rogers & Wells LLP, 200 Park Avenue, 52nd Floor, New York, NY,
attention: Jay L. Bernstein, Telecopy Number (212) 878-8375, and if to
the Trustee, to: U.S. Bank Trust National Association, attention:
Harry Hall, 111 East Wacker Drive, Suite 3000, Chicago, IL 60601,
Telecopy Number (312) 228-9404 and the Designated Agent, if any. In
each instance that a Pricing Supplement is prepared, the Presenting
Agent will provide a copy of such Pricing Supplement to each investor
or purchaser of the relevant Notes or its agent. Pursuant to Rule 434
of the Securities Act of 1933, as amended, the Pricing Supplement may
be delivered separately from the Prospectus. No settlements with
respect to Notes upon such terms may occur prior to such transmitting
and such Agent will not, prior to such transmitting, mail
confirmations to customers who have offered to purchase Notes upon
such terms. After such transmitting, sales, mailing of confirmations
and settlements may occur with respect to Notes upon such terms,
subject to the provisions of "Delivery of Prospectus" below. Outdated
Stickers, and copies of the Prospectus to which they are attached
(other than those retained for files), will be destroyed.
B-23
<PAGE>
Suspension of Solicitation;
- --------------------------
Amendment or Supplement: As provided in the Agency Agreement, the Issuer may
- ----------------------- suspend solicitation of purchase at any time, and,
upon receipt of notice from the Issuer, the Agents
will as promptly as practicable, but in no event
later than one Business Day following such notice,
suspend solicitation until such time as the Issuer
has advised them that solicitation of purchases may
be resumed.
If the Agents receive the notice from the Issuer
contemplated by Section 4(b) of the Agency
Agreement, they will promptly suspend solicitation
and will only resume solicitation as provided in the
Agency Agreement. If the Issuer decides to amend or
supplement the Registration Statement or the
Prospectus relating to the Notes, it will promptly
advise the Agents and will furnish the Agents with
the proposed amendment or supplement in accordance
with the terms of the Agency Agreement. The Issuer
will promptly file or mail to the Commission for
filing such amendment or supplement, provide the
Agents with copies of any such amendment or
supplement, confirm to the Agents that such
amendment or supplement has been filed with the
Commission and advise the Agents that solicitation
may be resumed. Any such suspension shall not affect
the Issuer's obligations under the Agency Agreement;
and in the event that at the time the Issuer
suspends solicitation of purchases there shall be
any offers already accepted by the Issuer
outstanding for settlement, the Issuer will have the
sole responsibility for fulfilling such obligations;
the Agents will make reasonable efforts to assist
the Issuer to fulfill such obligations, but the
Agents will not be obligated to fulfill such
obligations. The Issuer will in addition promptly
advise the Agents and the Trustee if such offers are
not to be settled and if copies of the Prospectus as
in effect at the time of the suspension may not be
delivered in connection with the settlement of such
offers.
Delivery of Prospectus: A copy of the Prospectus, as most recently amended
- ---------------------- or supplemented on the date of delivery thereof
(except as provided below), must be delivered to a
purchaser prior to or together with the earlier of
delivery of (i) the written confirmation provided
for above, and (ii) any Note purchased by such
purchaser at the following address: if to
PaineWebber Incorporated, attention: David R.
Jarvis, 1285 Avenue of the Americas, 19th Floor, New
York, NY 10019, Telecopy Number (212) 713-7948, if
to BT Alex. Brown Incorporated, to Debt Capital
Markets, attention: Kenneth Brause, 130 Liberty
Street, 37th Floor, New York, NY
B-24
<PAGE>
10006, Telecopy Number (212) 669-5492, if to First
Chicago Capital Markets, Inc., to: Real Estate Capital Markets,
attention: Leo E. Subler, One First National Plaza, Chicago IL 60670,
Telecopy Number (312) 732-1117, if to NationsBanc Montgomery
Securities LLC, attention: Rick Baer, 231 South LaSalle Street, 12th
Floor, Chicago, IL 60697, Telecopy Number (312) 732-7954 and if to
Salomon Smith Barney Inc., to: Debt Capital Markets, attention: Peter
O. Aherne, 7 World Trade Center, 42nd Floor, New York, NY 10048 for
record keeping purposes, one copy of such Pricing Supplement shall
also be mailed to Rogers & Wells LLP, 200 Park Avenue, 52nd Floor, New
York, NY, attention: Jay L. Bernstein, Telecopy Number (212) 878-8375,
and if to the Trustee, to: U.S. Bank Trust National Association,
attention: Harry Hall, 111 East Wacker Drive, Suite 3000, Chicago, IL
60601, Telecopy Number (312) 228-9404 and the Designated Agent, if
any. The Issuer shall ensure that the Presenting Agent receives
copies of the Prospectus and each amendment or supplement thereto
(including appropriate Pricing Supplements) in such quantities and
within such time limits as will enable the Presenting Agent to deliver
such confirmation or Note to a purchaser as contemplated by these
procedures and in compliance with the preceding sentence. If, since
the date of acceptance of a purchaser's offer, the Prospectus shall
have been supplemented solely to reflect any sale of Notes on terms
different from those agreed to between the Issuer and such purchaser
or a change in posted rates not applicable to such purchaser, such
purchaser shall not receive the Prospectus as supplemented by such new
supplement, but shall receive the Prospectus as supplemented to
reflect the terms of the Notes being purchased by such purchaser and
otherwise as most recently amended or supplemented on the date of
delivery of the Prospectus.
B-25
<PAGE>
PART III. ADMINISTRATIVE PROCEDURES FOR MASTER NOTE METHOD OF BOOK-ENTRY NOTES
The following explains the administrative procedures for the Master Note
method of the DTC book-entry system. Any reference to "Book-Entry Notes" in
this Part III refers to the Master Note method (for a discussion of the Global
Note method of the book-entry system, see Part II above). (Certain generally
applicable administrative procedures are set forth in Part I above. See
"Issue/Authentication Date", "Price to Public", "Minimum Purchase",
"Authenticity of Signatures", "Advertising Cost", and "Business Day"). In
connection with the qualification of the Book-Entry Notes for eligibility in the
book-entry system maintained by DTC, the Trustee will perform the custodial,
document control and administrative functions described below, in accordance
with its respective obligations under a Letter of Representations (the "Letter")
from the Issuer and the Trustee to DTC dated as of the date hereof, and a
Medium-Term Note Certificate Agreement between the Trustee and DTC and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS"). Both Fixed and Floating Rate Notes denominated and payable in
U.S. dollars may be issued in book-entry form. Single and Multi-Indexed Notes
may also be issued in book-entry form.
Issuance: On or before any date of settlement (as defined
- -------- under "Settlement" below) for one or more Book-Entry
Notes represented by one or more Master Notes, the
Issuer will deliver one or more Pricing Supplements
(with a Prospectus and a Prospectus Supplement
attached thereto unless previously delivered to the
Trustee) to the Trustee identifying each issue of
Book-Entry Notes that have the same Stated Maturity,
redemption provisions, if any, Interest Payment
Dates, Original Issue Date, original issue discount
provisions, if any, and, in the case of Fixed Rate
Notes, interest rate, or, in case of Floating Rate
Notes, interest rate formula, initial interest rate,
Index Maturity, Interest Reset Period, Interest
Reset Dates, Spread or Spread Multiplier (if any),
minimum interest rate (if any) and maximum interest
rate (if any) and, in the case of Fixed Rate Notes
or Floating Rate Notes that are also Currency
Indexed Notes, Specified Currency, Indexed Currency,
Face Amount and Base Exchange Rate and the Base
Interest Rate, if any, or that are also Other
Indexed Notes, the same terms (all of the foregoing
are collectively referred to as the "Terms"). Each
Pricing Supplement shall be accompanied by a letter
from the Issuer (i) advising the Trustee that as of
the date of such letter, the Issuer has issued Notes
pursuant to the Indenture having the Terms specified
in such Pricing Supplement, (ii) confirming that
such Notes are debt obligations of the Issuer
referred to and evidenced by the Master Note
registered in the name of Cede & Co., as
B-26
<PAGE>
nominee for DTC and (iii) requesting the Trustee to
make an appropriate entry identifying such debt
obligations on the records of the Issuer maintained
by the Trustee. Each Book-Entry Note will be deemed
to have been dated and issued as of the settlement
date, which date shall be the Original Issue Date.
No Master Note will represent any Certificated Note.
Identification Numbers: The Issuer has arranged with the CUSIP Service
- ---------------------- Bureau of Standard & Poor's Ratings Services (the
"CUSIP Service Bureau") for the reservation of a
series of CUSIP numbers, consisting of approximately
900 CUSIP numbers relating to Book-Entry Notes. The
Trustee, the Issuer and DTC have obtained from the
CUSIP Service Bureau a written list of such reserved
CUSIP numbers. The Trustee will assign CUSIP numbers
to each issue of Book-Entry Notes identified by a
Pricing Supplement as described below under
Settlement Procedure "B". DTC will notify the CUSIP
Service Bureau periodically of the CUSIP numbers
that the Trustee has assigned to each issue of Book-
Entry Notes. The Trustee will notify the Issuer at
any time when fewer than 100 of the reserved CUSIP
numbers remain unassigned to issue of Book-Entry
Notes, and, if it deems necessary, the Issuer will
reserve additional CUSIP numbers for assignment to
issues of Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Issuer shall deliver a
list of such additional CUSIP numbers to the Trustee
and DTC.
Registration: The Master Note representing the Book-Entry Notes
- ------------ will be issued only in fully registered form without
coupons. The Master Note will be registered in the
name of Cede & Co., as nominee for DTC, on the
Securities Register maintained under the Indenture.
The beneficial owner of a Book-Entry Note (or one or
more indirect participants in DTC designated by such
owner) will designate one or more direct
participants in DTC (with respect to such Book-Entry
Note, the "Participants") to act as agent or agents
for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions
provided by such Participants, a credit balance with
respect to such Note in the account of such
Participants. The ownership interest of such
beneficial owner in such Book-Entry Note will be
recorded through the records of such Participants or
through the separate records of such Participants
and one or more indirect participants in DTC.
B-27
<PAGE>
Transfers: Transfers of a Book-Entry Note will be accomplished
- --------- by book entries made by DTC and, in turn, by
Participants (and, in certain cases, one or more
indirect participants in DTC) acting on behalf of
beneficial transferors and transferees of such Note.
Exchanges: The Trustee may deliver to DTC and the CUSIP Service
- --------- Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers set forth on two or
more Pricing Supplements that identify issues of
Book-Entry Notes having the same Terms and for which
interest has been paid to the same date, (ii) a
date, occurring at least thirty days after such
written notice is delivered and at least thirty days
before the next Interest Payment Date for such
issues of Book-Entry Notes, and (iii) a new CUSIP
number to be assigned to such issues of Book-Entry
Notes having the same terms. Upon receipt of such a
notice, DTC will send to its Participants (including
the Trustee) a written reorganization notice to the
effect that such exchange will occur on such date.
Prior to the specified exchange date, the Trustee
will deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and the new
CUSIP number and stating that, as of such exchange
date, the CUSIP numbers of the relevant issues of
Book-Entry Notes will no longer be valid. On the
specified exchange date, the CUSIP numbers of the
relevant issues of Book-Entry Notes will, in
accordance with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
Maturities: Each Issue of Book-Entry Notes will mature on a
- ---------- Business Day nine months or more from the settlement
date for such issue of Book-Entry Notes.
Notice of Repayment: With respect to each Book-Entry Note that is
- ------------------- repayable at the option of the Holder the Trustee
will furnish DTC on the settlement date pertaining
to such Book-Entry Note a notice setting forth the
terms of such repayment option. Such terms shall
include the start date and end dates of the first
exercise period, the purchase date following such
exercise period, the frequency that such exercise
periods occur (i.e., quarterly, semiannually,
---
annually, etc.) and if the repayment option expires
before maturity, the same information (except
frequency) concerning the last exercise period. It
is understood that the exercise period shall be at
least 15 calendar days long and that the purchase
date shall be at least seven calendar days after the
last day of the exercise period.
B-28
<PAGE>
Redemption and Repayment: The Trustee will comply with the terms of the Letter
- ------------------------ with regard to redemptions and repayments of the
Notes. If an issue of Book-Entry Notes is to be
redeemed or repaid in part, the Trustee will make
appropriate entries in its records to reflect the
remaining portion of such issue of Book Entry Notes,
which portion shall bear the same CUSIP number as
prior to the redemption or repayment, as the case
may be.
Denominations: Book-Entry Notes will be issued in principal amounts
- ------------- of $1,000 or any amount in excess thereof that is an
integral multiple of $1,000.
Interest: General. Interest on each Book-Entry Note will begin
- -------- -------
to accrue from the Original Issue Date of an issue
of Book-Entry Notes or from the most recent date to
which interest has been paid, as the case may be,
and will be calculated and paid in the manner
described in the Prospectus Supplement (as defined
in the Agency Agreement), as supplemented by the
applicable Pricing Supplement. Standard & Poor's
Ratings Services will use the information received
in the pending deposit message described under the
Settlement Procedure "C" below in order to include
the amount of any interest payable and certain other
information regarding the related issue of Book-
Entry Notes in the appropriate weekly bond report
published by Standard & Poor's Ratings Services.
Notice of Interest Payment
- --------------------------
and Regular Record Dates: On the first Business Day of January, April, July
- ------------------------ and October of each year, the Trustee will deliver
to the Issuer and DTC a written list of Regular
Record Dates and Interest Payment Dates that will
occur with respect to Book-Entry Notes during the
six-month period beginning on such first Business
Day. Promptly after each Interest Determination Date
or Calculation Date, as applicable (as set forth in
the Prospectus Supplement, as supplemented by the
applicable Pricing Supplement and pursuant to the
applicable Note) for Floating Rate Notes, the
Issuer, upon receiving notice thereof, will notify
Standard & Poor's Ratings Services of the interest
rate determined on such Interest Determination Date
or Calculation Date, as applicable.
Calculation of Interest: Interest on Fixed Rate Book-Entry Notes (including
- ----------------------- interest for partial periods) and interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the Prospectus
B-29
<PAGE>
Supplement, as supplemented by the applicable
Pricing Supplement, and pursuant to the applicable
form of Notes. With respect to Floating Rate Book-
Entry Notes, the Calculation Agent shall determine
the interest for each Interest Reset Date and
communicate such interest rate to the Issuer and the
Issuer will promptly notify the Trustee and the
Paying Agent of each such determination.
Payments of Principal and
- -------------------------
Payment of Interest
- -------------------
Only Interest: Promptly after each Regular Record Date, the Trustee
- ------------- will deliver to the Issuer and DTC a written notice
specifying by CUSIP number the amount of interest to
be paid on each issue of Book-entry Notes on the
following Interest Payment Date (other than an
Interest Payment Date coinciding with maturity) and
the total of such amounts. The Issuer will confirm
with the Trustee the amount payable on each issue of
Book-Entry Notes on such Interest Payment Date. DTC
will confirm the amount payable on each issue of
Book-Entry Notes on such Interest Payment Date by
reference to the daily or weekly bond reports
published by Standard & Poor's Ratings Services. The
Issuer will pay to the Trustee, as paying agent, the
total amount of interest due on such Interest
Payment Date (other than the maturity), and the
Trustee will pay such amount to DTC at the times and
in the manner set forth below under "Manner of
Payment".
Payments at Maturity. On or about the first Business
--------------------
Day of each month, the Trustee will deliver to the
Issuer and DTC a written list of principal and
interest to be paid on each issue of Book-Entry
Notes represented by a single CUSIP number maturing
either at Stated Maturity or on a Redemption or
Repayment Date in the following month. The Issuer,
the Trustee and DTC will confirm the amounts of such
principal and interest payments with respect to each
such issue of Book-Entry Notes on or about the fifth
Business Day preceding the maturity of such issue of
Book-Entry Notes. The Issuer will pay to the
Trustee, as paying agent, the principal amount of
each issue of Book-Entry Notes identified by a
single CUSIP number, together with interest due at
such maturity. The Trustee will pay such amounts to
DTC at the times and in the manner set forth below
under "Manner of Payment". Promptly after payment to
DTC of the principal and interest due at the
maturity of each issue of Book-Entry Notes, the
Trustee will reduce the principal amount of the
Master Note
B-30
<PAGE>
representing the issue of Book-Entry Notes and so
advise the Issuer.
Manner of Payment. The total amount of any
-----------------
principal and interest due on each issue of Book-
Entry Notes identified by a single CUSIP number on
any Interest Payment Date or at maturity shall be
paid by the Issuer to the Trustee in funds available
for use by the Trustee as of 9:30 A.M. (New York
City time), or as soon as practicable thereafter on
such date. The Issuer will confirm instructions
regarding payment in writing to the Trustee. Prior
to 10:00 A.M. (New York City time) on each Maturity
Date or as soon as possible thereafter, following
receipt of such funds from the Issuer, the Trustee
will pay by separate wire transfer (using Fedwire
message entry instructions in a form previously
specified by DTC) to an account at the Federal
Reserve Bank of New York previously specified by
DTC, in funds available for immediate use by DTC,
each payment of principal (together with interest
thereon) due on each issue of Book-Entry Notes on
any Maturity Date. On each Interest Payment Date,
interest payments shall be made to DTC in same-day
funds in accordance with existing arrangements
between the Trustee and DTC. Thereafter, on each
such date, DTC will pay, in accordance with its SDFS
operating procedures then in effect, such amounts in
funds available for immediate use to the respective
Participants in whose names the Book-Entry
represented by the Master Note are recorded in the
book-entry system maintained by DTC. Neither the
Issuer nor the Trustee shall have any direct
responsibility or liability for the payment by DTC
to such Participants of the principal of and
interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required
-----------------
under applicable law to be withheld from any
interest payment on a Book-Entry Note will be
determined and withheld by the Participant, indirect
participant in DTC or other Person responsible for
forwarding payments and materials directly to the
beneficial owner of such Note.
Acceptance of Offers: Each Agent will promptly advise the Issuer of each
- -------------------- reasonable offer to purchase Notes received by it,
other than those rejected by the Agent. Such Agent
may, in its discretion reasonably exercised, without
notice to the Issuer, reject any offer received by
it, in whole or in part. The Issuer will have the
sole right to accept offers to purchase Notes and
may reject any such offer, in
<PAGE>
whole or in part. If the Issuer rejects an offer,
the Issuer will promptly notify such Agent.
