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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
MARCH 23, 1998
GABLES REALTY LIMITED PARTNERSHIP
(Exact name of Registrant as specified in its charter)
DELAWARE 000-22683 58-2077966
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation) Number) Identification No.)
2859 PACES FERRY ROAD, SUITE 1450
ATLANTA, GEORGIA 30339
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code:
770-436-4600
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ITEM 5. OTHER EVENTS.
On March 23, 1998, Gables Realty Limited Partnership (the "Partnership"),
the entity through which Gables Residential Trust (the "Company") conducts
substantially all of its business and owns (either directly or through
subsidiaries) substantially all of its assets, completed the offering of an
aggregate $100,000,000 principal amount of its 6.80% Senior Notes due 2005 (the
"Notes"). The offering of the Notes was made pursuant to a Prospectus Supplement
dated March 18, 1998 relating to the Prospectus dated August 11, 1997 filed with
the Partnership's and the Company's shelf registration statement on Form S-3
(File No. 333-30093).
The Notes bear interest at 6.80% per annum from March 15, 1998, with
interest payable in arrears each March 15 and September 15 commencing September
15, 1998. The entire principal amount of the Notes is due March 15, 2005. The
Notes are redeemable at any time at the option of the Partnership, in whole or
in part, at a redemption price equal to the sum of (i) the principal amount of
the Notes being redeemed plus accrued interest thereon to the redemption date
and (ii) the Make-Whole Amount (as defined in Supplemental Indenture No. 1
referenced below), if any, with respect to such Notes.
The Notes were issued under an Indenture and a Supplemental Indenture No.
1, each dated March 23, 1998, between the Partnership and First Union National
Bank, as trustee. The offering of the Notes was underwritten by PaineWebber
Incorporated and Lehman Brothers Inc. The underwriting discount was 0.625% and
the price to the public was 99.751% of the principal amount of the Notes.
The net proceeds to the Partnership from the sale of the Notes, after
deducting the underwriting discount and related issuance costs, were
approximately $98.8 million. The Partnership will use the net proceeds to reduce
borrowings under its credit facilities.
Delivery of the Notes was made on March 23, 1998 through the facilities of
the Depository Trust Company, against payment therefor in immediately available
funds.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS.
(a) FINANCIAL STATEMENTS OF BUSINESS ACQUIRED:
Not Applicable
(b) PRO FORMA FINANCIAL INFORMATION:
Not Applicable
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(c) EXHIBITS:
EXHIBIT NO.
1.1 Underwriting Agreement, dated March 18, 1998.
4.1 Indenture, dated as of March 23, 1998, between Gables Realty Limited
Partnership and First Union National Bank.
4.2 Supplemental Indenture No. 1, dated March 23, 1998, between Gables
Realty Limited Partnership and First Union National Bank, including
a form of the 6.80% Senior Note due 2005.
4.3 Gables Realty Limited Partnership 6.80% Senior Note due 2005.
5.1 Opinion as to the legality of the Notes.
12.1 Gables Realty Limited Partnership Calculation of Ratios of Earnings
to Fixed Charges.
12.2 Gables Realty Limited Partnership Calculation of Ratios of Earnings
to Combined Fixed Charges and Preferred Dividends.
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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: March 30, 1998 GABLES REALTY LIMITED PARTNERSHIP
By: Gables GP, Inc., its general partner
/s/ Marvin R. Banks, Jr.
-----------------------------------
By: Marvin R. Banks, Jr.
Chief Financial Officer
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Exhibit 1.1
- --------------------------------------------------------------------------------
$100,000,000
GABLES REALTY LIMITED PARTNERSHIP
6.80% SENIOR NOTES DUE 2005
UNDERWRITING AGREEMENT
DATED MARCH 18, 1998
PAINEWEBBER INCORPORATED
LEHMAN BROTHERS INC.
- --------------------------------------------------------------------------------
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$100,000,000
GABLES REALTY LIMITED PARTNERSHIP
6.80% Senior Notes due 2005
UNDERWRITING AGREEMENT
March 18, 1998
PAINEWEBBER INCORPORATED
LEHMAN BROTHERS INC.
c/o PAINEWEBBER INCORPORATED
1285 Avenue of the Americas
New York, New York 10019
Ladies and Gentlemen:
INTRODUCTORY. Gables Realty Limited Partnership, a Delaware limited
partnership (the "Operating Partnership") of which the sole general partner is
Gables GP, Inc. ("Gables GP"), a Texas corporation and a wholly-owned subsidiary
of Gables Residential Trust, a Maryland real estate investment trust (the "REIT"
and, together with the Operating Partnership and Gables GP, the "Company"),
proposes to sell to the Underwriters named in SCHEDULE 1 hereto (the
"Underwriters") the aggregate principal amounts listed in SCHEDULE 1 hereto of
the Operating Partnership's debt securities identified in SCHEDULE 2 hereto (the
"Securities"), to be issued under an indenture, dated as of March 23, 1998, as
supplemented by a First Supplemental Indenture, to be dated as of March 23,
1998, each by and between the Operating Partnership and First Union National
Bank (the "Trustee"), as trustee (as so supplemented, the "Indenture").