Settlement: The receipt by the Issuer of immediately available
- ---------- funds in payment for a Book-Entry Note and receipt
by the Trustee of a property completed by the
Trustee of a properly completed Pricing Supplement
shall constitute "settlement" with respect to such
Book-Entry Note. All orders accepted by the Issuer
will be settled on the third Business Day from the
date of the sale pursuant to the timetable for
settlement set forth below unless the Issuer and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day.
Settlement Procedures: Settlement Procedures with regard to each Book-Entry
- --------------------- Note sold by the Issuer through an Agent as agent,
shall be as follows:
For each offer accepted by the Issuer, the
Presenting Agent shall communicate to the Issuer,
Attention: Thomas P. D'Arcy, CEO or Irving E. Lingo,
Jr., CFO (Fax No.: (847) 480-1839) who will provide
a copy to the Trustee, Attention: Harry Hall (Fax
No.: (831) 228-9459), and the Designated Agent, if
any, by facsimile transmission or other acceptable
means, the information set forth below:
Principal amount.
Maturity Date of Notes.
In the case of a Fixed Rate Book-Entry Note, the
interest rate or, in the case of a Floating Rate
Book-Entry Note, the interest rate formula, the
Initial Interest Rate (if known at such time), Index
Maturity, Interest Reset Period, Interest Reset
Dates, Spread or Spread Multiplier (if any), minimum
interest rate (if any) and maximum interest rate (if
any).
Interest Payment Period and Interest Payment Dates.
Redemption provisions, if any.
Repayment provisions, if any.
Settlement date (Original Issue Date).
Price to public of the Note (expressed as a
percentage).
B-32
<PAGE>
Agent's commission (to be paid in the form of a discount from the
proceeds remitted to the Issuer upon settlement).
Original issue discount provisions if any.
In the case of Currency Indexed Notes, the above-listed information,
as applicable, and the Base Exchange Rate(s), Base Interest Rate and
Indexed Currencies.
In the case of Dual Currency Notes, the above-listed information, as
applicable, and the Optional Payment Currency, Designated Exchange
Rate and Optional Election Dates.
Net proceeds to the Issuer.
The Trustee will confirm the information set forth in Settlement
Procedure "A" above by telephone with such Agent and the Issuer.
The Trustee will assign a CUSIP number to the issue of Book-Entry
Notes and will telephone the Issuer and notify the Issuer of such
CUSIP number. The Trustee will enter a pending deposit message
through DTC's Participant Terminal System, providing the following
settlement information to DTC (which shall route such information to
Standard & Poor's Ratings Services) and the Presenting Agent:
The applicable information set forth in Settlement Procedure "A".
Identification as a Fixed Rate Book-Entry Note or a Floating Rate
Book-Entry Note.
Initial Interest Payment Date for each issue of Book-Entry Notes of
days by which such date succeeds the related DTC Record Date (which,
in the case of Floating Rate Notes which reset daily or weekly shall
be the date five calendar days immediately preceding the applicable
Interest Payment Date and in the case of all other Notes shall be the
Regular Record Date as defined in the Prospectus Supplement), the
amount of interest payable on such Interest Payment Date per $1,000
principal amount of Notes at Maturity, and amount of interest payable
per $1,000 principal amount of Notes in the case of Fixed Rate Notes.
B-33
<PAGE>
CUSIP number of the such issue of Book-Entry Notes.
Whether such CUSIP number will identify any other issue of Book-Entry
Notes (to the extent known at such time).
To the extent the Issuer has not already done so, the Issuer will
deliver to the Trustee a Pricing Supplement in a form that has been
approved by the Issuer and the Agents and a letter advising of the
relevant Issuance.
DTC will credit such Book-Entry Notes to the Trustee's participant
account at DTC.
The Trustee will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC to (i) debit such Book-Entry Notes to
the Trustee's participant account and credit such Book-Entry Notes to
such Agent's participant account and (ii) debit such Agent's
settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Notes less such Agent's
commission. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC that (i) such Book-
Entry Notes have been executed, delivered and authenticated and (ii)
the Trustee is holding the Master Note representing such Book-Entry
Notes pursuant to the relevant Medium-Term Note Certificate Agreement
between the Trustee and DTC.
An Agent will enter an SDFS deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit such Note to such Agent's
participant account and credit such Note to the participant accounts
of the Participants with respect to such Note and (ii) to debit the
settlement accounts of such Participants and credit the settlement
account of such Agent for an amount equal to the price of such Note.
Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with
SDFS operating procedures in effect on the settlement date.
The Trustee, upon confirming receipt of such funds in accordance with
Settlement Procedure "F", will wire transfer to the account of the
Issuer maintained at BankBoston, N.A. (ABA # 011000390 Account No.
526-76237) in funds available for immediate use,
B-34
<PAGE>
the amount transferred to the Trustee in accordance
with Settlement Procedure "F".
An Agent will confirm the purchase of such Note to
the purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by mailing a
written confirmation to such purchaser.
Settlement Procedures
- ---------------------
Timetable: For orders of Book-Entry Notes solicited by an
- --------- Agent, as agent, and accepted by the Issuer for
settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "J" set
forth above shall be completed as soon as possible
but not later than the respective times (New York
City time) set forth below:
SETTLEMENT
PROCEDURE TIME
A 11:00 a.m. on the sale date
B 12:00 noon on the sale date
C 2:00 p.m. on the sale date
D 3:00 p.m. on the day before
settlement
E 9:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I-J 5:00 p.m. on settlement date
If a sale is to be settled two Business Days after
the sale date, Settlement Procedure "A", "B" and "C"
shall be completed as soon as practicable but not
later than 11:00 a.m., 12:00 noon and 2:00 p.m., as
the case may be, on the first Business Day after the
sale date.
If a sale is to be settled more than two Business
Days after the sale date, Settlement Procedure "A"
shall be completed as soon as practicable but no
later than 11:00 a.m. on the first Business Day
after the sale date and Settlement Procedures "B"
and "C" shall be completed as soon as practicable
but no later than 12:00 noon and 2:00 p.m., as the
case may be, on the second Business Day before the
settlement date. If the initial interest rate for a
Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A"
is completed, Settlement
B-35
<PAGE>
Procedures "B" and "C" shall be completed as soon as
such rate has been determined but not later than
12:00 noon and 2:00 p.m., respectively, on the
Business Day before the settlement date. Settlement
Procedure "H" is subject to extension in accordance
with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating
procedures in effect on the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, the Trustee, upon receipt of notice from
the Issuer, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the
Business Day immediately preceding the scheduled
settlement date.
Failure to Settle: If an Agent or Trustee fails to enter an SDFS
- ----------------- deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "F", the Trustee
may deliver to DTC, through DTC's Participant
Terminal System, as soon as practicable, a
withdrawal message instructing DTC to debit such
note to the Trustee's participant account. DTC will
process the withdrawal message, provided that the
Trustee's participant account contains a principal
amount of Book-Entry Notes represented by the Master
Note that is at least equal to the principal amount
to be debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes identified
by a single CUSIP number, the Trustee will advise
the Issuer and will make appropriate entries in its
records. The CUSIP number assigned to such issue of
Book-Entry Notes shall, in accordance with CUSIP
Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all,
of the issue of Book-Entry Notes identified by a
single CUSIP number, the Trustee will advise the
Issuer and will make appropriate entries in its
records.
If the purchase price for any Book-Entry Note is not
timely paid to the Participants with respect to such
Note by the beneficial purchaser thereof (or a
person, including an indirect participant in DTC,
acting on behalf of such purchaser), such
Participants and, in turn, the Presenting Agent may
enter SDFS deliver orders through DTC's Participant
Terminal system reversing the orders entered
pursuant to Settlement Procedures "F" and "G",
respectively. Thereafter, the Trustee will deliver
the withdrawal message and take the applicable
related actions described in the preceding
paragraph. If such failure shall have occurred for
any
B-36
<PAGE>
reason other than the failure by the Presenting
Agent to provide the Purchase Information to the
Issuer or to provide a confirmation to the
purchaser, the Issuer will reimburse the Presenting
Agent on an equitable basis for its loss of the use
of the funds during the period when they were
credited to the account of the Issuer.
Notwithstanding the foregoing, upon any failure to
settle with respect to a Book-Entry Note, DTC may
take any actions in accordance with its SDFS
operating procedures then in effect.
Periodic Statements
- -------------------
from the Trustee: Periodically, the Trustee will send to the Issuer a
- ---------------- statement setting forth the principal amount of
Book-Entry Notes outstanding as of that date and
setting forth a brief description of any sales of
Book-Entry Notes of which the Issuer has advised the
Trustee but which have not yet been settled.
Procedure for
- -------------
Rate Changes: The Issuer and each Agent will discuss from time to
- ------------ time the price of, and the rates to be borne by, the
Notes that may be sold as a result of the
solicitation of offers by any Agent. Once an Agent
has recorded any indication of interest in Notes
upon certain terms, and communicated with the
Issuer, if the Issuer plans to accept an offer to
purchase Notes upon such terms, it will prepare a
Pricing Supplement to the Prospectus, as then
amended or supplemented, reflecting the terms of
such Notes and will arrange to transmit such Pricing
Supplement to the Commission for filing in
accordance with and within the time prescribed by
the applicable paragraph of Rule 424(b) under the
Act. The Issuer will supply at least two copies of
the Prospectus as then amended or supplemented, and
bearing such Pricing Supplement, to the Presenting
Agent. No settlements with respect to Notes upon
such terms may occur prior to such transmitting and
such Agent will not, prior to such transmitting,
mail confirmations to customers who have offered to
purchase Notes upon such terms. After such
transmitting, sales and mailing of confirmations and
settlements may occur with respect to Notes upon
such terms, subject to the provisions of "Delivery
of Prospectus" below.
Outdated Stickers, and copies of the Prospectus to
which they are attached (other than those retained
for files), will be destroyed.
B-37
<PAGE>
Suspension of Solicitation;
- ---------------------------
Amendment or Supplement: As provided in the Agency Agreement, the Issuer may
- ----------------------- suspend solicitation of purchase at any time, and,
upon receipt of notice from the Issuer, the Agents
will as promptly as practicable, but in no event
later than one Business Day following such notice,
suspend solicitation until such time as the Issuer
has advised them that solicitation of purchases may
be resumed.
If the Agents receive the notice from the Issuer
contemplated by Section 4(b) of the Agency
Agreement, they will promptly suspend solicitation
and will only resume solicitation as provided in the
Agency Agreement. If the Issuer decides to amend or
supplement the Registration Statement or the
Prospectus relating to the Notes, it will promptly
advise the Agents and will furnish the Agents with
the proposed amendment or supplement in accordance
with the terms of the Agency Agreement. The Issuer
will promptly file or mail to the Commission for
filing such amendment or supplement, provide the
Agents with copies of any such amendment or
supplement, confirm to the Agents that such
amendment or supplement has been filed with the
Commission and advise the Agents that solicitation
may be resumed. Any such suspension shall not affect
the Issuer's obligations under the Agency Agreement;
and in the event that at the time the Issuer
suspends solicitation of purchases there shall be
any offers already accepted by the Issuer
outstanding for settlement, the Issuer will have the
sole responsibility for fulfilling such obligations;
the Agents will make reasonable efforts to assist
the Issuer to fulfill such obligations, but the
Agents will not be obligated to fulfill such
obligations. The Issuer will in addition promptly
advise the Agents and the Trustee if such offers are
not to be settled and if copies of the Prospectus as
in effect at the time of the suspension may not be
delivered in connection with the settlement of such
offers.
Delivery of Prospectus: A copy of the Prospectus, as most recently amended
- ---------------------- or supplemented on the date of delivery thereof
(except as provided below), must be delivered to a
purchaser prior to or together with the earlier of
delivery of (i) the written confirmation provided
for above, and (ii) any Note purchased by such
purchaser at the following address: if to
PaineWebber Incorporated, attention: David R.
Jarvis, 1285 Avenue of the Americas, 19th Floor, New
York, NY 10019, Telecopy Number (212) 713-7948, if
to BT Alex. Brown Incorporated, to Debt Capital
Markets, attention: Kenneth Brause, 130 Liberty
Street, 37th Floor, New York, NY
B-38
<PAGE>
10006, Telecopy Number (212) 669-5492, if to First
Chicago Capital Markets, Inc., to: Real Estate
Capital Markets, attention: Leo E.Subler, One First
National Plaza, Chicago IL 60670, Telecopy Number
(312) 732-1117, if to NationsBanc Montgomery
Securities LLC, attention: Rick Baer, 231 South
LaSalle Street, 12th Floor, Chicago, IL 60697,
Telecopy Number (312) 732-7954 and if to Salomon
Smith Barney Inc., to Debt Capital Markets,
attention: Peter O. Aherne, 7 World Trade Center,
42nd Floor, New York, N.Y. 10048 for record keeping
purposes, one copy of such Pricing Supplement shall
also be mailed to Rogers & Wells LLP, 200 Park
Avenue, 52nd Floor, New York, NY, attention: Jay L.
Bernstein, Telecopy Number (212) 878-8375, and if to
the Trustee, to: U.S. Bank Trust National
Association, attention: Harry Hall, 111 East Wacker
Drive, Suite 3000, Chicago, IL 60601, Telecopy
Number (312) 228-9404 and the Designated Agent, if
any. The Issuer shall ensure that the Presenting
Agent receives copies of the Prospectus and each
amendment or supplement thereto (including
appropriate Pricing Supplements) in such quantities
and within such time limits as will enable the
Presenting Agent to deliver such confirmation or
Note to a purchaser as contemplated by these
procedures and in compliance with the preceding
sentence. If, since the date of acceptance of a
purchaser's offer, the Prospectus shall have been
supplemented solely to reflect any sale of Notes on
terms different from those agreed to between the
Issuer and such purchaser or a change in posted
rates not applicable to such purchaser, such
purchaser shall not receive the Prospectus as
supplemented by such new supplement, but shall
receive the Prospectus as supplemented to reflect
the terms of the Notes being purchased by such
purchaser and otherwise as most recently amended or
supplemented on the date of delivery of the
Prospectus.
B-39
<PAGE>
SCHEDULE I
----------
As compensation for the services of an Agent hereunder, the Operating
Partnership shall pay such Agent, on a discount basis, a commission for the sale
of each Note equal to the principal amount of such Note multiplied by the
appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- -----------------
<S> <C>
From 9 months to less than 1 year ............... .125%
From 1 year to less than 18 months .............. .150
From 18 months to less than 2 years ............. .200
From 2 years to less than 3 years ............... .250
From 3 years to less than 4 years ............... .350
From 4 years to less than 5 years ............... .450
From 5 years to less than 6 years ............... .500
From 6 years to less than 7 years ............... .550
From 7 years to less than 10 years .............. .600
From 10 years to less than 15 years ............. .625
From 15 years to less than 20 years ............. .700
From 20 years to 30 years ....................... .750
Greater than 30 years ........................... *
</TABLE>
- ------------------
* As agreed to by the Operating Partnership and such Agent at the time of
sale.
<PAGE>
SCHEDULE II
-----------
LIST OF SUBSIDIARIES OF THE
TRANSACTION ENTITIES
Bradley Financing Corp.
Bradley Financing Partnership
Bradley Management Corp.
Bradley Management Limited Partnership
Williamson Square Associates Limited Partnership
Bradley Midwest Management, Inc.
Bradley Real Estate Management, Inc.
Bradley Spring Mall, Inc.
Bradley Spring Mall Limited Partnership
Bradley Management LLC
Bradley Bethal Limited Partnership
<PAGE>
EXHIBIT 4.1
- --------------------------------------------------------------------------------
BRADLEY OPERATING LIMITED PARTNERSHIP
TO
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
-------------------
Indenture
Dated as of September 28, 1998
-------------------
Senior Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
RECITALS OF THE COMPANY .................................................. 1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION .... 1
SECTION 101. Definitions ..................................................1
SECTION 102. Compliance Certificates and Opinions ........................11
SECTION 103. Form of Documents Delivered to Trustee ......................12
SECTION 104. Acts of Holders .............................................12
SECTION 105. Notices, etc., to Trustee and Partnership ...................14
SECTION 106. Notice to Holders: Waiver ...................................15
SECTION 107. Counterparts; Effect of Headings and Table of Contents ......16
SECTION 108. Successors and Assigns ......................................16
SECTION 109. Severability Clause .........................................16
SECTION 110. Benefits of Indenture .......................................16
SECTION 111. Governing Law ...............................................16
SECTION 112. Legal Holidays ..............................................16
SECTION 113. Non-Recourse ................................................17
SECTION 114. Conflict with Trust Indenture Act ...........................17
ARTICLE TWO - SECURITIES FORMS ............................................17
SECTION 201. Forms of Securities .........................................17
SECTION 202. Form of Trustee's Certificate of Authentication .............18
SECTION 203. Securities Issuable in Global Form ..........................18
ARTICLE THREE - THE SECURITIES ............................................20
SECTION 301. Amount Unlimited; Issuable in Series ........................20
SECTION 302. Denominations ...............................................23
SECTION 303. Execution, Authentication, Delivery and Dating ..............23
SECTION 304. Temporary Securities ........................................26
SECTION 305. Registration, Registration of Transfer and Exchange .........28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities ............32
SECTION 307. Payment of Interest; Interest Rights Preserved ..............33
SECTION 308. Persons Deemed Owners .......................................35
SECTION 309. Cancellation ................................................36
SECTION 310. Computation of Interest .....................................36
ARTICLE FOUR - SATISFACTION AND DISCHARGE .................................36
SECTION 401. Satisfaction and Discharge of Indenture .....................36
SECTION 402. Application of Trust Funds ..................................38
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE FIVE - REMEDIES ...................................................38
SECTION 501. Events of Default ...........................................38
SECTION 502. Acceleration of Maturity; Rescission and Annulment ..........40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee ............................................................. 41
SECTION 504. Trustee May File Proofs of Claim ............................42
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons ............................................... 43
SECTION 506. Application of Money Collected ..............................43
SECTION 507. Limitation on Suits .........................................44
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, if any, and Interest ...................44
SECTION 509. Restoration of Rights and Remedies ..........................44
SECTION 510. Rights and Remedies Cumulative ..............................45
SECTION 511. Delay or Omission Not Waiver ................................45
SECTION 512. Control by Holders of Securities ............................45
SECTION 513. Waiver of Past Defaults .....................................46
SECTION 514. Waiver of Usury, Stay or Extension Laws .....................46
SECTION 515. Undertaking for Costs .......................................46
ARTICLE SIX - THE TRUSTEE .................................................47
SECTION 601. Notice of Defaults ..........................................47
SECTION 602. Certain Rights of Trustee ...................................47
SECTION 603. Not Responsible for Recitals or Issuance of Securities ......49
SECTION 604. May Hold Securities .........................................49
SECTION 605. Money Held in Trust .........................................49
SECTION 606. Compensation and Reimbursement ..............................49
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests ............................................................50
SECTION 608. Resignation and Removal; Appointment of Successor ...........50
SECTION 609. Acceptance of Appointment by Successor ......................52
SECTION 610. Merger, Conversion, Consolidation or Succession to Business..53
SECTION 611. Appointment of Authenticating Agent .........................53
SECTION 612. Certain Duties and Responsibilities of the Trustee ..........55
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND PARTNERSHIP .....56
SECTION 701. Disclosure of Names and Addresses of Holders ................56
SECTION 702. Reports by Trustee ..........................................56
SECTION 703. Reports by Partnership ......................................57
SECTION 704. Partnership to Furnish Trustee Names and Addresses of
Holders ..............................................................57
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE ..........58
SECTION 801. Consolidations and Mergers of Partnership and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions .......58
SECTION 802. Rights and Duties of Successor Entity .......................58
SECTION 803. Officers' Certificate and Opinion of Counsel ................59
ARTICLE NINE - SUPPLEMENTAL INDENTURES ....................................59
SECTION 901. Supplemental Indentures Without Consent of Holders ..........59
SECTION 902. Supplemental Indentures with Consent of Holders .............61
SECTION 903. Execution of Supplemental Indentures ........................62
SECTION 904. Effect of Supplemental Indentures ...........................62
SECTION 905. Conformity with Trust Indenture Act .........................62
SECTION 906. Reference in Securities to Supplemental Indentures ..........62
ARTICLE TEN - COVENANTS ...................................................62
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if
any; and Interest ....................................................62
SECTION 1002. Maintenance of Office or Agency ............................63
SECTION 1003. Money for Securities Payments to Be Held in Trust ..........64
SECTION 1004. Existence ..................................................66
SECTION 1005. Maintenance of Properties ..................................66
SECTION 1006. Insurance ..................................................66
SECTION 1007. Payment of Taxes and Other Claims ..........................66
SECTION 1008. Statement as to Compliance .................................67
SECTION 1009. Waiver of Certain Covenants ................................67
ARTICLE ELEVEN - REDEMPTION OF SECURITIES .................................67
SECTION 1101. Applicability of Article ...................................67
SECTION 1102. Election to Redeem; Notice to Trustee ......................67
SECTION 1103. Selection by Trustee of Securities to Be Redeemed ..........67
SECTION 1104. Notice of Redemption .......................................68
SECTION 1105. Deposit of Redemption Price ................................69
SECTION 1106. Securities Payable on Redemption Date ......................70
SECTION 1107. Securities Redeemed in Part ................................71
ARTICLE TWELVE - SINKING FUNDS ............................................71
SECTION 1201. Applicability of Article ...................................71
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities ......71
SECTION 1203. Redemption of Securities for Sinking Fund ..................72
</TABLE>
(iii)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS .....................72
SECTION 1301. Applicability of Article ...................................72
SECTION 1302. Repayment of Securities ....................................72
SECTION 1303. Exercise of Option .........................................73
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable ..............................................................73
SECTION 1305. Securities Repaid in Part ..................................74
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE .....................75
SECTION 1401. Applicability of Article: Partnership's Option to Effect
Defeasance or Covenant Defeasance ....................................75
SECTION 1402. Defeasance and Discharge ...................................75
SECTION 1403. Covenant Defeasance ........................................75
SECTION 1404. Conditions to Defeasance or Covenant Defeasance ............76
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions ................................78
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES .......................79
SECTION 1501. Purposes for Which Meetings May Be Called ..................79
SECTION 1502. Call, Notice and Place of Meetings .........................79
SECTION 1503. Persons Entitled to Vote at Meetings .......................79
SECTION 1504. Quorum; Action .............................................80
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings .............................................................81
SECTION 1506. Counting Votes and Recording Action of Meetings ............82
SIGNATURES AND SEALS ......................................................83
ACKNOWLEDGMENT ............................................................84
EXHIBIT A FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY ............A-1
EXHIBIT B FORMS OF CERTIFICATION ..........................................B-1
</TABLE>
(iv)
<PAGE>
BRADLEY OPERATING LIMITED PARTNERSHIP
Reconciliation and tie between Trust Indenture Act of 1939 (the "Trust
Indenture Act" or "TIA") and Indenture, dated as of September 12, 1997.
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
----------------- -----------------
<S> <C>
(S)310(a)(1)............................. 607
(a)(2)............................. 607
(b)............................. 607, 608
(S)312(c)............................. 701
(S)313(a)............................. 702
(c)............................. 702
(S)314(a)............................. 703
(a)(4)............................. 1009
(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
</TABLE>
_______________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to TIA Section 318(c), which provides
that the provisions of TIA Sections 310 to and including 317 of the Trust
Indenture Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
(v)
<PAGE>
INDENTURE, dated as of September 28, 1998, between BRADLEY OPERATING
LIMITED PARTNERSHIP, a limited partnership organized under the laws of the State
of Delaware (hereinafter called the "Partnership"), having its principal office
at 40 Skokie Boulevard, Northbrook, Illinois 60062, and U.S. BANK TRUST NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States of America, as Trustee hereunder (hereinafter called the
"Trustee"), having its principal office at 111 East Wacker Drive, Suite 3000,
Chicago, Illinois, 60601.
RECITALS OF THE COMPANY
The Partnership deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and senior indebtedness, and has duly authorized the
execution and delivery of this Indenture to provide for the issuance from time
to time of the Securities, to be issued in one or more Series as provided in
this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act" or "TIA"), 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
Partnership, 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;
<PAGE>
(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.
"Act," when used with respect to any Holder, has the meaning specified in
---
Section 104.
"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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
--------------------
to Section 611 hereof to act on behalf of the Trustee to authenticate
Securities.
"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 the Company, as
------------------
general partner of the Partnership, or any committee of that board duly
authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by the Secretary
----------------
or an Assistant Secretary of the Company, as general partner of the Partnership,
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any other
------------
particular location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities issued pursuant to
Section 301, any day, other than a
2
<PAGE>
Saturday or Sunday, that is not 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.
"Capital Stock" of any Person means any and all shares, interests,
-------------
participations, rights to purchase, warrants, options or other equivalents
(however designated) of corporate stock or other equity of such Person.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
-----
successor.
"Commission" means the Securities and Exchange Commission, as from time to
----------
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
"Common Stock" means, with respect to any Person, all shares of capital
------------
stock issued by such Person other than Preferred Stock.
"Company" means Bradley Real Estate, Inc., a Maryland corporation and the
-------
general partner of the Partnership, or any successor corporation thereto.
"Company Request" and "Company Order" mean, respectively, a written request
--------------- -------------
or order signed in the name of the Company, as general partner of the
Partnership, by its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary and delivered to
the Trustee.
"Consolidated Net Assets" means as of any particular time the aggregate
-----------------------
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom all current liabilities except for (a) notes and loans
payable, (b) current maturities of long-term debt and (c) current maturities of
obligations under capital leases, all as set forth on the most recent
consolidated balance sheet of the Partnership and its consolidated Subsidiaries
and computed in accordance with generally accepted accounting principles and
practices as in effect on the date of this Indenture.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
----------------
both by the government of the country which issued such currency and for the
settlement of transactions by a central bank or other public institutions of or
within the international banking community, (ii) the ECU both within the
European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (iii) any currency unit
(or composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which, at any
----------------------
particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 111 East Wacker Drive, Suite 3000,
Chicago, Illinois 60601, Attention: Corporate Trust Department.
3
<PAGE>
"corporation" includes corporations, associations, companies and business
-----------
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"Custodian" has the meaning specified in Section 501.
---------
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
------ -
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from time to
---
time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
office, or its successor as operator of the Euroclear System.
"European Communities" means the European Economic Community, the European
--------------------
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System established
------------------------
by the Resolution of December 5, 1978 of the Council of the European
Communities.
"Event of Default" has the meaning specified in Article Five.
----------------
"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, except as otherwise provided herein, generally accepted
----
accounting principles, as in effect from time to time, as used in the United
States applied on a consistent basis.
"Global Security" means a Security evidencing all or a part of a series of
---------------
Securities issued to and registered in the name of the depository for such
series, or its nominee, in accordance with Section 305, and bearing the legend
prescribed in Section 203.
4
<PAGE>
"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.
"Guaranty" by any Person means any Obligation, contingent or otherwise, of
--------
such Person guaranteeing any Indebtedness of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, and including, without
limitation, every Obligation of such Person (i) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Indebtedness or to purchase
(or to advance or supply funds for the purchase of) any security for the payment
of such Indebtedness, (ii) to purchase property, securities or services for the
purpose of assuring the holder of such Indebtedness of the payment of such
Indebtedness or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such Indebtedness; provided, however, that a
-------- -------
Guaranty by any Person shall not include endorsements by such Person for
collection or deposit, in either case in the ordinary course of business. The
terms "Guaranteed," "Guaranteeing" and "Guarantor" shall have meanings
correlative to the foregoing.
"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.
"Indebtedness" means, with respect to any Person, without duplication, (i)
------------
any Obligation of such Person relating to any indebtedness of such Person (A)
for borrowed money (whether or not the recourse of the lender is to the whole of
the assets, of such person or only to a portion thereof), (B) evidenced by
notes, debentures or similar instruments (including purchase money obligations)
given in connection with the acquisition of any property or assets (other than
trade accounts payable for inventory or similar property acquired in the
ordinary course of business), including securities, for the payment of which
such Person is liable, directly or indirectly, or the payment of which is
secured by a lien, charge or encumbrance on
5
<PAGE>
property or assets of such Person, (C) for goods, materials or services
purchased in the ordinary course of business (other than trade accounts payable
arising in the ordinary course of business), (D) with respect to letters of
credit or bankers acceptances issued for the account of such Person or
performance, surety or similar bonds, (E) for the payment of money relating to a
Capitalized Lease Obligation or (F) under interest rate swaps, caps or similar
agreements and foreign exchange contracts, currency swaps or similar agreements;
(ii) any liability of others of the kind described in the preceding clause (i),
which such Person has Guaranteed or which is otherwise its legal liability; and
(iii) any and all deferrals, renewals, extensions and refunding of, or
amendments, modifications or supplements to, any liability of the kind described
in any of the preceding clauses (i) or (ii).
"Indenture" means this instrument as originally executed or as it may be
---------
supplemented or amended from time to time 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 be supplemented or amended from
time to time by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities 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.
"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.
"Interest Payment Date," when used with respect to any Security, means the
---------------------
Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount," when used with respect to any Security, means the
-----------------
amount, if any, in addition to principal which is required by a Security, under
the terms and conditions specified therein or as otherwise specified as
contemplated by Section 301, to be paid by the Partnership to the Holder thereof
in connection with any optional redemption or accelerated payment of such
Security.
6
<PAGE>
"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.
"Obligation" of any Person with respect to any specified Indebtedness means
----------
any obligation of such Person to pay principal, premium, interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to such Person, whether or not a claim for such post-
petition interest is allowed in such Proceeding), penalties, reimbursement or
indemnification amounts, fees, expenses or other amounts relating to such
Indebtedness.
"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 the Company, as
general partner of the Partnership, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
------------------
for the Partnership or who may be an employee of or other counsel for the
Partnership and who shall be 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
(including 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 Partnership) in trust or set aside and segregated in trust
by the Partnership (if the Partnership shall act as its own Paying Agent)
for the Holders of such Securities and any coupons appertaining thereto;
provided, however, 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;
7
<PAGE>
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Partnership has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; 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 Partnership.
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 Partnership, of the principal amount (or,
in the case of an Original Issue Discount Security, the Dollar equivalent as of
such date of original issuance of the amount determined as provided in clause
(i) above) of such Security, (iii) the principal amount of any Indexed Security
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 Partnership or any other obligor upon the Securities or any Affiliate of
the Partnership 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 actually knows to be so owned shall be so disregarded.
Securities owned as provided in clause (iv) above 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 Partnership or any other obligor upon
the Securities or any Affiliate of the Partnership or of such other obligor. In
case of a dispute as to such right, the advice of counsel shall be full
protection in respect of any decision made by the Trustee in accordance with
such advice.
8
<PAGE>
"Partnership Request" means a written request signed in the name of the
-------------------
Partnership by the Chairman of the Board of Directors, President or a Vice
President, Treasurer or Assistant Treasurer, or Secretary or Assistant Secretary
of the Company as general partner of the Partnership and delivered to the
Trustee.
"Paying Agent" means any Person authorized by the Partnership to pay the
------------
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities or coupons on behalf of the Partnership.
"Person" means any individual, corporation, partnership, joint venture,
------
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of or within
----------------
any series, means the place or places where the principal of (and premium or
Make-Whole Amount, 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 the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Preferred Stock" means, with respect to any Person, all capital stock
---------------
issued by such Person that are entitled to a preference or priority over any
other capital stock issued by such Person with respect to any distribution of
such Person's assets, whether by dividend or upon any voluntary or involuntary
liquidation, dissolution or winding up.
"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.
9
<PAGE>
"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 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, any assistant treasurer, any trust officer or assistant trust officer
or any other officer serving in the Corporate Trust Department 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.
"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 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 1933, as amended) of the Partnership.
"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.
"Subsidiary" means a corporation a majority of the outstanding voting stock
----------
of which is owned, directly or indirectly, by the Partnership or by one or more
other Subsidiaries of the Partnership. For the purposes of this definition,
"voting stock" means stock having voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
10
<PAGE>
"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.
"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, partnership or other entity
created or organized in or under the laws of the United States or an estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time of
-----------------
issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any application
------------------------------------
or request by the Partnership to the Trustee to take any action under any
provision of this Indenture, the Partnership 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 1008) 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;
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<PAGE>
(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 with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company, as general partner
of the Partnership, 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, as general partner of the Partnership, stating that the
information as to such factual matters is in the possession of the Company, as
general partner of the Partnership, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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
12
<PAGE>
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 Partnership. 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
Partnership and any agent of the Trustee or the Partnership, 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. As to any matter relating to beneficial ownership interests
in any Global Security, the appropriate depository's records shall be
dispositive for purposes of this Indenture.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depository, by any
trust company, bank, banker or other depository, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Partnership 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.
13
<PAGE>
(e) If the Partnership shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Partnership 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 Partnership 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
Partnership in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, etc., to Trustee and Partnership. 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 Partnership shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at the Corporate Trust Office; or
(2) the Partnership 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
Partnership 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 Partnership,
Attention: Chief Financial Officer (with a copy to the Partnership's
General Counsel), or
14
<PAGE>
(3) either the Trustee or the Partnership, by the other party,
shall be sufficient for every purpose hereunder if given by facsimile
transmission, receipt confirmed by telephone followed by an original copy
delivered by guaranteed overnight courier; if to the Trustee at facsimile
number (312) 904-2236; and if to the Partnership at facsimile number (847)
480-1893.
SECTION 106. Notice to Holders: Waiver. Where this Indenture provides
-------------------------
for notice of any event to Holders of Registered Securities by the Partnership
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, if any, and not earlier than
the earliest date, if any, 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 so mailed, to any
particular 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, if any,
and not earlier than the earliest date, if any, 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.
15
<PAGE>
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. Counterparts; Effect of Headings and Table of Contents.
------------------------------------------------------
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. 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 Partnership shall bind its successors and assigns, whether
so expressed or not.
SECTION 109. Severability 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 or 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.
SECTION 111. 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 112. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security or the last date on which a Holder has the
right to exchange a 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 principal (and premium or Make-Whole Amount, if any) or exchange of
such security need not be made at such Place of Payment on such date, but
(except as otherwise provided in the supplemental indenture with respect to such
Security) may be made on the next succeeding
16
<PAGE>
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, or on such last day for
exchange, 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
to the next Business Day.
SECTION 113. 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 hereof), shall be had against the Company or any other past, present or
future partner in the Partnership, (ii) any other Person which owns an interest,
directly or indirectly, in any partner of the Partnership or (iii) any past,
present or future stockholder, employee, officer or director, as such, of the
Company or of any successor, either directly or through the Partnership or the
Company or any successor, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders and as part of the consideration for the issue of the
Securities.
SECTION 114. Conflict with Trust Indenture Act. If any provision hereof
---------------------------------
limits, qualifies or conflicts with another provision hereof which is required
or deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, 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 substantially in the form of Exhibit A hereto or in such other
---------
form 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 Section 301, 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
17
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or with any rule or regulation of any stock exchange on which the Securities may
be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or mechanically reproduced on safety paper 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 therein referred to
in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
Dated: By:
----------------- -----------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in the form of one or more Global Securities, then,
notwithstanding clause (8) of Section 301 and the provisions of Section 302, any
such Global Security or Securities may provide that it or they shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide 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 any Global Security or other
notation in the books and records of the Trustee to reflect the amount, or any
increase or decrease in the amount, or changes in the rights of Holders thereof,
of Outstanding Securities represented thereby shall be made by the Trustee in
accordance with the Trustee's customary practice or otherwise in such manner or
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 Global 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
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Company with respect to endorsement or delivery or redelivery of a Global
Security 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 Global Security if such Security was never issued and
sold by the Partnership and the Partnership delivers to the Trustee the Global
Security 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 or Make-
Whole Amount, if any, and interest on any Global Security in permanent global
form shall be made to the registered Holder thereof.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Partnership, the Trustee and any agent of the
Partnership 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 Holder of such
permanent Global Security in registered form, or (ii) in the case of a permanent
Global Security in bearer form, Euroclear or CEDEL.
Any Global Security authenticated and delivered hereunder shall bear a
legend in substantially the following form:
"This Security is a Global Security within the meaning set forth in
the Indenture hereinafter referred to and is registered in the name of
a Depository or a nominee of a Depository. This Security is
exchangeable for Securities registered in the name of a person other
than the Depository or its nominee only in the limited circumstances
described in the Indenture, and may not be transferred except as a
whole by the Depository to a nominee of the Depository or by a nominee
of the Depository to the Depository or another nominee of the
Depository or by the Depository or its nominee to a successor
Depository or its nominee."