The REIT and the Operating Partnership confirm their agreements with
the Underwriters as follows.
1. AGREEMENT TO SELL AND PURCHASE.
On the basis of the representations, warranties and agreements
contained herein, but subject to the terms and conditions set forth herein, the
Operating Partnership agrees to issue and sell the Securities to the
Underwriters as hereinafter provided, and the Underwriters agree to purchase
from the Operating Partnership the Securities at the purchase price set forth in
SCHEDULE 2 hereto plus accrued interest, if any, from the date specified in
SCHEDULE 2 hereto to the date of payment and delivery.
The Company understands that the Underwriters intend (i) to make a
public offering of the Securities, and (ii) initially to offer the Securities
upon the terms set forth in the Prospectus.
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2. DELIVERY AND PAYMENT.
Payment for the Securities shall be made to the Operating
Partnership or to its order in immediately available funds in the amount, on the
date and time set forth in SCHEDULE 2 hereto or at such place and at such other
time on the same date or such other date, not later than the eighth Business Day
thereafter, as the Underwriters and the Operating Partnership may agree in
writing (or if the NYSE or American Stock Exchange or commercial banks in the
City of New York are not open on any such day, the next day on which such
exchanges and banks are open). Such payment will be made upon delivery to the
Underwriters of the Securities registered in such names and in such
denominations as the Underwriters shall request not less than two full Business
Days prior to the date of delivery, with transfer taxes, if any, payable in
connection with transfer to the Underwriters duly paid by the Company. As used
herein, the term "Business Day" means any day other than a day on which banks
are permitted or required to be closed in New York City. The time and date of
such payment and delivery with respect to the Securities are referred to herein
as the "Closing Date." The Securities will be delivered through the book entry
facilities of The Depository Trust Company ("DTC") and will be made available
for inspection by the Underwriters by 1:00 P.M. New York City time on the
Business Day prior to the Closing Date at such place in New York City as the
Underwriter, DTC and the Operating Partnership shall agree.
The cost of original issue tax stamps, if any, in connection with
the issuance and delivery of the Securities by the Operating Partnership to the
Underwriters shall be borne by the Company. The Company will pay and save the
Underwriters and any subsequent holder of the Securities harmless from any and
all liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other transfer taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
the Underwriters of the Securities.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The REIT and the
Operating Partnership, jointly and severally, represent, warrant and covenant to
the Underwriters that:
(a) The Operating Partnership meets the requirements for use
of Form S-3 and a registration statement (Registration No. 333-30093) on
Form S-3 relating to the Securities, including a prospectus, has been
carefully prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder and has been filed with the
Commission and has become effective; and on or prior to the Closing Date
the Indenture shall have been qualified under the Trust Indenture Act of
1939, as amended (together with the rules and regulations of the
Commission thereunder, the "Trust Indenture Act"). Such registration
statement and prospectus may have been amended or supplemented prior to
the date of this Agreement; any such amendment or supplement was so
prepared and filed, and any such amendment filed after the effective date
of such registration statement has become effective. No stop order
suspending the effectiveness of the registration statement has been
issued, and no proceeding for that purpose has been instituted or, to the
Company's knowledge, threatened by the Commission. Copies of such
registration statement and prospectus, any such amendments or supplements
and all documents incorporated by reference therein that were filed with
the Commission on or prior to the date of this Agreement have been
delivered or made available to the Underwriters. A prospectus
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supplement (the "Prospectus Supplement") setting forth the terms of the
Securities and of their sale and distribution has been or will be so
prepared and will be filed pursuant to Rule 424(b) of the Rules and
Regulations on or before the second business day after the date hereof (or
such earlier time as may be required by the Rules and Regulations). Each
form of prospectus, or prospectus and prospectus supplement, subject to
completion and heretofore made available for use in offering the
Securities, including, without limitation, the prospectus supplement
subject to completion dated March 12, 1998, is referred to herein as a
"preliminary prospectus." The term "Registration Statement" means such
registration statement as amended at the time it became effective (the
"Effective Date"), including financial statements and all exhibits and any
information deemed by virtue of Rule 430A of the Rules and Regulations to
be included in such Registration Statement at the Effective Date and any
prospectus supplement filed thereafter with the Commission and shall
include the documents incorporated by reference therein pursuant to Item
12 of Form S-3 which were filed under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"). The term "Prospectus" means,
collectively, the Base Prospectus together with any prospectus supplement,
in the respective forms they are filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations, and includes the documents
incorporated by reference in the Base Prospectus and in any prospectus
supplement. Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
filing after the execution hereof of any document with the Commission
deemed to be incorporated by reference therein. For purposes of this
Underwriting Agreement, all references to the Registration Statement, the
Prospectus, any preliminary prospectus or any amendment or supplement
thereto shall be deemed to include any copy filed with the Commission
pursuant to its Electronic Data Gathering Analysis and Retrieval System
(EDGAR), and such copy shall be identical (except to the extent permitted
by Regulation S-T) to any Registration Statement, Prospectus or
preliminary prospectus, as the case may be, delivered to you for use in
connection with the offering of the Securities by the Operating
Partnership.