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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 in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(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 price (expressed as a percentage of the principal amount
thereof) at which such Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Securities will be payable;
(5) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at which such
Securities will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on which any
such interest will be payable, the record dates for such interest payment
dates, or the method by which such dates shall be determined, the persons
to whom such interest shall be payable, and the basis upon which interest
shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(7) The place or places where the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Securities will be
payable, where such Securities may be surrendered for registration of
transfer or exchange and where notices or demands to or upon the
Partnership in respect of such Securities and this Indenture may be served;
20
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(8) The period or periods, if any, within which, the price or
prices at which and the other terms and conditions upon which such
Securities may, pursuant to any optional or mandatory redemption
provisions, be redeemed, as a whole or in part, at the option of the
Partnership;
(9) The obligation, if any, of the Partnership to redeem, repay
or purchase such Securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the period or periods
within which, the price or prices at which and the other terms and
conditions upon which such Securities will be redeemed, repaid or
purchased, as a whole or in part, pursuant to such obligation;
(10) If other than Dollars, the currency or currencies in which
such Securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite currency
or currencies, the manner of determining the equivalent thereof in Dollars
for purposes of the definition of "Outstanding" in Section 101, and the
terms and conditions relating thereto;
(11) Whether the amount of payments of principal of (and premium
or Make-Whole Amount, if any, including any amount due upon redemption, if
any) or interest, if any, on such Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may, but need not be, based on the yield on or trading price of
other securities, including United States Treasury securities or on a
currency, currencies, currency unit or units, or composite currency or
currencies) and the manner in which such amounts shall be determined;
(12) Whether the principal of (and premium or Make-Whole Amount,
if any) or interest on the Securities of the series are to be payable, at
the election of the Partnership or a holder thereof, in a currency or
currencies, currency unit or units or composite currency or currencies
other than that in which such Securities are denominated or stated to be
payable, the period or periods within which, 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;
21
<PAGE>
(13) Provisions, if any, granting special rights to the holders
of Securities of the series upon the occurrence of such events as may be
specified;
(14) Any deletions from, modifications of or additions to the
Events of Default or covenants of the Partnership 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;
(15) Whether and under what circumstances the Partnership will
pay any additional amounts on such Securities in respect of any tax,
assessment or governmental charge and, if so, whether the Partnership will
have the option to redeem such Securities in lieu of making such payment;
(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 manner provided in the Indenture, and, if
Registered Securities of the series are to be issuable as a Global
Security, the identity of the depository 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 herein;
(19) The applicability, if any, of the defeasance and covenant
defeasance provisions of Article Fourteen hereof to the Securities of the
series;
22
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(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; and
(21) 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, as general partner of the Partnership, 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.
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
Securities of such series, other than Global Securities (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company, as general partner of the Partnership, by its President, any
Executive Vice President or Senior Vice President or its Chief Financial
Officer, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities 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 the Company, as general
partner of the Partnership, shall bind the Partnership, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of such Securities or coupons.
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<PAGE>
At any time and from time to time after the execution and delivery of this
Indenture, the Partnership may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Partnership 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 B-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 delivered in
connection with the 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 stating that
(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
24
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(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Partnership to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the
Partnership in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and legally
binding obligations of the Partnership, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency, fraudulent
transfer, 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, that 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
(including a Global Security) shall have been authenticated and delivered
hereunder but never issued and sold by the Partnership, and the Partnership
shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with
25
<PAGE>
Section 102 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Partnership, 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
Partnership 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 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 Global Securities (which shall be exchanged
as otherwise provided herein or as otherwise provided in or pursuant to a Board
Resolution), if temporary Securities of any series are issued, the Partnership
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 Partnership 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 Partnership 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, the
following provisions of this Section 304(b) shall govern the exchange of
temporary Securities 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 depository or common depository (the "Common
Depository"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
26
<PAGE>
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 Partnership shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary Global Security, executed by the Partnership. On or
after the Exchange Date, such temporary Global Security shall be surrendered by
the Common Depository to the Trustee, as the Partnership's agent for such
purpose, to be exchanged, in whole or from time to time in part, for definitive
Securities without charge, and the Trustee shall authenticate and deliver, in
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 Depository, 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 B-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.
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 B-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.
27
<PAGE>
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 B-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 B-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 Partnership pursuant to Section 103.
SECTION 305. Registration, Registration of Transfer and Exchange. The
---------------------------------------------------
Partnership shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Partnership in a Place of Payment a register
for each series of Securities (the registers maintained in such office or in any
such office or agency of the Partnership in a Place of Payment being herein
sometimes referred to collectively as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Partnership shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided.
In the event that the Trustee shall cease to be Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
28
<PAGE>
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 Partnership in a Place of Payment for that series, the
Partnership shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Registered
Securities 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 Partnership 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, then 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 Partnership 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 Partnership and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security 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
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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 Partnership 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 depository for any permanent Global
Security is The Depository Trust Company ("DTC"), then, unless the terms of such
Global Security expressly permit such Global Security to be exchanged in whole
or in part for definitive Securities, a Global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC,
or to a successor to DTC for such Global Security selected or approved by the
Partnership or to a nominee of such successor to DTC. If at any time DTC
notifies the Partnership that it is unwilling or unable to continue as
depository for the applicable Global Security or Securities or if at any time
DTC ceases to be a clearing agency registered under the Securities Exchange Act
of 1934 if so required by applicable law or regulation, the Partnership shall
appoint a successor depository with respect to such Global Security or
Securities. If (x) a successor depository for such Global Security or
Securities is not appointed by the Partnership within 90 days after the
Partnership 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 depository for such Global Security or
Securities or (z) the Partnership, 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 Partnership 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 Partnership 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 depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Partnership's agent for such purpose; provided, however, that no such exchanges
-------- -------
may occur during a period beginning at the opening of business 15 days before
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
-------- -------
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<PAGE>
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 Partnership, 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 Partnership
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Partnership and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Partnership 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 Partnership or the Trustee, as applicable, shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be
among those selected for redemption during a period beginning at the opening of
business 15 days before 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
--------
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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 Partnership, together with, in proper cases,
such security or indemnity as may be required by the Partnership or the Trustee
to save each of them or any agent of either of them harmless, the Partnership
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 Partnership 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 Partnership or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Partnership 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 Partnership in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of principal of (and premium or Make-
-------- -------
Whole Amount, if any), and any interest on, Bearer Securities shall, except as
otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Partnership
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.
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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
Partnership, 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 Partnership
maintained for such purpose pursuant to Section 1002; provided, however, that
-------- -------
each installment of interest on any Registered Security may at the Partnership's
option be paid by (i) mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Section 308, to the
address of such Person as it appears on the Security Register or (ii) transfer
to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
Global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent Global Security held for its
account by Cede & Co. or the Common Depository, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent Global Security to the accounts of 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.
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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
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Partnership, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Partnership 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
Partnership 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
Partnership 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 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 Partnership of such Special Record
Date and, in the name and at the expense of the Partnership, 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 Partnership, 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
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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 Partnership 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 Partnership 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 Partnership, the Trustee
and any agent of the Partnership 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 neither the Partnership, the Trustee nor any
agent of the Partnership or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such Person, or upon such Person's
order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for money payable upon any such Security.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Partnership, the Trustee and any agent of the Partnership
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Partnership, the Trustee nor any agent of the Partnership or the Trustee shall
be affected by notice to the contrary.
No Holder of any beneficial interest in any Global Security held on its
behalf by a depository shall have any rights under this Indenture with respect
to such Global Security and such depository shall be treated by the Partnership,
the Trustee, and any agent of the Partnership or the Trustee as the owner of
such Global Security for all purposes whatsoever.
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None of the Partnership, 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 Global
Security 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 Partnership, the Trustee, or any agent of the
Partnership or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depository, as a Holder, with
respect to such Global Security or impair, as between such depository and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such Global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered for
------------
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Partnership may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the
Partnership 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 Partnership has not
issued and sold, and all Securities so delivered shall be promptly canceled by
the Trustee. If the Partnership 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 Partnership,
unless the Trustee is otherwise directed by a Company Order.
SECTION 310. Computation of Interest. Except as otherwise specified as
-----------------------
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR - SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Partnership Request cease to be of further effect with respect to any
series of Securities specified in such Partnership Request (except as to any
surviving rights of registration of
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transfer or exchange of Securities of such series herein expressly provided
for), and the Trustee, upon receipt of a Company Order, and at the expense of
the Partnership, shall execute instruments in form and substance satisfactory to
the Trustee and the Partnership 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 Partnership and thereafter repaid to the Partnership 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 Partnership, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Partnership,
and the Partnership, 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 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;
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(2) the Partnership has paid or caused to be paid all other sums
payable hereunder by the Partnership; and
(3) the Partnership 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.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Partnership to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Partnership 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 Partnership
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium or Make-Whole Amount, if any),
and any interest for whose payment such money has been deposited with or
received by the Trustee, but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE FIVE - REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used herein
-----------------
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest on any Security of
such series when such interest becomes due and payable that continues for a
period of 30 days; or
(2) default in the payment of the principal of (or Make-Whole
Amount, if any, on) any Security of such series when due and payable; or
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(3) default in the deposit 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 Partnership in this Indenture with respect to any Security
of such 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
Partnership by the Trustee or to the Partnership 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 for money borrowed (except mortgage indebtedness) by the
Partnership or any of its Subsidiaries in an aggregate principal amount in
excess of $25,000,000 or under any indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed (except mortgage indebtedness) by the
Partnership or any of its Subsidiaries in an aggregate principal amount in
excess of $25,000,000, whether such indebtedness exists on the date of such
Indenture or shall thereafter be created, which default shall have resulted
in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable or such
obligations being accelerated, without 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 Partnership by the
Trustee or to the Partnership 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 Partnership 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 Partnership 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
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(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 Partnership or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Partnership 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, 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 amount (or, if Securities of
that Series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Partnership (and to the Trustee if given by the Holders), and
upon any such declaration such principal or specified portion thereof shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Partnership and
the Trustee, may rescind and annul such declaration of acceleration and its
consequences if:
(1) the Partnership has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in
which the
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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 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 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 Partnership covenants that if:
- -------
(1) default is made in the payment of any installment of interest
on any Security of any series and any related coupon when such interest
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 Partnership will, upon 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, 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 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.
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If the Partnership 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 Partnership 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 Partnership 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 Partnership or any other obligor upon the Securities or the property of the
Partnership 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
Partnership 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 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
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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.
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.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities, and it shall not be necessary to make any Holders of the
Securities parties to any such proceedings.
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, 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, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such Securities
and coupons for principal (and premium or Make-Whole Amount, if any) and
interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Partnership.
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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
(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, and Interest. 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 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
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determined adversely to the Trustee or to such Holder, then and in every such
case, the Partnership, 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,
(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.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Holders.
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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 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 Partnership
---------------------------------------
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 Partnership (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 an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted 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 of any series, 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).
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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 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 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 a
Responsible Officer 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 Partnership mentioned herein
shall be sufficiently evidenced by a Partnership 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 written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and
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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, unless requested
in writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities of any series; provided
--------
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses of every
such examination shall be paid by the Holders or, if paid by the Trustee,
shall be repaid by the Holders upon demand. 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 Partnership, relevant to the facts or
matters that are the subject of its inquiry, 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
(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.
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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 Partnership, 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 or coupons, 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
Partnership 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 Partnership,
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 Partnership with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Partnership.
SECTION 606. Compensation and Reimbursement. The Partnership agrees:
------------------------------
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the reasonable 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 and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of 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(7) or Section 501(8), 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 Partnership 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. Neither the Partnership nor
any Person directly or indirectly controlling, controlled by, or under common
control with the Partnership shall serve as Trustee.
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 Partnership. 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.
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(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Partnership.
(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 Partnership 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 Partnership 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 Partnership by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to 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 Partnership, 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 Partnership and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to the
Securities of such series and to that extent supersede the successor Trustee
appointed by the Partnership. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Partnership or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a Security
of such series for at least six months may, on behalf of 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.
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(f) The Partnership shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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 so appointed shall execute, acknowledge and deliver
to the Partnership and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Partnership 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 Partnership,
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 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
52
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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
Partnership 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 Partnership 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 609, 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 or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons 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
Partnership. 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
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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 Partnership 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 (or having a holding
company parent with a combined capital and surplus) of not less than $50,000,000
and subject to supervision or examination by Federal or state authorities. If
such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent (or its parent, as the case may be) shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. 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 Partnership. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Partnership. 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 Partnership 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 Partnership 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.
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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.
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
Dated: By:
--------------- ---------------------------------------
as Authenticating Agent
Dated: By:
--------------- ---------------------------------------
Authorized Signatory
SECTION 612. Certain Duties and Responsibilities of the Trustee.
--------------------------------------------------
(a) With respect to the Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series:
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture, but shall not be under any
duty to verify the contents or accuracy thereof.
(b) In case an Event of Default with respect to the Securities of any
series has occurred and is continuing, the Trustee shall, with respect to
Securities of such series, exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
55
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(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this
Section 612.
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND PARTNERSHIP
SECTION 701. Disclosure of Names and Addresses of Holders. Every Holder
--------------------------------------------
of Securities or coupons, by receiving and holding the same, agrees with the
Partnership and the Trustee that neither the Partnership 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).
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SECTION 702. Reports by Trustee. The Trustee shall transmit to Holders
------------------
such reports concerning the Trustee and its actions under this Indenture as may
be required by TIA Section 313 at the times and in the manner provided by the
TIA, which shall initially be not less than every twelve months commencing on
July 15, 1999. A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which any Securities are listed, with the Commission and with the
Partnership. The Partnership will notify the Trustee when any Securities are
listed on any stock exchange.
SECTION 703. Reports by Partnership. The Partnership will:
----------------------
(1) file with the Trustee, within 15 days after the Partnership
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 Partnership may be
required to file with the Commission pursuant to Section 13 or Section
15(d) of the Securities Exchange Act of 1934; or, if the Partnership is not
required to file information, documents or reports pursuant to either of
such Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in such
rules and regulations;
(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 Partnership 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 Partnership 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. Partnership to Furnish Trustee Names and Addresses of
-----------------------------------------------------
Holders. The Partnership will furnish or cause to be furnished to the Trustee:
(a) semiannually, 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, semiannually,
upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
57
<PAGE>
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Partnership 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 Partnership and Sales, Leases
-----------------------------------------------------------
and Conveyances Permitted Subject to Certain Conditions. The Partnership 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 Partnership shall be the continuing entity, or the
successor entity shall be a 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 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 Partnership by
supplemental indenture, complying with Article Nine hereof, satisfactory to the
Trustee, executed and delivered to the Trustee by such entity and (2)
immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Partnership or any Subsidiary as
a result thereof as having been incurred by the Partnership 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 Partnership, 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 Partnership, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Partnership and delivered to the Trustee; and, upon the order of such
successor entity, instead of the Partnership, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Partnership to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be
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<PAGE>
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.
ARTICLE NINE - SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
--------------------------------------------------
the consent of any Holders of Securities or coupons, the Partnership, 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
Partnership and the assumption by any such successor of the covenants of
the Partnership contained herein and in the Securities; or
(2) to add to the covenants of the Partnership 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
Partnership; 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
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<PAGE>
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
premium or Make-Whole Amount, if any, 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
(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.
60
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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 Partnership and the Trustee, the Partnership, 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 premium or Make-Whole Amount
payable upon the redemption thereof, 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 Make-Whole Amount 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 1009, 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, provided, however, that this clause shall not be
-------- -------
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section 902 and
Section 1009, or the deletion of this proviso, in accordance with the
requirements of Sections 609(b) and 901(11).
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It shall not be necessary for any Act of Holders under this Section 902 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of 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 Partnership shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Partnership, to any such supplemental indenture
may be prepared and executed by the Partnership and authenticated and delivered
by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN - COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount, if any;
-----------------------------------------------------------
and Interest. The Partnership covenants and agrees for the benefit of the
- ------------
Holders of each series of Securities that it will duly and punctually calculate
and pay the principal of (and premium or
62
<PAGE>
Make-Whole Amount, if any) and interest on 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 Bearer
Securities on or before Maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the
Partnership, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a series
-------------------------------
are issuable only as Registered Securities, the Partnership 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, where
Securities of that series may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Partnership 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 Partnership 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, 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 Partnership 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 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; provided, however, that if the Securities
-------- -------
of that series are listed on any stock exchange located outside the United
States and such stock exchange shall so require, the Partnership will maintain a
Paying Agent for the Securities of that series in any 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
Partnership in respect of the Securities of that series and this Indenture may
be served. The Partnership 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 Partnership 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 at
the offices specified in the Security and the Partnership hereby appoints the
same as its agent to receive such respective presentations, surrenders, notices
and demands, and the Partnership hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
63
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Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or Make-Whole Amount or interest
on Bearer Securities shall be made at any office or agency of the Partnership 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 or Make-Whole Amount and interest on any
Bearer Security shall be made at the Corporate Trust Office of the Trustee in
Boston, Massachusetts if (but only if) payment in Dollars of the full amount of
such principal, premium or Make-Whole Amount, or interest, as the case may be,
at all offices or agencies outside the United States maintained for the purpose
by the Partnership in accordance with this Indenture, is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Partnership 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 Partnership 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 Partnership 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 Partnership hereby designates as a Place of Payment
for each series of Securities the office or agency of the Corporate Trust Office
of the Trustee in Boston, Massachusetts, 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
Partnership will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If the
-------------------------------------------------
Partnership 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 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 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.
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Whenever the Partnership shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, before each due date of
the principal of (and premium or Make-Whole Amount, if any), or interest on 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 so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
Make-Whole Amount, if any, or interest and (unless such Paying Agent is the
Trustee) the Partnership will promptly notify the Trustee of its action or
failure so to act.
The Partnership will cause each Paying Agent for any series of Securities
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 written notice of any default by the
Partnership (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 on the Securities of that series; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all sums
so held in trust by such Paying Agent.
The Partnership 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 Partnership 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
Partnership or such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Partnership,
in trust for the payment of the principal of (and premium or Make-Whole Amount,
if any) or interest on any Security of
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any series and remaining unclaimed for two years after such principal (and
premium or Make-Whole Amount, if any) or interest has become due and payable
shall be paid to the Partnership upon Partnership Request or (if then held by
the Partnership) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Partnership for payment of such principal of (and premium or Make-Whole Amount,
if any) or interest on 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 Partnership as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
- -------- -------
to make any such repayment, may at the expense of the Partnership 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 Partnership.
SECTION 1004. Existence. Subject to Article Eight, the Partnership will
---------
do or cause to be done all things necessary to preserve and keep in full force
and effect its partnership existence, all material rights (by partnership
agreement and statute) and material franchises; provided, however, that the
-------- -------
Partnership shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Partnership.
SECTION 1005. Maintenance of Properties. The Partnership 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 Partnership 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 Partnership and its
-------- -------
Subsidiaries shall not be prevented from selling or otherwise disposing of their
properties for value in the ordinary course of business.
SECTION 1006. Insurance. The Partnership will cause each of its and its
---------
Subsidiaries' insurable properties to be insured against loss or damage in an
amount at least equal to their then full insurable value with insurers of
recognized responsibility.
SECTION 1007. Payment of Taxes and Other Claims. The Partnership 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
Partnership 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 Partnership or any Subsidiary; provided, however, that the Partnership 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.
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SECTION 1008. Statement as to Compliance. The Partnership will 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 of the Company as general partner of the
Partnership as to his or her knowledge of the Partnership'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 1008, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1009. Waiver of Certain Covenants. The Partnership may omit in
---------------------------
any particular instance to comply with any term, provision or condition set
forth in Sections 1004 to 1009, 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 Partnership 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
-------------------------------------
Partnership to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Partnership
of less than all of the Securities of any series, the Partnership will notify
the Trustee, at least 45 days prior to the giving of the notice of redemption in
Section 1104 (or such shorter period as is satisfactory to the Trustee), of such
Redemption Date and of the aggregate principal amount and series of Securities
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 Partnership 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
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Redemption Date by the Trustee, from the Outstanding Securities of the
applicable 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 in part (in 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 Partnership and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given
--------------------
in the manner provided in Section 106, not more than 60 days nor less than 30
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, but not including,
the Redemption Date payable as provided in Section 1106, 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,
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(5) that on the Redemption Date the Redemption Price and accrued
interest to, but not including, 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,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be surrendered
for payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons 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 Partnership, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on this Redemption Date pursuant to Section 305 or otherwise,
the last date, as determined by the Partnership, on which such exchanges
may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed at the election of the
Partnership shall be given by the Partnership or, at the Partnership's request,
by the Trustee in the name and at the expense of the Partnership.
SECTION 1105. Deposit of Redemption Price. Prior to any Redemption Date,
---------------------------
the Partnership shall deposit with the Trustee or with a Paying Agent (or, if
the Partnership is acting as its own Paying Agent, which it may not do in the
case of a sinking fund payment under Article Twelve, segregate and hold in trust
as provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest to but not including such
Redemption Date on, all the Securities or portions thereof which are to be
redeemed on that date.
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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 but not
including the Redemption Date), and from and after such date (unless the
Partnership 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 Partnership at
the Redemption Price, together with accrued interest, if any, to but not
including 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 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 Partnership 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.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium or Make-Whole Amount, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
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SECTION 1107. Securities Redeemed in Part. Any Registered Security which
---------------------------
is to be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Partnership or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Partnership and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in writing)
and the Partnership shall execute and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge a new Security or
Securities of the same series, 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. If a Global
Security is so surrendered, the Partnership shall execute and the Trustee shall
authenticate and deliver to the depository, without service charge, a new Global
Security in a denomination equal to and in exchange for the unredeemed portion
of the principal of the Global Security so surrendered.
ARTICLE TWELVE - SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article
------------------------
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. The
-----------------------------------------------------
Partnership may, in satisfaction of all or any part of any mandatory sinking
fund payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with all unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Partnership pursuant to
the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Partnership; provided that such Securities so delivered or applied as a credit
--------
have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund. Not less than
-----------------------------------------
60 days prior to each sinking fund payment date for Securities of any series,
the Partnership will deliver to the Trustee an Officers' Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Partnership shall thereupon be obligated to pay the
amount therein specified. Not less than 30 days before each such sinking fund
payment date the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Partnership in the manner provided in Section 1104. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
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 but not including the Repayment Date specified in or pursuant to the
terms of such Securities. The Partnership covenants that prior to the Repayment
Date it will deposit with the Trustee or with a Paying Agent (or, if the
Partnership 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 to but not including such Repayment Date on, all
the Securities or portions thereof, as the case may be, to be repaid on such
date.
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SECTION 1303. Exercise of Option. Securities of any series subject to
------------------
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Partnership shall from time to time notify the Holders of
such Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (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 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
Partnership.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series providing for repayment at the option of
- -------
the Holders thereof 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 portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Partnership on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Partnership 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 all coupons, if any, appertaining thereto maturing after the Repayment
Date, the
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principal amount of such Security so to be repaid shall be paid by the
Partnership, together with accrued interest, if any, to but not including the
Repayment Date; provided, however, that coupons whose Stated Maturity is on or
-------- -------
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
----------------
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Partnership 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 on the relevant 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 Partnership 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 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 upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon accrued to but not including 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 Partnership shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Partnership, 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.
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ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article: Partnership'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 Partnership 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 Partnership's exercise
------------------------
of the above option applicable to this Section with respect to any Securities of
or within a series, the Partnership 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 Partnership shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed 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 Partnership, 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 Partnership's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003, (C) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and (D) this Article. Subject to compliance with this Article
Fourteen, the Partnership may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Partnership's exercise of
-------------------
the above option applicable to this Section with respect to any Securities of or
within a series, the Partnership shall be released from its obligations under
Sections 1004 to 1009, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant contained herein or in any indenture
supplemental hereto, with respect to such Outstanding Securities and any
75
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coupons appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed 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 1009, 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 Partnership may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such 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 Partnership 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 their terms will provide, not later than 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 to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal of (and premium 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 and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities and any
coupons appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any coupons appertaining thereto.
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(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 Partnership 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 shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any
time during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Partnership
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Partnership 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 Partnership
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 Partnership 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 Partnership's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Partnership, 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.
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(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 Partnership 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
(including the Partnership acting as its own 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, 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 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 Partnership 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.
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<PAGE>
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Partnership from time to
time upon Partnership 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 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 20 nor more than 180 days
prior to the date fixed for the meeting.
(b) In case at any time the Partnership, pursuant to a Board
Resolution, or the Holders of at least 25% 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 20 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Partnership or the Holders of Securities of such
series in the amount above specified, as the case may be, may determine the time
and the place 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 Partnership and its counsel.
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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 the reconvening of any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting adjourned or further adjourned for lack
of a quorum, the persons entitled to vote 25% in aggregate principal amount of
the then Outstanding Securities shall constitute a quorum for the taking of any
action set forth in the notice of the original 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.
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 persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; provided, however, that, except as limited by the
-------- -------
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of 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 action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding 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
Partnership or by Holders of Securities as provided in Section 1502(b), in which
case the Partnership 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.
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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 votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Partnership 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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SIGNATURES AND SEALS
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
BRADLEY OPERATING LIMITED PARTNERSHIP
By: BRADLEY REAL ESTATE, INC.,
its general partner
By: /s/ Thomas P. D'Arcy
--------------------
Name: Thomas P. D'Arcy
Title: Chairman, President and Chief
Executive Officer
Attest:/s/ William B. King
-------------------
Name: William B. King
Title: Secretary
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By:/s/ Frank Sgarglino
------------------------
Name: Frank Sgarglino
Title: Vice President
Attest:/s/ H.H. Hall, Jr.
------------------
Name: H.H. Hall, Jr.
Title: Vice President
83
<PAGE>
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY
[Face of Security]
[If the Holder of this Security (as indicated below) is The Depository Trust
Company ("DTC") or a nominee of DTC, this Security is a Global Security and the
following two legends apply:
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), 55 WATER STREET, NEW YORK, NEW YORK TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT SO 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, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS SECURITY IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN CERTIFICATED FORM, THIS SECURITY 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.]
[If this Security is an Original Issue Discount Security, insert -- FOR PURPOSES
---------------------------------------------------------------
OF SECTION 1273 and 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ___% OF ITS PRINCIPAL AMOUNT, THE
ISSUE DATE IS _____________, 19__ [AND] THE YIELD TO MATURITY IS _____%. [THE
METHOD USED TO DETERMINE THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE
SHORT ACCRUAL PERIOD OF __________, 19__ TO _________, 19__, IS ___% OF THE
PRINCIPAL AMOUNT OF THIS SECURITY.]
BRADLEY OPERATING LIMITED PARTNERSHIP
[Designation of Series]
No. _______ $_______
BRADLEY OPERATING LIMITED PARTNERSHIP, a Delaware limited partnership (herein
referred to as the "Partnership," which term includes any successor entity under
the Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to __________________________ or registered assigns the
principal sum of _______ Dollars on _____________________ (the "Stated Maturity
Date") [or insert date fixed for earlier redemption (the "Redemption Date," and
----------------------------------------
together with the Stated Maturity Date with respect to principal repayable on
such date, the "Maturity Date.")]
A-1
<PAGE>
[If the Security is to bear interest prior to Maturity, insert -- and to pay
-------------------------------------------------------------
interest thereon from ______________ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
__________ and _________ in each year (each, an "Interest Payment Date"),
commencing __________, at the rate of __% per annum, until the principal hereof
is paid or duly provided for. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Holder in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the ________ or ______ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date [at the office or agency of the Partnership maintained for such purpose;
provided, however, that such interest may be paid, at the Partnership's option,
- -------- -------
by mailing a check to such Holder at its registered address or by transfer of
funds to an account maintained by such Holder within the United States]. Any
such 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 be paid to the
Holder in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.]
[If the Security is not to bear interest prior to Maturity, insert -- The
-----------------------------------------------------------------
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at the
[Stated] Maturity Date and in such case the overdue principal of this Security
shall bear interest at the rate of ___% per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of ___% per annum (to the extent
that the payment of such interest shall be legally enforceable), which shall
accrue from the date of such demand for payment to the date payment of such
interest has been made or duly provided for, and such interest shall also be
payable on demand.]
The principal of this Security payable on the Stated Maturity Date [or the
principal of, premium or Make-Whole Amount, if any, and, if the Redemption Date
is not an Interest Payment Date, interest on this Security payable on the
Redemption Date] will be paid against presentation of this Security at the
office or agency of the Partnership maintained for that purpose in
___________________, in such coin or currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
A-2
<PAGE>
Interest payable on this Security on any Interest Payment Date and on the
[Stated] Maturity Date [or Redemption Date, as the case may be,] will include
interest accrued from and including the next preceding Interest Payment Date in
respect of which interest has been paid or duly provided for (or from and
including ____________, if no interest has been paid on this Security) to but
excluding such Interest Payment Date or the [Stated] Maturity Date [or
Redemption Date, as the case may be.] If any Interest Payment Date or the
[Stated] Maturity Date or [Redemption Date] falls on a day that is not a
Business Day, as defined below, principal, premium or Make-Whole Amount, if any,
and/or interest payable with respect to such Interest Payment Date or [Stated]
Maturity Date [or Redemption Date, as the case may be,] will be paid 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 shall accrue on the amount so payable
for the period from and after such Interest Payment Date or [Stated] Maturity
Date [or Redemption Date, as the case may be.] "Business Day" means any day,
other than a Saturday or Sunday, on which banks in __________________ are not
required or authorized by law or executive order to close.
[If this Security is a Global Security, insert -- All payments of principal,
---------------------------------------------
premium or Make-Whole Amount, if any, and interest in respect of this Security
will be made by the Partnership in immediately available funds.]
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the Certificate of Authentication hereon has been executed by the Trustee
by manual signature of one of its authorized signatories, this Security shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under its facsimile corporate seal.
Dated: BRADLEY OPERATING LIMITED PARTNERSHIP
--------------
By: Bradley Real Estate, Inc.
Attest: Its: General Partner
By:
- --------------------- -----------------------------
Secretary
A-3
<PAGE>
[Reverse of Security]
BRADLEY OPERATING LIMITED PARTNERSHIP
This Security is one of a duly authorized issue of securities of the Partnership
(herein called the "Securities"), issued and to be issued in one or more series
under an Indenture, dated as of September 28, 1998 (herein called the
"Indenture") between the Partnership and U.S. Bank Trust National Association,
as Trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture with respect to the series of which this Security is
a part), to which Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Partnership, the Trustee and the Holders
of the Securities, and of the terms upon which the Securities are, and are to
be, authenticated and delivered. This Security is one of the duly authorized
series of Securities designated on the face hereof (collectively, the
"Securities"), [if applicable, insert -- and the aggregate principal amount of
---------------------
the Securities to be issued under such series is limited to $______ (except for
Securities authenticated and delivered upon transfer of, or in exchange for, or
in lieu of other Securities).] All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the
Indenture.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If applicable, insert -- The Securities may not be redeemed prior to the Stated
---------------------
Maturity Date.]
[If applicable, insert -- The Securities are subject to redemption [ (l) (If
--------------------- ---
applicable, insert -- on _________ in any year commencing with the year ____ and
- ------------------
ending with the year ____ through operation of the sinking fund for this series
at a Redemption Price equal to 100% of the principal amount, and (2) ] [If
--
applicable, insert -- at any time [on or after ___________], as a whole or in
- ------------------
part, at the election of the Partnership, at the following Redemption Prices
(expressed as percentages of the principal amount):
If redeemed on or before _______, __% and if redeemed during the 12-month
period beginning _______ of the years indicated at the Redemption Prices
indicated below.
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
and thereafter at a Redemption Price equal to __% of the principal amount,
together in the case of any such redemption [If applicable, insert -- (whether
---------------------
through operation of the sinking fund
A-4
<PAGE>
or otherwise)] with accrued interest to the Redemption Date; provided, however,
-----------------
that installments of interest on this Security whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities are subject to redemption (1) on
---------------------
_______ in any year commencing with the year ____ and ending with the year ____
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after _______], as a whole or in part, at the election of the Partnership, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning ________ of the
years indicated,
Redemption Price for Redemption Price for
Redemption Through Redemption Otherwise
Operation of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
provided, however, that installments of interest on this Security whose Stated
- -------- -------
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Partnership
---------------------
may not, prior to _______, redeem any Securities as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Partnership (calculated in accordance with generally
accepted financial practice) of less than __% per annum.]
[If applicable, insert -- The sinking fund for the Securities provides for
---------------------
the redemption on _______ in each year, beginning with the year ____ and ending
with the year ____, of [not less than] $_______] [("mandatory sinking fund") and
not more than $_______] aggregate principal amount of the Securities. [The
Securities acquired or redeemed by the Partnership otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made in the [describe order]
--------------
order in which they become due.]]
A-5
<PAGE>
Notice of redemption will be given by mail to Holders of Securities, not
less than 30 nor more than 60 days prior to the Redemption Date, all as provided
in the Indenture.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the Holders of the Securities under the Indenture
at any time by the Partnership and the Trustee with the consent of the Holders
of not less than a majority of the aggregate principal amount of all Securities
issued under the Indenture at the time Outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of not less than a
majority of the aggregate principal amount of the Outstanding Securities, on
behalf of the Holders of all such Securities, to waive compliance by the
Partnership with certain provisions of the Indenture. Furthermore, provisions in
the Indenture permit the Holders of not less than a majority of the aggregate
principal amount, in certain instances, of the Outstanding Securities of any
series to waive, on behalf of all of the Holders of Securities of such series,
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and other
Securities issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this 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 Partnership, which
is absolute and unconditional, to pay the principal of (and premium or Make-
Whole Amount, if any) and interest on this Security at the times, places and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, the transfer of this Security is registrable in the
Security Register of the Partnership upon surrender of this Security for
registration of transfer at the office or agency of the Partnership in any
place where the principal of (and premium or Make-Whole Amount, if any) and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Partnership and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
[and herein] set forth, this Security is exchangeable for a like aggregate
principal amount of Securities of different authorized denominations but
otherwise having the same terms and conditions, as requested by the Holder
hereof surrendering the same.
A-6
<PAGE>
The Securities of this series are issuable only in registered form [without
coupons] in denominations of $_______ and any integral multiple thereof.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith,
Prior to due presentment of this Security for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Partnership, the Trustee nor any such agent shall be affected by notice to the
contrary.
Notwithstanding anything contained herein 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 hereby or thereby,
or for any claim based therein or otherwise in respect hereof, shall be had for
the payment of the principal of or premium or Make-Whole Amount, if any, or the
interest on this Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against (i) Bradley Real Estate, Inc. (the "Company") or
any other past, present or future partner in the Partnership, (ii) any other
Person which owns an interest, directly or indirectly, in any partner of the
Partnership or (iii) any past, present or future stockholder, employee, officer
or director, as such, of the Company or of any successor, either directly or
through the Partnership or the Company or any successor, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance hereof and
as part of the consideration for the issue hereof, expressly waived and
released.
The Indenture and the Securities shall be governed by and construed in
accordance with the laws of [the State of New York] applicable to agreements
made and to be performed entirely in such State.
A-7
<PAGE>
EXHIBIT B
FORMS OF CERTIFICATION
EXHIBIT B-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
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 2.165-
12(c)(1)(v) are herein referred to as "financial institutions") purchasing for
their own account or for resale, or (b) United States person(s) who acquired the
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 Bradley Operating 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 its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
B-1
<PAGE>
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 in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________, ____
[To be dated no earlier than the 15th day prior to (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 Signature)
Name:
Title:
B-2
<PAGE>
EXHIBIT B-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 partnerships, domestic corporations
or any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the 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 Bradley Operating 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
B-3
<PAGE>
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 in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: _______ ____
[To be dated no earlier than the 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:
--------------------------------------
B-4
<PAGE>
EXHIBIT 4.2
- --------------------------------------------------------------------------------
BRADLEY OPERATING LIMITED PARTNERSHIP
Issuer
------
to
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
-------
_________________________
Supplemental Indenture No. 1
Dated as of September 28, 1998
_________________________
$150,000,000
of
Medium-Term Notes Due Nine Months or More
from Date of Issue
- --------------------------------------------------------------------------------
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of September 28, 1998 (the
"Supplemental Indenture"), between BRADLEY OPERATING LIMITED PARTNERSHIP, a
limited partnership organized under the laws of the State of Delaware (herein
called the "Partnership"), and U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States of America, as
Trustee (herein called the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has heretofore delivered to the Trustee an Indenture
dated as of September 28, 1998 (the "Senior Indenture"), a form of which has
been filed with the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended, as an exhibit to the Partnership's
Registration Statement on Form S-3 (Registration No. 333-51675), providing for
the issuance from time to time of Senior Debt Securities of the Partnership (the
"Securities"). The Partnership intends by this Supplemental Indenture to (i)
create a series of debt securities to be issued from time to time, in an
aggregate initial principal amount not to exceed $150,000,000, entitled "Medium-
Term Notes Due Nine Months or More from Date of Issue" (the "Notes") and (ii)
establish the form and the terms and conditions of such Notes.