(b) Each part of the Registration Statement, when such part
became or becomes effective, each preliminary prospectus on the date of
filing thereof with the Commission and the Prospectus and any amendment or
supplement thereto, on the date of filing thereof with the Commission and
at the Closing Date, including the financial statements included or to be
included or incorporated by reference or to be incorporated by reference
in the Registration Statement, any preliminary prospectus or the
Prospectus, conformed or will conform in all material respects with the
requirements of the Act, the Rules and Regulations, the Exchange Act and
the rules and regulations thereunder (the "Exchange Act Rules and
Regulations") and will contain all statements required to be stated
therein in accordance with the Act, the Rules and Regulations, the
Exchange Act and the Exchange Act Rules and Regulations; the Indenture, on
the date of filing thereof with the Commission and at the Closing Date
conformed or will conform in all material respects with the requirements
of the Trust Indenture Act; 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; each preliminary prospectus, on the date of filing thereof
with the Commission, and the Prospectus and any amendment or supplement
thereto, on the date of filing thereof with the Commission and at the
Closing Date, did not or will not include an untrue statement of a
material fact or
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omit to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
foregoing representations and warranties in this Section 3(b) do not apply
to (i) that part of the Registration Statement which constitutes the
Statement of Eligibility and Qualification under the Trust Indenture Act
(the "Form T-1") and (ii) any statements or omissions made in reliance on
and in conformity with information relating to any Underwriter furnished
in writing to the Company by such Underwriter specifically for inclusion
in the Registration Statement, any preliminary prospectus or the
Prospectus or any amendment or supplement thereto. The Company
acknowledges that the only information furnished in writing to the Company
by the Underwriters specifically for inclusion in the Registration
Statement, any preliminary prospectus or the Prospectus is the information
set forth in EXHIBIT A hereto. The Company has not distributed any
offering material in connection with the offering or sale of the
Securities other than the Registration Statement, any preliminary
prospectus, the Prospectus, or any other materials, if any, permitted by
the Act.
(c) The documents incorporated or to be incorporated by
reference in the Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement thereto or from which
information is so incorporated by reference, when they became or become
effective or were or are filed with the Commission, as the case may be,
complied or will comply in all material respects with the requirements of
the Act or the Exchange Act, as applicable, the Exchange Act Rules and
Regulations and the Rules and Regulations.
(d) The only subsidiaries (as defined in the Rules and
Regulations) of the Company are the subsidiaries listed on SCHEDULE 3
hereto (the "subsidiaries"). The Company and each of its subsidiaries is,
and at the Closing Date will be, an entity duly organized or formed, as
the case may be, and, in the case of an entity that is not a general
partnership, validly existing and in good standing under the laws of the
jurisdiction of its organization or incorporation. The Company and each of
its subsidiaries has, and at the Closing Date will have, full power and
authority to conduct all the activities conducted by it, to own or lease
all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus. The Company
and each of its subsidiaries is, and at the Closing Date will be, duly
licensed or qualified to do business and (except Gables Tennessee
Properties, Pin Oak Park Apartments and Pin Oak Green, which are general
partnerships) in good standing as a foreign trust, limited partnership or
corporation, as the case may be, in all jurisdictions in which the nature
of the activities conducted by it or the character of the assets owned or
leased by it makes such licensing or qualification necessary except where
the failure to be so qualified does not have a material adverse effect on
the business, properties, financial position or results of the Company and
its subsidiaries, taken as a whole. Except for the stock or partnership
interests of the subsidiaries and as disclosed in the Registration
Statement, the Company does not own, and at the Closing Date will not own,
directly or indirectly, any shares of stock or any other equity or
long-term debt securities of any corporation or have any equity interest
in any firm, partnership, joint venture, association or other entity.
Complete and correct copies of the Amended and Restated Declaration of
Trust and the Second Amended and Restated By-laws of the Company and the
charter documents of each of its subsidiaries and all amendments thereto
have been delivered or made available to the
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Underwriters and no changes therein will be made subsequent to the date
hereof and prior to the Closing Date.