Section 301 of the Senior Indenture provides for various matters with
respect to any series of Securities issued under the Senior Indenture to be
established in an indenture supplemental to the Senior Indenture.
Section 901(7) of the Senior Indenture provides for the Partnership
and the Trustee to enter into an indenture supplemental to the Senior Indenture
to establish the form or terms of Securities of any series as provided by
Sections 201 and 301 of the Senior Indenture.
The Board of Directors of Bradley Real Estate, Inc., the general
partner of the Partnership, has duly adopted resolutions authorizing the
Partnership to execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of
the series of Securities provided for herein by the Holders thereof, it is
mutually
<PAGE>
covenanted and agreed, for the equal and proportionate benefit of all Holders of
the Notes or of any series thereof, as follows:
ARTICLE ONE
RELATION TO SENIOR INDENTURE; DEFINITIONS
-----------------------------------------
SECTION 1.1. Relation to Senior Indenture.
----------------------------
This Supplemental Indenture constitutes an integral part of the Senior
Indenture.
SECTION 1.2. Definitions.
-----------
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Senior Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing at
the time such Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means the aggregate interest
expense for such period in respect of, and the amortization during such period
of any original issue discount of, Indebtedness of the Partnership and its
Subsidiaries and the amount of dividends which are payable during such period in
respect of any Disqualified Stock.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participations or other
ownership interests (however designated) of such Person and any rights (other
than debt securities convertible into or exchangeable for corporate stock),
warrants or options to purchase any thereof.
2
<PAGE>
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Partnership and its Subsidiaries plus amounts
which have been deducted, and minus amounts which have been added, for the
following (without duplication): (i) interest on Indebtedness of the
Partnership and its Subsidiaries, (ii) provision for taxes of the Partnership
and its Subsidiaries based on income, (iii) amortization of debt discount, (iv)
provisions for gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a change in
accounting principles in determining Earnings from Operations for such period
and (vi) amortization of deferred charges.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for common
stock), (ii) is convertible into or exchangeable or exercisable for Indebtedness
or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable
solely in exchange for Capital Stock which is not Disqualified Stock or the
redemption price of which may, at the option of such Person, be paid in Capital
Stock which is not Disqualified Stock), in each case on or prior to the Stated
Maturity of the Notes.
"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items, and property
valuation losses, net as reflected in the financial statements of the
Partnership and its Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security
interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Fixed Rate Notes" means the Partnership's Fixed Rate Notes due nine
months or more from the date of issue, a form of which is attached hereto as
Exhibit B.
"Floating Rate Notes" means the Partnership's Floating Rate Notes due
nine months or more from the date of issue, a form of which is attached hereto
as Exhibit A.
3
<PAGE>
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided that solely for purposes of 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.
"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.
"Indebtedness" of the Partnership or any Subsidiary means any
indebtedness of the Partnership or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments whether or not such indebtedness is secured by any
Encumbrance existing on property owned by the Partnership or any Subsidiary,
(ii) indebtedness for borrowed money of a Person other than the Partnership or a
Subsidiary which is secured by any Encumbrance existing on property owned by the
Partnership or any Subsidiary, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value of the property subject to
such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any letters of credit actually issued or amounts representing
the balance deferred and unpaid of the purchase price of any property or
services, except any such balance that constitutes an accrued expense or trade
payable, or all conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations of the
Partnership or any Subsidiary with respect to redemption, repayment or other
repurchase of any Disqualified Stock, (v) any lease of property by the
Partnership or any Subsidiary as lessee which is reflected on the Partnership's
consolidated balance sheet as a capitalized lease in accordance with GAAP, or
(vi) interest rate swaps, caps or similar agreements and foreign exchange
contracts, currency swaps or similar agreements, to the extent, in the case of
items of indebtedness under (i) through (iii) above, that any such items (other
than letters of credit) would appear as a liability on the Partnership's
consolidated balance sheet in accordance with GAAP, and also includes, to the
extent not otherwise included, any obligations by the Partnership 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 Partnership or any Subsidiary)
(it being understood that Indebtedness shall be deemed to be incurred by the
Partnership or any Subsidiary whenever the Partnership or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).
"Notes" has the meaning specified in Section 2.1 hereof.
4
<PAGE>
"Pricing Supplement" means a pricing supplement to the Prospectus,
dated May 14, 1998, as supplemented by the Prospectus Supplement dated September
28, 1998, setting forth the terms of the applicable Notes.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (i) the voting power of the voting equity
securi ties or (ii) the outstanding equity interests of which are owned,
directly or indirectly, by such Person. For the purposes of this definition,
"voting equity securities" means equity securities having voting power for the
election of directors, whether at all times or only so long as no senior class
of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Partnership and its
Subsidiaries determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Partnership and its Subsidiaries not subject to an
Encumbrance for borrowed money, determined in accordance with GAAP (but
excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost
(original cost plus capital improvements) of real estate assets of the
Partnership and its Subsidiaries on such date, before depreciation and
amortization, determined on a consolidated basis in accordance with GAAP.
"Unsecured Indebtedness" means Indebtedness which is not secured by
any Encumbrance upon any of the properties of the Partnership or any Subsidiary.
5
<PAGE>
ARTICLE TWO
THE SERIES OF NOTES
-------------------
SECTION 2.1 Title of the Securities.
-----------------------
There shall be a series of Securities designated the Medium-Term Notes
Due Nine Months or More from Date of Issue (the "Notes").
SECTION 2.2 Limitation on Aggregate Principal Amount.
----------------------------------------
The aggregate principal amount of the Notes shall be limited to
$150,000,000, and, except as provided in this Section and in Section 306 of the
Indenture, the Partnership shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount;
provided however, as authorized by Section 301 of the Indenture, the Notes
series may be reopened, without the consent of the Holders, for the issuance of
such additional Notes as may be authorized by the Partnership.
Nothing contained in this Section 2.2 or elsewhere in this
Supplemental Indenture, or in the Notes, is intended to or shall limit execution
by the Partnership or authentication or delivery by the Trustee of Notes under
the circumstances contemplated by Sections 303, 304, 305, 306, 906, 1107 and
1305 of the Indenture.
SECTION 2.3 Terms and Conditions of the Notes.
---------------------------------
The Notes shall be governed by all the terms and conditions of the
Indenture, including, without limitation, the terms and conditions set forth in
the forms of Note referred to in Section 2.9 below, as the same may be
supplemented or, to the extent allowed by the Indenture, modified by the
additional or different terms and conditions established from time to time with
respect to the Notes either in board resolutions of Bradley Real Estate, Inc.
(the "General Partner"), as sole general partner of the Partnership or by action
of authorized officers of the General Partner and, in either such case, such
additional or different terms and conditions shall be set forth in the Notes and
the related Pricing Supplement. All such terms and conditions set forth in such
Notes and in such Pricing Supplement are incorporated by reference into this
Supplemental Indenture.
6
<PAGE>
SECTION 2.4 Limitations on Incurrence of Indebtedness.
-----------------------------------------
(a) The Partnership will not, and will not permit any Subsidiary to,
incur any Indebtedness if, immediately after giving effect to the incurrence of
such additional Indebtedness and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Indebtedness of the Partnership
and its Subsidiaries on a consolidated basis determined in accordance with GAAP
is greater than 60% of the sum of (without duplication) (i) the Total Assets of
the Partnership and its Subsidiaries as of the end of the calendar quarter
covered in the Partnership's Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the Commission (or, if
such filing is not permitted under the Exchange Act, with the Trustee) prior to
the incurrence of such additional Indebtedness and (ii) the purchase price of
any real estate assets or mortgages receivable acquired, and the amount of any
securities offering proceeds received (to the extent such proceeds were not used
to acquire real estate assets or mortgages receivable or used to reduce
Indebtedness), by the Partnership or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(b) In addition to the limitation set forth in subsection (a) of this
Section 2.4, the Partnership will not, and will not permit any Subsidiary to,
incur any Indebtedness 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 Indebtedness is
to be incurred shall have been less than 1.5:1, on a pro forma basis after
giving effect thereto and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Indebtedness and any other
Indebtedness incurred by the Partnership and its Subsidiaries since the first
day of such four-quarter period and the application of the proceeds therefrom,
including to refinance other Indebtedness, had occurred at the beginning of such
period; (ii) the repayment or retirement of any other Indebtedness by the
Partnership and its Subsidiaries since the first day of such four-quarter period
had been repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Indebtedness under any revolving credit
facility shall be computed based upon the average daily balance of such
Indebtedness during such period); (iii) in the case of Acquired Indebtedness or
Indebtedness incurred in connection with any acquisition since the first day of
such four-quarter period, the related acquisition had occurred as of the first
day of such period with the appropriate adjustments with respect to such
acquisition being included in such pro forma calculation; and (iv) in the case
of any acquisition or disposition by the Partnership or its Subsidiaries of any
asset or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Indebtedness had occurred
as of the first day of such period with the
7
<PAGE>
appropriate adjustments with respect to such acquisition or disposition being
included in such pro forma calculation.
(c) In addition to the limitations set forth in subsections (a) and
(b) of this Section 2.4, the Partnership will not, and will not permit any
Subsidiary to, incur any Indebtedness secured by any Encumbrance upon any of the
property of the Partnership or any Subsidiary if, immediately after giving
effect to the incurrence of such additional Indebtedness and the application of
the proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of the Partnership and its Subsidiaries on a consolidated basis
which is secured by any Encumbrance on property of the Partnership or any
Subsidiary is greater than 40% of the sum of (without duplication) (i) the Total
Assets of the Partnership and its Subsidiaries as of the end of the calendar
quarter covered in the Partnership's Annual Report on Form 10-K or Quarterly
Report on Form 10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with the Trustee)
prior to the incurrence of such additional Indebtedness and (ii) the purchase
price of any real estate assets or mortgages receivable acquired, and the amount
of any securities offering proceeds received (to the extent that such proceeds
were not used to acquire real estate assets or mortgages receivable or used to
reduce Indebtedness), by the Partnership or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Indebtedness.
(d) The Partnership and its Subsidiaries may not at any time own Total
Unencumbered Assets equal to less than 150% of the aggregate outstanding
principal amount of the Unsecured Indebtedness of the Partnership and its
Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Indebtedness shall be deemed to
be "incurred" by the Partnership or a Subsidiary whenever the Partnership or
such Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
SECTION 2.5 Defeasance.
----------
The provisions of Sections 1402 and 1403 of the Senior Indenture,
together with the other provisions of Article Fourteen of the Senior Indenture,
shall be applicable to the Notes. The provisions of Section 1403 of the Senior
Indenture shall apply to the covenants set forth in Sections 2.4 and 2.10 of
this Supplemental Indenture and to those covenants specified in Section 1403 of
the Senior Indenture.
8
<PAGE>
SECTION 2.6 Events of Default.
-----------------
The provisions of clause (5) of Section 501 of the Senior Indenture as
applicable with respect to the Notes shall be deemed to be amended and restated
in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Partnership (or by any
Subsidiary, the repayment of which the Partnership has guaranteed or for which
the Partnership is directly responsible or liable as obligor or guarantor),
having an aggregate principal amount outstanding of at least $10,000,000,
whether such indebtedness now exists or shall hereafter be created, which
default shall have resulted in such indebtedness 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 written notice, by registered or certified mail, to the
Partnership by the Trustee or to the Partnership 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 Partnership 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
The provisions of Section 501 of the Senior Indenture as applicable
with respect to the Notes shall be further deemed to be amended by renumbering
existing clause (8) to be clause (9) and by adding the following new clause (8):
(8) the entry by a court of competent jurisdiction of one or more
judgments, orders or decrees against the Partnership or any of its Subsidiaries
in an aggregate amount (excluding amounts covered by insurance) in excess of
$10,000,000 and such judgements, orders or decrees remain undischarged, unstayed
and unsatisfied in an aggregate amount (excluding amounts covered by insurance)
in excess of $10,000,000 for a period of 30 consecutive days; or
SECTION 2.7 Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
The provisions of the first paragraph of Section 502 of the Senior
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or
9
<PAGE>
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of, all the Securities of
that series to be due and payable immediately, by a notice in writing to the
Partnership (and to the Trustee if given by the Holders), plus accrued interest
to the date the Securities of that series are paid, and upon any such
declaration such principal or specified portion thereof shall become immediately
due and payable. With respect to the Securities of any series, if an Event of
Default set forth in Section 501(6) of the Senior Indenture occurs and is
continuing, then in every such case all the Securities of that series shall
become immediately due and payable, without notice to the Partnership, at the
principal amount thereof (or, if any Securities are Original Issue Discount
Securi ties or Indexed Securities, such portion of the principal as may be
specified in the terms thereof) plus accrued interest to the date the Securities
of that series are paid.
SECTION 2.8 Registered Securities.
---------------------
Each Note shall be issuable and transferable in fully registered book-
entry form or certificated form as specified in the applicable Pricing
Supplement.
SECTION 2.9 Form of Notes.
-------------
The Floating Rate Notes shall be substantially in the form attached as
Exhibit A hereto. The Fixed Rate Notes shall be substantially in the form
attached as Exhibit B hereto.
SECTION 2.10 Provision of Financial Information.
-----------------------------------
Whether or not the Partnership is subject to Section 13 or 15(d) of
the Exchange Act, the Partnership will, to the extent permitted under the
Exchange Act, file with the Commission the annual reports, quarterly reports and
other documents which the Partnership would have been required to file with the
Commission pursuant to such Section 13 or 15(d) if the Partnership were so
subject, such documents to be filed with the Commission on or prior to the
respective dates (the "Required Filing Dates") by which the Partnership would
have been required so to file such documents if the Partnership were so subject.
The Partnership will also in any event (x) within 15 days of each
Required Filing Date (i) if the Partnership is not then subject to Section 13 or
15(d) of the Exchange Act, transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, copies
of the annual reports and quarterly reports which the Partnership would have
been required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act if the Partnership were subject to such Sections, and (ii) file
with the Trustee copies
10
<PAGE>
of annual reports, quarterly reports and other documents which the Partnership
would have been required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act if the Partnership were subject to such Sections and
(y) if filing such documents by the Partnership 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 2.11 Waiver of Certain Covenants.
----------------------------
Notwithstanding the provisions of Section 1009 of the Senior
Indenture, the Partnership may omit in any particular instance to comply with
any term, provision or condition set forth in Sections 1004 to 1008, inclusive,
of the Senior Indenture, with Sections 2.4 and 2.10 of this Supplemental
Indenture and with any other term, provision or condition with respect to the
Notes or either series thereof (except any such term, provision or condition
which could not be amended without the consent of all Holders of the Notes or
such series thereof, as applicable), if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Notes or such series thereof, as applicable, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition. Except to the extent so expressly waived, and until
such waiver shall become effective, the obligations of the Partnership and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
11
<PAGE>
ARTICLE THREE
MISCELLANEOUS PROVISIONS
------------------------
SECTION 3.1. Ratification of Senior Indenture.
--------------------------------
Except as expressly modified or amended hereby, the Senior Indenture
continues in full force and effect and is in all respects confirmed and
preserved.
SECTION 3.2. Governing Law.
-------------
This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York. This Supple
mental Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts.
------------
This Supplemental 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 instrument.
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
BRADLEY OPERATING LIMITED
PARTNERSHIP
By: BRADLEY REAL ESTATE, INC.,
its general partner
By: /s/ Thomas P. D'Arcy
--------------------
Thomas P. D'Arcy
Chairman of the Board,
President and Chief Executive
Officer
Attest: /s/ William B. King
-------------------
William B. King
Secretary
U.S. BANK TRUST NATIONAL
ASSOCIATION, as Trustee
By: /s/ Frank Sgarglino
--------------------
Authorized Signatory
Vice President
Attest: /s/ H.H. Hall, Jr.
------------------
Name: H.H. Hall, Jr.
Title: Vice President
<PAGE>
EXHIBIT A
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF[CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN./1/
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY./2/
REGISTERED [PRINCIPAL AMOUNT]
No. FLR-
CUSIP No:*
BRADLEY OPERATING LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
[ ]- LIBOR Telerate
____________________________
/1/ This paragraph applies to global Notes only.
/2/ This paragraph applies to global Notes only.
<PAGE>
Page:
INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INTEREST PAYMENT
DATE(S):
SPREAD (PLUS OR SPREAD MULTIPLIER: INITIAL INTEREST RESET
MINUS): DATE:
MINIMUM INTEREST RATE: % MAXIMUM INTEREST INTEREST RESET
RATE: % DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION:
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S):
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to
[ ] Original Issue Discount Note Applicable Interest
Issue Price: % Rate Basis:
SPECIFIED CURRENCY: AUTHORIZED DENOMINATION:
[ ] United States dollars [ ] $1,000 and integral multiples
thereof
[ ] Other: [ ] Other:
EXCHANGE RATE:
U.S. $1.00 = ______
EXCHANGE RATE AGENT:
AMORTIZING SECURITY:
[ ] Yes
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<PAGE>
[ ] No
AMORTIZATION FORMULA:
AMORTIZATION PAYMENT DATE(S):
DEFAULT RATE: %
ADDENDUM ATTACHED:
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
BRADLEY OPERATING LIMITED PARTNERSHIP, a limited partnership duly organized
and existing under the laws of Delaware (hereinafter referred to as the
"Partnership", which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________________________________, or registered assigns, the principal sum of
_________________________, on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined below) (each such Stated
Maturity Date, Redemption Date or Repayment Date being hereinafter referred to
as the "Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at a rate per annum equal to the initial Interest Rate
specified above until the Initial Interest Reset Date specified above and
thereafter at a rate determined in accordance with the provisions specified
above and on the reverse hereof or in an Addendum hereto with respect to one or
more Interest Rate Bases specified above until the principal hereof is paid or
duly made available for payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Default Rate per annum specified
above on any overdue principal, premium and/or interest, including any overdue
sinking fund or redemption payment. The Partnership will pay interest in arrears
on each Interest Payment Date, if any, specified above (each, an "Interest
Payment Date"), commencing with the first Interest Payment Date next succeeding
the Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date next succeeding the Original
Issue Date to the holder of this Note on the Record Date with respect to such
second Interest Payment Date.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and
A-3
<PAGE>
including, the Original Issue Date if no interest has been paid or duly provided
for) to, but excluding, the applicable Interest Payment Date or the Maturity
Date, as the case may be (each, an "Interest Period"). The interest so payable,
and punctually paid or duly provided for, on any Interest Payment Date will,
subject to certain exceptions described herein, be paid to the person in whose
name this Note (or one or more predecessor Notes) is registered at the close of
business on the fifteenth calendar day (whether or not a Business Day, as
defined on the reverse hereof) immediately preceding such Interest Payment Date
(the "Record Date"); provided, however, that interest payable on the Maturity
Date will be payable to the person to whom the principal hereof and premium, if
any, hereon shall be payable. Any such interest not so punctually paid or duly
provided for ("Defaulted Interest") will forthwith cease to be payable to the
holder on any Record Date, and shall be paid to the person in whose name this
Note is registered at the close of business on a special record date (the
"Special Record Date") for the payment of such Defaulted Interest to be fixed by
the Trustee hereinafter referred to, notice whereof shall be given to the holder
of this Note by the Trustee not more than 15 days and not less than 10 days
prior to such Special Record Date or may be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which this Note may be listed, and upon such notice as may be required by such
exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date, or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at the
office or agency maintained by the Partnership for that purpose in the Borough
of Manhattan, The City of New York; provided, however, that if the Specified
Currency specified above is other than United States dollars and such payment is
to be made in the Specified Currency in accordance with the provisions set forth
below, such payment may be made by wire transfer of immediately available funds
to an account with a bank designated by the holder hereof at least 15 calendar
days prior to the Maturity Date, provided that such bank has appropriate
facilities therefor and that this Note (and, if applicable, a duly completed
repayment election form) is presented and surrendered at the aforementioned
office or agency maintained by the Partnership in time for the Trustee to make
such payment in such funds in accordance with its normal procedures. Payment of
interest due on any Interest Payment Date other than the Maturity Date will be
made at the aforementioned office of agency maintained by the Partnership or, at
the option of the Partnership, by check mailed to the address of the person
entitled thereto as such address shall appear in the Security Register
maintained by the Trustee; provided, however, that a holder of U.S. $10,000,000
(or, if the Specified Currency is other than United States dollars, the
equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on any Interest Payment Date other
than the Maturity Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar
A-4
<PAGE>
days prior to such Interest Payment Date. Any such wire transfer instructions
received by the Trustee shall remain in effect until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would otherwise
be a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York or Chicago; provided, however, that if the Specified Currency
is other than United States dollars, such day is also not a day on which banking
institutions are authorized or required by law, regulation or executive order to
close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, if the Specified Currency is European
Currency Units ("ECU"), such day is not a day that appears as an ECU non-
settlement day on the display designated as "ISDE" on the Reuter Monitor Money
Rates Service (or a day so designated by the ECU Banking Association), or, if
ECU non-settlement days do not appear on that page (and are not so designated),
is not a day on which payments in ECU cannot be settled in the international
interbank market); provided, further, that if LIBOR is an applicable Interest
Rate Basis, such day is also a London Business Day (as defined below). "London
Business Day" means (i) if the Index Currency (as defined below) is other than
ECU, any day on which dealings in such Index Currency are transacted in the
London interbank market or (ii) if the Index Currency is ECU, any day that does
not appear as an ECU non-settlement day on the display designated as "ISDE" on
the Reuter Monitor Money Rates Service (or a day so designated by the ECU
Banking Association) or, if ECU non-settlement days do not appear on that page
(and are not so designated), is not a day on which payments in ECU cannot be
settled in the international interbank market. "Principal Financial Center"
means the capital city of the country issuing the Specified Currency or, solely
with respect to the calculation of LIBOR, the Index Currency, except that with
respect to United States dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU, the Principal Financial Center
shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the
A-5
<PAGE>
Partnership will be converted by the Exchange Rate Agent specified above into
United States dollars for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive such amounts in such Specified Currency. If
the holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Partnership for the purchase by the quoting
dealer of the Specified Currency for United States dollars for settlement on
such payment date in the aggregate amount of such Specified Currency payable to
all holders of Foreign Currency Notes scheduled to receive United States dollar
payments and at which the applicable dealer commits to execute a contract. All
currency exchange costs will be borne by the holder of this Note by deductions
from such payments. If three such bid quotations are not available, payments on
this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or sent
by cable, telex or other form of facsimile transmission. The holder of this Note
may elect to receive all or a specified portion of all future payments in the
Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be. If the Specified Currency is other than
United States dollars or a composite currency and the holder of this Note shall
have duly made an election to receive all or a specified portion of any payment
of principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency and if the Specified Currency is not available due to the
imposition of exchange controls or other circumstances beyond the reasonable
control of the Partnership, the Partnership will be entitled to satisfy its
obligations to the holder of this Note by making such payment in United States
dollars on the basis of the Market Exchange Rate (as defined below) on the
second Business Day prior to such payment date or, if such Market Exchange Rate
is not then available, on the basis of the most recently available Market
Exchange Rate or as otherwise specified on the face hereof. The "Market Exchange
Rate" for the Specified Currency means the noon dollar buying rate in The City
of New York for cable transfers for such Specified Currency as certified for
customs purposes by (or if not so certified, as
A-6
<PAGE>
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture) with respect to this Note.
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the
reasonable control of the Partnership, then the Partnership will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars shall
be computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the "Component Currencies"
and each, a "Component Currency") shall be the currency amounts that were
components of the composite currency as of the last day on which the composite
currency was used. The equivalent of the composite currency in United States
dollars shall be calculated by aggregating the United States dollar equivalents
of the Component Currencies. The United States dollar equivalent of each of the
Component Currencies shall be determined by the Exchange Rate Agent on the basis
of the most recently available Market Exchange Rate for each such Component
Currency, or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above on the face hereof, in the
Addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions".
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<PAGE>
Unless the Certificate of Authentication hereon has been executed by the
Trustee or its Authenticating Agent by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, Bradley Operating Limited Partnership has caused this
Note to be duly executed under its seal.
Dated: BRADLEY OPERATING LIMITED PARTNERSHIP
By: Bradley Real Estate, Inc.,
Its General Partner
By:_______________________________________
Thomas P. D'Arcy
Chairman of the Board,
President and Chief Executive Officer
[SEAL]
Attest:
_________________________
William B. King
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
Dated:_______ By____________________________________
Authorized Signatory
A-8
<PAGE>
[REVERSE OF NOTE]
BRADLEY OPERATING LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of September 28, 1998, as supplemented by the Supplemental Indenture
No. 1 dated as of September 28, 1998, as further amended, modified or
supplemented from time to time (the "Indenture"), between the Partnership and
U.S. Bank Trust National Association, as Trustee (the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trust, the Trustee and the holders of the Securities, and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This Note
is one of the series of Securities designated as "Medium-Term Notes Due Nine
Months or More from Date of Issue" (the "Notes"). All terms used but not defined
in this Note or in an Addendum hereto shall have the meanings assigned to such
terms in the Indenture or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S. $1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Partnership on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given not more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture. The
"Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof multiplied by the unpaid principal amount of this
Note to be redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified on the face hereof until the Redemption Price is
100% of the unpaid principal amount to be redeemed. In the event of redemption
of this Note in part only, a new Note of like tenor for the unredeemed portion
hereof and
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otherwise having the same terms as this Note shall be issued in the name of the
holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Partnership at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S. $1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, the Trustee must receive
at its office in the Borough of Manhattan, The City of New York, referred to on
the face hereof, at least 30 days but not more than 60 days prior to the
Repayment Date (i) this Note and the form hereon entitled "Option to Elect
Repayment" duly completed or (ii) a telegram, telex, facsimile transmission, or
a letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States setting forth the name of the holder hereof, the principal
amount of this Note, the principal amount of this Note to be repaid, the
certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby, and a
guarantee that this Note, together with the form hereon entitled "Option to
Elect Repayment" duly completed, 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 that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and duly completed
form are received by the Trustee by such fifth Business Day. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the face
hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued using a constant yield method. The constant
yield will be calculated using a 30-day month, 360-day year convention, a
compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
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<PAGE>
coupon rate applicable to this Note and an assumption that the maturity of this
Note will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate Note"
or as otherwise specified as Other/Additional Provisions on the face hereof or
in an Addendum hereto, this Note shall be designated as a "Regular Floating Rate
Note" and, except as set forth below or specified on the face hereof or in an
Addendum hereto, shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if any,
and/or (b) multiplied by the Spread Multiplier, if any, in each case as
specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at which interest
on this Note shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; provided, however, that the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the face
hereof as a "Floating Rate/Fixed Rate Note", then, except as set forth below or
specified on the face hereof or in an Addendum hereto, this Note shall bear
interest at the rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by
the Spread Multiplier, if any. Commencing on the Initial Interest Reset Date,
the rate at which interest on this Note shall be payable shall be reset as of
each Interest Reset Date; provided, however, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate and (z) the interest rate
in effect for the period commencing on the Fixed Rate Commencement Date
specified on the face hereof to the Maturity Date shall be the Fixed Interest
Rate specified on the face hereof or, if no such Fixed Interest Rate is
specified, the interest rate in effect hereon on the day immediately preceding
the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on the face
hereof as an "Inverse Floating Rate Note," then, except as set forth below or
specified on the face hereof or in an Addendum hereto, this Note shall bear
interest at the Fixed Interest Rate minus the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any; provided, however,
that, unless otherwise specified on the face hereof or in an Addendum hereto,
the interest rate hereon shall not be less than zero. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date;
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<PAGE>
provided, however, that the interest rate in effect for the period, if any, from
the Original Issue Date to the Initial Interest Reset Date shall be the Initial
Interest Rate.
Except as set forth above or specified on the face hereof or in an Addendum
hereto, the interest rate in effect on each day shall be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest Reset
Date or (ii) if such day is not an Interest Reset Date, the interest rate
determined as of the Interest Determination Date immediately preceding the most
recent Interest Reset Date. If any Interest Reset Date would otherwise be a day
that is not a Business Day, such Interest Reset Date shall be postponed to the
next succeeding Business Day, except that if LIBOR is an applicable Interest
Rate Basis and such Business Day falls in the next succeeding calendar month,
such Interest Reset Date shall be the immediately preceding Business Day. In
addition, if the Treasury Rate is an applicable Interest Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, then
such Interest Reset Date will be postponed to the next succeeding Business Day.
The interest rate applicable to each Interest Reset Period commencing on
the related Interest Reset Date will be determined by the Calculation Agent as
of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to LIBOR and the Eleventh District Cost of Funds Rate, which will
be calculated on such Interest Determination Date. The "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds Rate
shall be the last business day of the month immediately preceding the applicable
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); and the
"Interest Determination Date" with respect to LIBOR shall be the second London
Business Day immediately preceding the applicable Interest Reset Date, unless
the Index Currency is British pounds sterling, in which case the "Interest
Determination Date" will be the applicable Interest Reset Date. The "Interest
Determination Date", with respect to the Treasury Rate shall be the day in the
week in which the applicable Interest Reset Date falls on which day Treasury
Bills (as defined below) are normally auctioned (Treasury Bills are normally
sold at an auction held on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the following Tuesday,
except that such auction may be held on the preceding Friday); provided,
however, that if an auction is held on the Friday of the week preceding the
applicable Interest Reset Date, the "Interest Determination Date" shall be such
preceding Friday. If the interest rate of this Note is determined with reference
to two or more Interest Rate Bases specified on the face hereof, the "Interest
Determination Date" pertaining to this Note shall be the most recent Business
Day which is at least two Business Days prior to the applicable Interest Reset
Date on which each Interest Rate Basis is determinable. Each Interest Rate Basis
shall be determined as of such date, and the applicable interest rate shall take
effect on the applicable Interest Reset Date.
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Unless otherwise specified on the face hereof or in an Addendum hereto, the
rate with respect to each Interest Rate Basis will be determined in accordance
with the following provisions.
CD Rate. If an Interest Rate Basis for this Note is specified on the face
hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDS (Secondary Market)," or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable United States dollar certificates of deposit
of the Index Maturity as published by the Federal Reserve Bank of New York in
its daily statistical release "Composite 3:30 P.M. Quotations for United States
Government Securities" or any successor publication ("Composite Quotations")
under the heading "Certificates of Deposit." If such rate is not yet published
in either H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money center banks in the market for negotiable United
States dollar certificates of deposit with a remaining maturity closest to the
Index Maturity in an amount that is representative for a single transaction in
that market at that time; provided, however, that if the dealers so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the CD Rate
determined as of such CD Rate Interest Determination Date will be the CD Rate in
effect on such CD Rate Interest Determination Date.
CMT Rate. If an Interest Rate Basis for this Note is specified on the face
hereof as the CMT Rate, the CMT Rate shall be determined as of the applicable
Interest Determination Date (a "CMT Rate Interest Determination Date") as the
rate displayed on the Designated CMT Telerate Page (as defined below) under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.," under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Rate Interest Determination Date and (ii) if
the Designated CMT Telerate Page is 7052, the weekly or monthly average, as
specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date occurs. If such rate is no longer displayed on
the relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not
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<PAGE>
published by 3:00 P.M., New York City time, on the related Calculation Date,
then the CMT Rate on such CMT Rate Interest Determination Date will be such
treasury constant maturity rate for the Designated CMT Maturity Index (or other
United States Treasury rate for the Designated CMT Maturity Index) for the CMT
Rate Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve System
or the United States Department of the Treasury that the Calculation Agent
determines to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519). If such information is not provided by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate on the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
of the secondary market closing offer side prices as of approximately 3:30 P.M.,
New York City time, on such CMT Rate Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of New
York selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent and eliminating the highest quotation (or, in
the event of equality, one of the highest) and the lowest quotation (or, in the
event of equality, one of the lowest)), for the most recently issued direct
noncallable fixed rate obligations of the United States ("Treasury Notes") with
an original maturity of approximately the Designated CMT Maturity Index and a
remaining term to maturity of not less than such Designated CMT Maturity Index
minus one year. If the Calculation Agent is unable to obtain three such Treasury
Note quotations, the CMT Rate on such CMT Rate Interest Determination Date will
be calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 P.M., New York City time, on such CMT Rate Interest
Determination Date of three Reference Dealers in The City of New York (from five
such Reference Dealers selected by the Calculation Agent and eliminating the
highest quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Notes with an original maturity of the number of years that is the next
highest to the Designated CMT Maturity Index and a remaining term to maturity
closest to the Designated CMT Maturity Index and in an amount of at least
U.S.$100 million. If three or four (and not five) of such Reference Dealers are
quoting as described above, then the CMT Rate will be based on the arithmetic
mean of the offer prices obtained and neither the highest nor the lowest of such
quotes will be eliminated; provided, however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as mentioned herein, the
CMT Rate determined as of such CMT Rate Interest Determination Date will be the
CMT Rate in effect on such CMT Rate Interest Determination Date. If two Treasury
Notes with an original maturity as described in the second preceding sentence
have remaining terms to maturity equally close to the Designated CMT Maturity
Index, the Calculation Agent will obtain quotations for the Treasury Note with
the shorter remaining term to maturity and will use such quotations to calculate
the CMT Rate as set forth above.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service (or any successor service) on the page specified on the face hereof (or
any other page as may replace such page on that service (or any successor
service) for the purpose of displaying
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Treasury Constant Maturities as reported in H.15(519)). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the United States Treasury securities (either one, two, three, five, seven, 10,
20 or 30 years) specified on the face hereof with respect to which the CMT Rate
will be calculated. If no such maturity is specified on the face hereof, the
Designated CMT Maturity Index shall be two years.
Commercial Paper Rate. If an Interest Rate Basis for this Note is specified
on the face hereof as the Commercial Paper Rate, the Commercial Paper Rate shall
be determined as of the applicable Interest Determination Date (a "Commercial
Paper Rate Interest Determination Date") as the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index Maturity
as published in H.15(519) under the heading "Commercial Paper - NonFinancial."
In the event that such rate is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the Commercial Paper Rate on such
Commercial Paper Rate Interest Determination Date will be the Money Market Yield
of the rate or commercial paper having the Index Maturity as published in
Composite Quotations under the heading "Commercial Paper" (with an Index
Maturity of one month or three months being deemed to be equivalent to an Index
Maturity of 30 days or 90 days, respectively). If such rate is not yet published
in either H.l5(519) or Composite Quotations by 3:00 P.M., New York City time, on
the related Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper
having the Index Maturity placed for an industrial issuer whose bond rating is
"AA," or the equivalent, from a nationally recognized statistical rating
organization; provided, however, that if the dealers so selected by the
Calculation Agent are not quoting as mentioned in this sentence, the Commercial
Paper Rate determined as of such Commercial Paper Rate Interest Determination
Date will be the Commercial Paper Rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
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Eleventh District Cost of Funds Rate. If an Interest Rate Basis for this
Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "llth District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
Federal Funds Rate. If an Interest Rate Basis for this Note is specified on
the face hereof as the Federal Funds Rate, the Federal Funds Rate shall be
determined as of the applicable Interest Determination Date (a "Federal Funds
Rate Interest Determination Date") as the rate on such date for United States
dollar federal funds as published in H.15(519) under the heading "Federal Funds
(Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If such rate is not published in either H.15(519) or
Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
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(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case
such single rate will be used) for deposits in the Index Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page (as defined below) as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date, or (b) "LIBOR Telerate" is
specified on the face hereof, or if neither "LIBOR Reuters" nor "LIBOR
Telerate" is specified on the face hereof as the method for calculating
LIBOR, the rate for deposits in the Index Currency having the Index
Maturity, commencing on such Interest Reset Date, that appears on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates appear, or if no
such rate appears, as applicable, LIBOR on such LIBOR Interest
Determination Date shall be determined in accordance with the provisions
described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which
fewer than two offered rates appear, or no rate appears, as the case may
be, on the Designated LIBOR Page as specified in clause (i) above, the
Calculation Agent shall request the principal London offices of each of
four major reference banks in the London interbank market, as selected by
the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in the Index Currency for the period of the Index
Maturity, commencing on the applicable Interest Reset Date, to prime banks
in the London interbank market at approximately 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time. If at least two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two such quotations are so provided, then
LIBOR on such LIBOR Interest Determination Date will be the arithmetic mean
of the rates quoted at approximately 11:00 A.M., in the applicable
Principal Financial Center, on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Index Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in such Index Currency in such
market at such time; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in
effect on such LIBOR Interest Determination Date.
"Index Currency" means the currency or composite currency specified on the
face hereof as to which LIBOR shall be calculated.
If no such currency or composite currency is specified on the face hereof, the
Index Currency shall be United States dollars.