(e) The outstanding securities of the REIT, have been duly
authorized, validly issued, fully paid and nonassessable and will not be
subject to any preemptive or similar right. The description of the REIT's
common shares of beneficial interest, par value $0.01 per share (the
"Common Shares") in the Registration Statement and the Prospectus is, and
at the Closing Date will be, in all material respects, complete and
accurate. Except as set forth in the Prospectus, the REIT does not have
outstanding, and at the Closing Date will not have outstanding, any
options to purchase, or any rights or warrants to subscribe for, or any
securities or obligations convertible into, or any contracts or
commitments to issue or sell, any Common Shares, any preferred shares of
the REIT, any shares of capital stock of any subsidiary or any such
warrants, convertible securities or obligations other than (i) pursuant to
the REIT's dividend reinvestment plan and (ii) the REIT's Second Amended
and Restated 1994 Share Option and Incentive Plan, as amended.
(f) The outstanding securities of the Operating Partnership,
have been duly authorized and validly issued and will not be subject to
any preemptive or similar right. Except as set forth in the Prospectus,
the Operating Partnership does not have outstanding, and at the Closing
Date will not have outstanding, any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible
into, or any contracts or commitments to issue or sell, any shares of
capital stock of the Operating Partnership. There are no requirements,
restrictions or limitations in the terms of the Series A Preferred Units
of the Operating Partnership applicable to the issuance and sale of the
Securities.
(g) The Securities will be, as of the Closing Date, duly
authorized by the Operating Partnership for issuance and sale pursuant to
this Underwriting 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), and delivered to, and paid for in full by, the
Underwriters pursuant to this Underwriting Agreement, will be valid and
legally binding obligations of the Operating Partnership entitled to the
benefit of the Indenture and will be enforceable against the Company in
accordance with their terms, subject to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, (b) general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or
law), (c) the discretion of the court before which any proceeding therefor
may be brought, and (d) applicable Federal and state securities laws and
public policy which may limit the application of provisions relating to
indemnification and contribution with respect to securities law matters
(clauses (a), (b), (c) and (d) are collectively referred to as the
"Enforceability Limitations"); the Indenture has been duly qualified under
the Trust Indenture Act and prior to the issuance of the Securities 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
Securities and the Indenture will conform in all material respects to the
statements relating thereto contained in the Prospectus; and the
Securities will be, in all material respects, in the form contemplated by
the Indenture.
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(h) The financial statements and schedules of the Company
included or incorporated by reference in the Registration Statement or the
Prospectus present fairly the consolidated financial condition of the
Company as of the respective dates thereof and the consolidated results of
operations and cash flows of the Company for the respective periods
covered thereby, all in conformity with generally accepted accounting
principles applied on a consistent basis throughout the entire period
involved, except as otherwise disclosed in the Prospectus. The pro forma
financial statements of the Company, if any, included in the Registration
Statement and the Prospectus comply in all material respects with the
applicable requirements of Rule 11-02 of Regulation S-X of the Commission
and the pro forma adjustments have been properly applied to the historical
amounts in the compilation of such statements. No other financial
statements or schedules of the Company are required by the Act, the
Exchange Act or the Rules and Regulations to be included in the
Registration Statement or the Prospectus. Arthur Andersen LLP, independent
public accountants (the "Accountants"), who have reported on those of such
financial statements and schedules which are audited, are independent
accountants with respect to the Company as required by the Act and the
Rules and Regulations. The statements included in the Registration
Statement with respect to the Accountants pursuant to Rule 509 of
Regulation S-K of the Rules and Regulations are true and correct in all
material respects.
(i) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(j) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and prior to the
Closing Date, except as set forth in or contemplated by the Registration
Statement and the Prospectus, (i) there has not been and will not have
been any change in the capitalization of the Company, or in the business,
properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, arising for any
reason whatsoever, other than pursuant to the REIT's dividend reinvestment
plan or by way of grants of Common Shares or options to purchase Common
Shares or the exercise of such options, in any such case under the
Company's Second Amended and Restated 1994 Share Option and Incentive
Plan, as amended, (ii) neither the Company nor any of its subsidiaries has
incurred nor will it incur any material liabilities or obligations, direct
or contingent, nor has it entered into nor will it enter into any material
transactions other than pursuant to this Agreement and the transactions
referred to herein and (iii) the Company has not and will not have paid or
declared any dividends or other distributions of any kind on any class of
its capital stock.
(k) The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
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(l) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or
threatened against or affecting the Company or any of its subsidiaries or
any of their respective officers in their capacity as such, before or by
any Federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, wherein an
unfavorable ruling, decision or finding might materially and adversely
affect the Company or any of its subsidiaries or its business, properties,
business prospects, condition (financial or otherwise) or results of
operations.
(m) The Company and each of its subsidiaries has, and at the
Closing Date will have, (i) all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus, (ii) complied in all respects
with all laws, regulations and orders applicable to it or its business and
(iii) performed all its obligations required to be performed by it, and is
not, and at the Closing Date will not be, in default, under any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract or other agreement or
instrument (collectively, a "contract or other agreement") to which it is
a party or by which its property is bound or affected, the violation of
which would have a material adverse effect on the business, properties,
financial position or results of operations of the Company and its
subsidiaries, taken as a whole. To the best knowledge of the Company and
each of its subsidiaries, no other party under any contract or other
agreement to which it is a party is in default thereunder in such a manner
that, individually or in the aggregate, would have a reasonable likelihood
of causing a material adverse effect on the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company and its subsidiaries, taken as a whole. The Company is not,
nor at the Closing Date will be, in violation of any provision of its
Amended and Restated Declaration of Trust and Second Amended and Restated
By-laws. No subsidiary of the Company is, nor at the Closing Date will any
of them be, in violation of any provision in their respective charter
documents.
(n) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required for the consummation by the Company of the transactions on its
part herein contemplated, except such as have been obtained under the Act
or the Rules and Regulations and such as may be required under state or
Canadian securities or Blue Sky laws or the by-laws and rules of the
National Association of Securities Dealers, Inc. (the "NASD") in
connection with the purchase and distribution by the Underwriters of the
Securities to be sold by the Company.
(o) The Operating Partnership has full power and authority to
enter into this Agreement and the Indenture. The REIT has full power and
authority to enter into this Agreement and the Indenture. This Agreement
has been duly authorized, executed and delivered by the REIT and the
Operating Partnership and constitutes a valid and binding agreement of the
REIT and the Operating Partnership and is enforceable against the REIT and
the Operating Partnership in accordance with the terms hereof. The
performance of this Agreement and the Indenture and the consummation of
the transactions contemplated hereby and thereby will not result in the
creation or imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the terms
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or provisions of, or constitute a default under, or give any other party a
right to terminate any of its obligations under, or result in the
acceleration of any obligation under, the Amended and Restated Declaration
of Trust or Second Amended and Restated By-laws of the REIT or the
Partnership Agreement and any other organizational documents of the
Operating Partnership or the charter documents of Gables GP or any of the
Company's subsidiaries, any contract or other agreement to which the
Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries or any of its properties is bound or affected, or
violate or conflict with any judgment, ruling, decree, order, statute,
rule or regulation of any court or other governmental agency or body
applicable to the business or properties of the Company or any of its
subsidiaries.
(p) The Company and each of its subsidiaries has good and
marketable title to all properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (i) are described in the Prospectus or (ii)
are not material to the business of the Company or its subsidiaries, taken
as a whole. The Company and each of its subsidiaries has valid, subsisting
and enforceable leases for the properties described in the Prospectus as
leased by it, with such exceptions as are not material and do not
materially interfere with the use made and proposed to be made of such
properties by the Company and such subsidiaries; no tenant under any of
the leases pursuant to which the Company leases its properties has an
option or right of first refusal to purchase the premises demised under
such lease; the use and occupancy of each of the properties of the Company
complies in all material respects with all applicable codes and zoning
laws and regulations; the Company has no knowledge of any pending or
threatened condemnation or zoning change that will in any material respect
affect the size of, use of, improvements of, construction on, or access to
any of the properties of the Company; and the Company has no knowledge of
any pending or threatened proceeding or action that will in any manner
affect the size of, use of, improvements on, construction on, or access to
any of the properties of the Company.
(q) Title insurance in favor of the Company (or the subsidiary
which holds title to such property) is maintained with respect to each of
the properties owned by the Company in an amount at least equal to the
greater of (i) the cost of acquisition of such property or (ii) the cost
of construction by the Company 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 Company and its
subsidiaries taken as a whole. Title insurance in favor of the mortgagee
is maintained in an amount equal to the maximum commitment of the related
loan.
(r) The mortgages and deeds of trust encumbering the
properties and assets described in the Prospectus are not convertible nor
does the Company hold a participating interest therein.
(s) The Company has no 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 owned by it, 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
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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 Company and
its subsidiaries taken as a whole. In connection with the construction or
operation and use of the properties owned by the Company, the Company
represents that, as of the date of this 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, reuse, sale,
storage, handling, transport and disposal of any Hazardous Materials,
which failure would have a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business
prospects of the Company and its subsidiaries taken as a whole.
(t) Property and casualty insurance in favor of the Company is
maintained with respect to each of the properties owned by it in an amount
and on such terms as is reasonable and customary for businesses of this
type.
(u) There is no document or contract of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which is not described
or filed as required. All such contracts and all contracts relating to any
tax exempt financings to which the Company or any subsidiary is a party
have been duly authorized, executed and delivered by the Company or such
subsidiary, constitute valid and binding agreements of the Company or such
subsidiary and are enforceable against the Company or such subsidiary in
accordance with the terms thereof.
(v) No statement, representation, warranty or covenant made by
the Company in this Agreement or made in any certificate or document
required by this Agreement to be delivered to the Underwriters was or will
be, when made, inaccurate, untrue or incorrect.