A-17
<PAGE>
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other page
as may replace such page on such service (or any successor service)), for the
purpose of displaying the London interbank rates of major banks for the Index
Currency, or (b) if "LIBOR Telerate" is specified on the face hereof or neither
"LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof as the
method for calculating LIBOR, the display on the Dow Jones Telerate Service (or
any successor service) on the page specified on the face hereof (or any other
page as may replace such page on such service (or any successor service)), for
the purpose of displaying the London interbank rates of major banks for the
applicable Index Currency.
Prime Rate. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan." If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, then the Prime
Rate shall be the arithmetic mean of the prime rates quoted on the basis of the
actual number of days in the year divided by a 360-day year as of the close of
business on such Prime Rate Interest Determination Date by four major money
center banks in The City of New York selected by the Calculation Agent. If fewer
than four such quotations are so provided, the Prime Rate shall be the
arithmetic mean of four prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Rate Interest Determination Date as furnished in The City of New York by
the major money center banks, if any, that have provided such quotations and by
a reasonable number of substitute banks or trust companies to obtain four such
prime rate quotations, provided such substitute banks or trust companies are
organized and doing business under the laws of the United States, or any State
thereof, each having total equity capital of at least U.S.$500 million and being
subject to supervision or examination by Federal or State authority, selected by
the Calculation Agent to provide such rate or rates; provided, however, that if
the banks or trust companies so selected by the Calculation Agent are not
quoting as mentioned in this sentence, the Prime Rate determined as of such
Prime Rate Interest Determination Date will be the Prime Rate in effect on such
Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuter Monitor Money Rates Service (or any successor service)
(or such other page as may replace the USPRIME1 page on such service (or any
successor service) for the purpose of displaying prime rates or base lending
rates of major United States banks).
A-18
<PAGE>
Treasury Rate. If an Interest Rate Basis for this Note is specified on the
face hereof as the Treasury Rate, the Treasury Rate shall be determined as of
the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity are not reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity; provided, however, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The "Calculation Date", if applicable, pertaining to any Interest
Determination Date shall be the earlier of (i) the tenth calendar day after such
Interest Determination Date or, if such day is not a Business Day, the next
succeeding Business Day or (ii) the Business Day immediately preceding the
applicable Interest Payment Date or the Maturity Date, as the case may be. At
the request of the Holder hereof, the Calculation Agent will provide to the
Holder hereof the interest rate hereon then in effect and, if determined, the
interest rate that will become effective as a result of a determination made for
the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying the
principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
A-19
<PAGE>
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied. All percentages
resulting from any calculation on this Note shall be rounded to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upwards (e.g., 5.876545% (or .05876545) would be
rounded to 5.87655% (or .0587655)), and all amounts used in or resulting from
such calculation on this Note shall be rounded, in the case of United States
dollars, to the nearest cent or, in the case of a Specified Currency other than
United States dollars or a composite currency, to the nearest unit (with one-
half cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes 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 Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
A-20
<PAGE>
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and arrangements
relating to any transaction contemplated hereby or thereby have been executed or
entered into by the undersigned in his/her capacity as an officer of the sole
general partner of the Partnership which has been formed as a Delaware limited
partnership, and not individually, and neither the general partner, officers,
employees or limited partners of the Partnership shall be bound or have any
personal liability hereunder or thereunder. The holder of this Note by accepting
this Note waives and releases all such liability. This waiver and release are
part of the consideration for the issue of this Note. Each party hereto shall
look solely to the assets of the Partnership for satisfaction of any liability
of the Partnership in respect of this Note and all documents, agreements,
understandings and arrangements relating to any transaction contemplated hereby
or thereby and will not seek recourse or commence any action against any of the
general partner, officers, employees or limited partners of the Partnership or
any of their personal assets for the performance or payment of any obligation
hereunder or thereunder. The foregoing shall also apply to any future documents,
agreements, understandings, arrangements and transactions between the parties
hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to principles
of conflicts of laws.
A-21
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIF GIFT MIN ACT -___________ Custodian __________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
A-22
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
_________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
_________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing -________________Attorney to transfer this Note on the books of the
Trustee, with full power
_________________________________________________________________________
of substitution in the premises.
Dated:_____________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
A-23
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, this Note with this
"Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_______________
Date: ________________________ Notice: The signature(s) on this Option to
Elect Repayment must correspond with the
name(s) as written upon the face of this
Note in every particular, without alteration
or enlargement or any change whatsoever.
A-24
<PAGE>
EXHIBIT B
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN./1/
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY./2/
REGISTERED [PRINCIPAL AMOUNT]
No. FXR-
CUSIP:*
BRADLEY OPERATING LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY
INTEREST PAYMENT DEFAULT RATE: % DATE:
DATE(S) ____ and ____
Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
____________________________
/1/ This paragraph applies to global Notes only.
/2/ This paragraph applies to global Notes only.
<PAGE>
OPTIONAL REPAYMENT CHECK IF AN ORIGINAL
DATE(S) ISSUE DISCOUNT NOTE
Issue Price: %
REPAYMENT PRICE: %
SPECIFIED CURRENCY: AUTHORIZED EXCHANGE RATE
[ ] United States dollars DENOMINATION: AGENT:
[ ] Other: [ ] $1,000 and integral
multiples thereof
[ ] Other:
EXCHANGE RATE: ADDENDUM ATTACHED: OTHER/ADDITIONAL
U.S. $1.00 = ________ [ ]Yes PROVISIONS:
[ ]No
Bradley Operating Limited Partnership, a limited partnership duly organized
and existing under the laws of Delaware (hereinafter referred to as the
"Partnership," which term includes any successor entity under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
_______________________, or registered assigns, the principal sum of
_____________________, on the Stated Maturity Date specified above (or any
Redemption Date or Repayment Date, each as defined on the reverse hereof) (each
such Stated Maturity Date, Redemption Date or Repayment Date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the Interest Rate per annum specific
above, until the principal hereof is paid or duly made available for payment,
and (to the extent that the payment of such interest shall be legally
enforceable) at the Default Rate per annum specified above on any overdue
principal, premium and/or interest, including any overdue sinking fund or
redemption payment. The Partnership will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
however, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date next succeeding the Original
Issue Date to the holder of this Note on the Record Date with respect to such
second Interest Payment Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for) to, but excluding, the applicable Interest Payment
Date or the Maturity Date, as the case may be (each, an "Interest Period"). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
B-2
<PAGE>
the person in whose name this Note (or one or more predecessor Notes) is
registered at the close of business on the fifteenth calendar day (whether or
not a Business Day, as defined below) immediately preceding such Interest
Payment Date (the "Record Date"); provided, however, that interest payable on
the Maturity Date will be payable to the person to whom the principal hereto and
premium, if any, hereon shall be payable. Any such interest not so punctually
paid or duly provided for ("Defaulted Interest") will forthwith cease to be
payable to the holder on any Record Date, and shall be paid to the person in
whose name this Note is registered at the close of business on a special record
date (the "Special Record Date") for the payment of such Defaulted Interest to
be fixed by the Trustee hereinafter referred to, notice whereof shall be given
to the holder of this Note by the Trustee not more than 15 days and not less
than 10 days prior to such Special Record Date or may be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which this Note may be listed, and upon such notice as may be
required by such exchange, all as more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this Note
due on the Maturity Date or any prior date on which the principal or an
installment of principal of this Note becomes due and payable, whether by the
declaration of acceleration or otherwise, will be made in immediately available
funds upon presentation and surrender of this Note (and, with respect to any
applicable repayment of this Note, upon presentation and surrender of this Note
and a duly completed election form as contemplated on the reverse hereof) at the
office or agency maintained by the Partnership for that purpose in the Borough
of Manhattan, The City of New York, currently the office of the Trustee;
provided, however, that if the Specified Currency specified above is other than
United States dollars and such payment is to be made in the Specified Currency
in accordance with the provisions set forth below, such payment may be made by
wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed repayment election form) is presented
and surrendered at the aforementioned office or agency maintained by the
Partnership in time for the Trustee to make such payment in such funds in
accordance with its normal procedures. Payment of interest due on any Interest
Payment Date other than the Maturity Date will be made at the aforementioned
office or agency maintained by the Partnership or, at the option of the
Partnership, by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register maintained by the Trustee;
provided, however, that a holder of U.S. $10,000,000 (or, if the Specified
Currency is other than United States dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes (whether
having identical or different terms and pro-visions) will be entitled to receive
interest payments on any Interest Payment Date other than the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder.
B-3
<PAGE>
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York, or Chicago; provided, however, that if the Specified Currency
is other than United States dollars, such day is also not a day on which banking
institutions are authorized or required by law, regulation or executive order to
close in the Principal Financial Center (as defined below) of the country
issuing the Specified Currency (or, if the Specified Currency is European
Currency Units ("ECU"), such day is not a day that appears as an ECU no-
settlement day on the display designated as "ISDE" on the Reuter Monitor Money
Rates Service (or a day so designated by the ECU Banking Association), or, if
ECU non-settlement days do not appear on that page (and are not so designated),
is not a day on which payments in ECU cannot be settled in the international
interbank market). Principal Financial Center means the capital city of the
country issuing the Specified Currency, except that with respect to United
States dollars, Australian dollars, Deutsche marks, Dutch guilders, Italian
lire, Swiss francs and ECU, the Principal Financial Center shall be The City of
New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and Luxembourg,
respectively.
The Partnership is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, except as provided below, any such amounts so
payable by the Partnership will be converted by the Exchange Rate Agent
specified above into United States dollars for payment to the holder of this
Note.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive such amounts in such Specified Currency. If
the holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Partnership for the purchase by the quoting
dealer of the Specified Currency for United States dollars for settlement on
such payment date in the aggregate amount of such Specified
B-4
<PAGE>
Currency payable to all holders of Foreign Currency Notes scheduled to receive
United States dollar payments and at which the applicable dealer commits to
execute a contract. All currency exchange costs will be borne by the holder of
this Note by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust Office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or sent
by cable, telex or other form of facsimile transmission. The holder of this Note
may elect to receive all or a specified portion of all future payments in the
Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the reasonable control of the
Partnership, the Partnership will be entitled to satisfy its obligations to the
holder of this Note by making such payment in United States dollars on the basis
of the Market Exchange Rate (as defined below) on the second Business Day prior
to such payment date or, if such Market Exchange Rate is not then available, on
the basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for such Specified Currency as certified for customs purposes by (or
if not so certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture) with respect to
this Note.
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the
reasonable control of the Partnership, then the Partnership will be entitled to
satisfy its obligations to the holder of this Note by making such payment in
United States dollars. The amount of each payment in United States dollars shall
be computed by the Exchange Rate Agent on the basis of the equivalent of the
composite currency in United States dollars. The component currencies of the
composite currency for this purpose (collectively, the
B-5
<PAGE>
"Component Currencies" and each, a "Component Currency") shall be the currency
amounts that were components of the composite currency as of the last day on
which the composite currency was used. The equivalent of the composite currency
in United States dollars shall be calculated by aggregating the United States
dollar equivalents of the Component Currencies. The United States dollar
equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the most recently available Market Exchange
Rate for each such Component Currency, or as otherwise specified on the face
hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above on the face hereof, in the
Addendum hereto, which further provisions shall have the same force and effect
as if set forth on the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply to this Note, this Note shall be subject to
the terms set forth in such Addendum or such "Other/Additional Provisions."
Unless the Certificate of Authentication hereon has been executed by the
Trustee or its Authenticating Agent by manual signature, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
B-6
<PAGE>
IN WITNESS WHEREOF, Bradley Operating Limited Partnership has caused this
Note to be duly executed under its seal.
Dated:________ BRADLEY OPERATING LIMITED PARTNERSHIP
By: Bradley Real Estate, Inc.
its General Partner
By:_____________________________
Thomas P. D'Arcy
Chairman of the Board,
President and Chief Executive Officer
(SEAL)
Attest:
_________________________
William B. King
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By__________________________
Authorized Signatory
B-7
<PAGE>
[REVERSE OF NOTE]
BRADLEY OPERATING LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Securities (the
"Securities") of the Partnership issued and to be issued under an Indenture,
dated as of September 28, 1998 as supplemented by the Supplemental Indenture No.
1 dated as of September 28, 1998, as further amended, modified or supplemented
from time to time (the "Indenture"), between the Partnership and U.S. Bank Trust
National Association, as Trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the
Partnership, the Trustee and the holders of the Securities, and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Note is one of the series of Securities designated as "Medium-Term Notes Due
Nine Months or More from Date of Issue" (the "Notes"). All terms used but not
defined in this Note or in an Addendum hereto shall have the meanings assigned
to such terms in the Indenture or on the face hereof, as the case may be.
This Note is issuable only in registered form without coupons in minimum
denominations of U.S. $1,000 and integral multiples thereof or the minimum
Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
specified on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Partnership on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or
the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S. $1,000 or such minimum Authorized
Denomination), at the Redemption Price (as defined below), together with unpaid
interest accrued thereon to the date fixed for redemption (each, a "Redemption
Date"), on notice given not more than 60 nor less than 30 calendar days prior to
the Redemption Date and in accordance with the provisions of the Indenture. The
"Redemption Price" shall initially be the Initial Redemption Percentage
specified on the face hereof multiplied by the unpaid principal amount of this
Note to be redeemed. The Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction, if any, specified on the face hereof until the Redemption Price is
100% of the unpaid principal amount to be redeemed. In the event of redemption
of this Note in part only, a new Note of like tenor for the unredeemed portion
hereof and otherwise having the same terms as this Note shall be issued in the
name of the holder hereof upon the presentation and surrender hereof.
B-8
<PAGE>
This Note will be subject to repayment by the Partnership at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or the minimum
Authorized Denomination (provided that any remaining principal amount hereof
shall be at least U.S.$1,000 or such minimum Authorized Denomination), at a
repayment price equal to 100% of the unpaid principal amount to be repaid,
together with unpaid interest accrued thereon to the date fixed for repayment
(each, a "Repayment Date"). For this Note to be repaid, the Trustee must receive
at its office in the Borough of Manhattan, The City of New York, referred to on
the face hereof, at least 30 days but not more than 60 days prior to the
Repayment Date (i) this Note and the form hereon entitled "Option to Elect
Repayment" duly completed or (ii) a telegram, telex, facsimile transmission, or
a letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or trust company in
the United States setting forth the name of the holder hereof, the principal
amount of this Note, the principal amount of this Note to be repaid, the
certificate number or a description of the tenor and terms of this Note, a
statement that the option to elect repayment is being exercised thereby, and a
guarantee that this Note, together with the form hereon entitled "Option to
Elect Repayment" duly completed, 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 that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and duly completed
form are received by the Trustee by such fifth Business Day. Exercise of such
repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the face
hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event of any redemption
of this Note (if applicable), multiplied by the Initial Redemption Percentage
(as adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as the
case may be. The difference between the Issue Price and 100% of the principal
amount of this Note is referred to herein as the "Discount."
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued using a constant yield method. The constant
yield will be calculated using a 30-day month, 360-day year convention, a
compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial coupon
rate applicable to this Note and an assumption that the maturity of this Note
will not be accelerated. If the period from the Original Issue Date to the
initial Interest Payment Date (the
B-9
<PAGE>
"Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding-period will be
accrued. If the Initial Period is longer than the compounding period, then such
period will be divided into a regular compounding period and a short period,
with the short period being treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Partnership and the rights of the holders of the Securities at any time by the
Partnership and the Trustee with the consent of the holders of not less than a
majority of the aggregate principal amount of all Securities at the time
outstanding and affected thereby. The Indenture also contains provisions
permitting the holders of not less than a majority of the aggregate principal
amount of the outstanding Securities of any series, on behalf of the holders of
all such Securities, to waive compliance by the Partnership with certain
provisions of the Indenture. Furthermore, provisions in the Indenture permit the
holders of not less than a majority of the aggregate principal amount of the
outstanding Securities of any series, in certain instances, to waive, on behalf
of all of the holders of Securities of such series, certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the holder
of this Note shall be conclusive and binding upon such holder and upon all
future holders of this Note and other Notes issued upon the registration of
transfer hereof or in exchange heretofore or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Partnership, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer of this Note is registrable in the Security
Register of the Partnership upon surrender of this Note for registration of
transfer at the office or agency of the Partnership in any place where the
principal hereof and any premium or interest hereon are payable, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Partnership and the Security Registrar, duly executed by, the holder hereof
or by his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
B-10
<PAGE>
As provided in the Indenture and subject to certain limitations therein and
herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer or
exchange, but the Partnership may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Partnership, the Trustee and any agent of the Partnership or the Trustee may
treat the holder in whose name this Note is registered as the owner thereof for
all purposes, whether or not this Note be overdue, and neither the Partnership,
the Trustee nor any such agent shall be affected by notice to the contrary.
This Note and all documents, agreements, understandings and arrangements
relating to any transaction contemplated hereby or thereby have been executed or
entered into by the undersigned in his/her capacity as an officer of the sole
general partner of the Partnership which has been formed as a Delaware limited
partnership, and not individually, and neither the general partner, officers,
employees or limited partners of the Partnership shall be bound or have any
personal liability hereunder or thereunder. The holder of this Note by accepting
this Note waives and releases all such liability. This waiver and release are
part of the consideration for the issue of this Note. Each party hereto shall
look solely to the assets of the Partnership for satisfaction of any liability
of the Partnership in respect of this Note and all documents, agreements,
understandings and arrangements relating to any transaction contemplated hereby
or thereby and will not seek recourse or commence any action against any of the
trustees, officers or shareholders of the Partnership or any of their personal
assets for the performance or payment of any obligation hereunder or thereunder.
The foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties hereto.
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of laws.
B-11
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT -___________ Custodian __________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act _____________________
(State)
Additional abbreviations may also be used though not in the above list.
B-12
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
______________________________
(Please print or typewrite name and address including postal zip code of
assignee) this Note and all rights thereunder hereby irrevocably constituting
and appointing Attorney to transfer this Note on the books of the Trustee, with
full power of substitution in the premises.
Dated:__________________
NOTICE: The signature(s) on this Assignment must correspond with the
name(s) as written upon the face of this Note in every particular, without
alteration or enlargement or any change whatsoever.
B-13
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Partnership to repay this Note (or portion hereof specified below) pursuant to
its terms at a price equal to 100% of the principal amount to be repaid,
together with unpaid interest accrued hereon to the Repayment Date, to the
undersigned, at
__________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee or the Designated Agent must
receive at its corporate trust office in the Borough of Manhattan, The City of
New York, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid: $_________________
Date:____________ _______________________________
Notice: The signature(s) on this
Option to Elect Repayment must correspond
with the name(s) as written upon the face
of this Note in every particular, without
alteration or enlargement or any change
whatsoever.
B-14