(w) Neither the Company nor any of its trustees, officers or
controlling persons has taken, directly or indirectly, any action
intended, or which might reasonably be expected, to cause or result, under
the Act or otherwise, in, or which has constituted, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(x) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
(y) Neither the Company nor any of its subsidiaries is
involved in any material labor dispute nor, to the knowledge of the
Company, is any such dispute threatened.
(z) The Company and its subsidiaries own, or are licensed or
otherwise have the full exclusive right to use, all material trademarks
and trade names which are used in or necessary for the conduct of their
respective businesses as described in the Prospectus, including, without
limitation, the name "Gables" for use in connection with residential
communities. No claims have been asserted by any person to the use of
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<PAGE> 11
any such trademarks or trade names or challenging or questioning the
validity or effectiveness of any such trademark or trade name. The use, in
connection with the business and operations of the Company and its
subsidiaries of such trademarks and trade names does not, to the Company's
knowledge, infringe on the rights of any person.
(aa) Neither the Company nor any of its subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or any
subsidiary has made any payment of funds of the Company or any subsidiary
or received or retained any funds in violation of any law, rule or
regulation or of a character required to be disclosed in the Prospectus.
(bb) The REIT has continuously been organized and operated in
conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1986, as amended (the
"Code") for all taxable years commencing with its taxable year ended
December 31, 1994. The REIT has filed an election to be taxable as a real
estate investment trust for its taxable year ended December 31, 1994, and
such election has not been terminated. The REIT'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 REIT intends to continue to
operate in a manner which would permit it to qualify as a real estate
investment trust under the Code.
(cc) The Company caused its existing loan with the Teachers
Insurance and Annuity Association to become an unsecured facility in
accordance with the terms of the loan agreement.
4. AGREEMENTS OF THE REIT AND THE OPERATING PARTNERSHIP. The REIT
and the Operating Partnership agree with the Underwriters as follows:
(a) The Company will cause the Prospectus Supplement to be
filed as required by Section 3(a) hereof (but only if you have not
reasonably objected thereto by notice to the Company after having been
furnished a copy a reasonable time prior to filing) and will notify you
promptly of such filing. The Company will not, during such period as the
Prospectus is required by law to be delivered in connection with sales of
the Securities by any Underwriter or dealer (the "Prospectus Delivery
Period"), file any amendment or supplement to the Registration Statement
or the Prospectus, unless a copy thereof shall first have been submitted
to the Underwriters within a reasonable period of time prior to the filing
thereof and the Underwriters shall not have objected thereto in good
faith.
(b) The Company will notify the Underwriters promptly, and
will confirm such advice in writing, (1) when any post-effective amendment
to the Registration Statement becomes effective, (2) of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose or the threat thereof, (4) of the happening of any event during
the Prospectus Delivery Period that in the judgment of the Company makes
any statement made in the Registration Statement or the Prospectus untrue
or that requires the making of any changes in the Registration
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<PAGE> 12
Statement or the Prospectus in order to make the statements therein, in
light of the circumstances in which they are made, not misleading and (5)
of receipt by the Company or any representative or attorney of the Company
of any other communication from the Commission relating to the Company,
the Registration Statement, or the Prospectus. If at any time the
Commission shall issue any order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible moment.
(c) The Company will furnish to the Underwriters, upon request
and without charge, two signed copies of the Registration Statement and of
any post-effective amendment thereto, including financial statements and
schedules, and all exhibits thereto (including any document filed under
the Exchange Act and deemed to be incorporated by reference into the
Prospectus).
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) The Company will deliver to each Underwriter, without
charge, as many copies of the Prospectus containing the Prospectus
Supplement or any amendment or supplement thereto as such Underwriter may
reasonably request. The Company consents to the use of the Prospectus or
any amendment or supplement thereto by the Underwriters and by all dealers
to whom the Securities may be sold, both in connection with the offering
or sale of the Securities and for any period of time thereafter during
which the Prospectus is required by law to be delivered in connection
therewith. If during such period of time any event shall occur which in
the judgment of the Company or counsel to the Underwriters should be set
forth in the Prospectus in order to make any statement therein, in the
light of the circumstances under which it was made, not misleading, or if
it is necessary to supplement or amend the Prospectus to comply with law,
the Company will forthwith prepare and duly file with the Commission an
appropriate supplement or amendment thereto, and will deliver to each
Underwriter, without charge, such number of copies of such supplement or
amendment to the Prospectus as such Underwriter may reasonably request.
The Company shall not file any document under the Exchange Act before the
termination of the offering of the Securities by the Underwriters if such
document would be deemed to be incorporated by reference into the
Prospectus which is not approved by the Underwriters after reasonable
notice thereof.
(f) Prior to any public offering of the Securities the Company
will cooperate with the Underwriters and counsel to the Underwriters in
connection with the registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as the Underwriters may request including, without limitation,
jurisdictions outside of the United States; provided, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which
would subject it to general service of process in any jurisdiction where
it is not now so subject.
(g) During the period of five years commencing on the date
hereof, the Company will, upon request for such item by an Underwriter,
furnish to such Underwriter such financial statements and other periodic
and special reports as the Company may from time to time distribute
generally to the holders of any class of its
11
<PAGE> 13
capital stock, and will, upon request for such item by such Underwriter,
furnish to such Underwriter a copy of each annual or other report it shall
be required to file with the Commission.
(h) The Company will make generally available to holders of
its securities as soon as may be practicable but in no event later than
the last day of the fifteenth full calendar month following the end of the
Company's current fiscal quarter, an earnings statement (which need not be
audited but shall be in reasonable detail) for a period of 12 months
beginning after the date upon which the Prospectus Supplement is filed
pursuant to Rule 424 under the Act, and satisfying the provisions of
Section 11(a) of the Act (including Rule 158 of the Rules and
Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company
will pay, or reimburse if paid by the Underwriters, all fees, costs and
expenses incident to the performance of the obligations of the Company
under this Agreement, including but not limited to fees, costs and
expenses of or relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits to it, the Prospectus and any
amendment or supplement to the Registration Statement or the Prospectus,
(ii) the preparation and delivery of notes representing the Securities,
(iii) the printing of this Agreement and any Dealer Agreements, (iv)
furnishing (including costs of shipping and mailing) such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and
all amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of the Securities by the
Underwriters or by dealers to whom Securities may be sold, (v) filings
required to be made by or on behalf of the Company or the Underwriters,
including without limitation filings to be made by the Underwriters with
the NASD, and the fees and disbursements and other charges (other than
counsel for the Underwriters) in connection therewith and filings to be
made by the Company with the Commission, and the fees, disbursements and
other charges of counsel for the Company in connection therewith, (vi) the
registration or qualification of the Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions designated pursuant
to Section 4(f), including the fees, disbursements and other reasonable
charges of counsel to the Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (vii) counsel to the Company and any surveyors, engineers,
appraisers, photographers, accountants and other professionals engaged by
or on behalf of the Company, (viii) the Trustee, (ix) preparation of
slides, overheads and other presentation material to be used in any "road
show" or other presentation to potential investors and the hotel, travel
and other expenses of the Company's employees in connection with any such
"road show" or presentation, and (x) Moody's Investors Service, Inc.
("Moody's") and Standard and Poor's Rating Services ("S&P" and, together
with Moody's, the "Rating Agencies") in connection with the rating of the
Securities at the request of the Company; provided, however, that with
respect to any fees, disbursements and other charges of counsel for the
Underwriters in connection with the registration and qualification of the
Securities under Blue Sky laws and the preparation of Blue Sky memorandum,
the Company shall not be responsible for counsel fees, disbursements and
other charges in excess of $15,000. The filing fee paid to the NASD shall
not be considered to be "fees, disbursements or other charges" for the
purposes of this Section 4(i) and shall be paid by the Company.
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<PAGE> 14
(j) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (otherwise than pursuant to
Section 8 hereof) or if for any reason the Company shall be unable to
perform its obligations hereunder, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the fees,
disbursements and other charges of counsel to the Underwriters) reasonably
incurred by it in connection herewith.
(k) The Company will not at any time, directly or indirectly,
take any action intended, or which might reasonably be expected, to cause
or result in, or which will constitute, stabilization of the price of the
Securities to facilitate the sale or resale of any of the Securities.
(l) The Company will apply the net proceeds from the offering
and sale of the Securities to be sold by the Company in the manner set
forth in the Prospectus under "Use of Proceeds."
(m) Unless the Board of Directors of the REIT determines in
its reasonable business judgment that continued qualification as a "real
estate investment trust" under the Code is not in the Company's best
interest, the REIT will not terminate its election to be taxed as a "real
estate investment trust" under the Code, and the Company will use its best
efforts to, and will continue to meet the requirements to, so qualify as a
"real estate investment trust."
(n) The Company will take all commercially reasonable action
necessary to enable the Rating Agencies to provide their respective credit
ratings of the Company, the Operating Partnership or the Securities, as
the case may be.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. In addition to
the execution and delivery of the Price Determination Agreement, the obligations
of the Underwriters hereunder are subject to the following conditions:
(a) The Prospectus shall have been filed as required by
Section 3(a) and (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the
qualification or registration of the Securities under the securities or
Blue Sky laws of any jurisdiction shall be in effect and no proceeding for
such purpose shall be pending before or threatened or contemplated by the
Commission or the authorities of any such jurisdiction, (iii) any request
for additional information on the part of the staff of the Commission or
any such authorities shall have been complied with to the satisfaction of
the staff of the Commission or such authorities and (iv) after the date
hereof no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted
to the Underwriters and the Underwriters did not object thereto in good
faith.
(b) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (i) there shall
not have been a material adverse change in the general affairs, business,
business prospects, properties, management,
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<PAGE> 15
condition (financial or otherwise) or results of operations of Operating
Partnership and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, in each case other
than as set forth in or contemplated by the Registration Statement and the
Prospectus and (ii) neither the Company nor any of its subsidiaries shall
have sustained any material loss or interference with its business or
properties from fire, explosion, flood or other casualty, whether or not
covered by insurance, or from any labor dispute or any court or
legislative or other governmental action, order or decree, which is not
set forth in the Registration Statement and the Prospectus, if in the
judgment of the Underwriters any such development makes it impracticable
or inadvisable to consummate the sale and delivery of the Securities by
the Underwriters and at the public offering price.
(c) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have
been no litigation or other proceeding instituted against the Company or
any of its subsidiaries or any of their respective officers or directors
or trustees, as the case may be, in their capacities as such, before or by
any Federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in
which litigation or proceeding it is reasonably probable that an
unfavorable ruling, decision or finding would materially and adversely
affect the business, properties, business prospects, condition (financial
or otherwise) or results of operations of the Company and its subsidiaries
taken as a whole.
(d) Each of the representations and warranties of the REIT and
the Operating Partnership contained herein shall be true and correct in
all material respects at the Closing Date, as if made at the Closing Date,
and all covenants and agreements contained herein to be performed on the
part of the Company and all conditions contained herein to be fulfilled or
complied with by the Company at or prior to the Closing Date, shall have
been duly performed, fulfilled or complied with.
(e) Subsequent to the execution and delivery of this
Underwriting Agreement and prior to the Closing Date, there shall not have
occurred any downgrading in the rating accorded the Securities or any
other debt securities of the Company by any Rating Agency nor shall any
notice have been given to the Company of (i) any intended or potential
downgrading by any Rating Agency in such securities, or (ii) any review or
possible change by any Rating Agency that does not indicate a stable,
positive or improving rating accorded such securities.
(f) The Underwriters shall have received one or more opinions,
dated the Closing Date and satisfactory in form and substance to the
Underwriters' counsel, from Goodwin, Procter & Hoar LLP, counsel to the
Company, (i) to the effect set forth in EXHIBIT B and (ii) concerning the
qualification of the Company as a real estate investment trust under the
Code.
(g) The Underwriters shall have received an opinion, dated the
Closing Date, from O'Melveny & Myers LLP, Underwriters' counsel, with
respect to the Registration Statement, the Prospectus and this Agreement,
which opinion shall be satisfactory in all respects to the Underwriters.
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<PAGE> 16
(h) Concurrently with the execution and delivery of this
Agreement, the Accountants shall have furnished to the Underwriters a
letter, dated the date of its delivery, addressed to the Underwriters and
in form and substance satisfactory to the Underwriters, confirming that
they are independent accountants with respect to the Company as required
by the Act and the Rules and Regulations and with respect to the financial
and other statistical and numerical information contained in the
Registration Statement or incorporated by reference therein. At the
Closing Date, the Accountants shall have furnished to the Underwriters a
letter, dated the date of its delivery, which shall confirm, on the basis
of a review in accordance with the procedures set forth in the letter from
the Accountants, that nothing has come to their attention during the
period from the date of the letter referred to in the prior sentence to a
date (specified in the letter) not more than three days prior to the
Closing Date which would require any change in their letter dated the date
hereof if it were required to be dated and delivered at the Closing Date.
(i) At the Closing Date, there shall be furnished to the
Underwriters an accurate certificate, dated the date of its delivery,
signed by each of the Chief Executive Officer and the Chief Financial
Officer of each of (a) Gables GP on behalf of the Operating Partnership
and (b) the REIT, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) The Prospectus has been filed as required by Section 3(a)
and no stop order suspending the effectiveness of the Registration
Statement has been issued and, to the best of their knowledge,
information and belief, no proceeding for such purpose is pending
before or threatened or contemplated by the Commission.
(ii) No order suspending the effectiveness of the Registration
Statement or the qualification or registration of the Securities
under the securities or Blue Sky laws of any jurisdiction is in
effect and, to the best of their knowledge, information and belief,
no proceeding for such purpose is pending before or threatened or
contemplated by the Commission or the authorities of any such
jurisdiction.
(iii) Any request for additional information on the part of
the staff of the Commission or any such authorities has been
complied with to the satisfaction of the staff of the Commission or
such authorities.
(iv) Each signer of such certificate has carefully examined
the Registration Statement and the Prospectus (including any
documents filed under the Exchange Act and deemed to be incorporated
by reference into the Prospectus) and (A) as of the date of such
certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not untrue or misleading and (B) no event has occurred as a result
of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein not untrue or misleading in any
material respect and there has been no document 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 into the Prospectus that has not been so filed.
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<PAGE> 17
(v) Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at
the time such certificate is delivered, true and correct in all
material respects.
(vi) Each of the covenants required to be performed by the
Company herein on or prior to the delivery of such certificate has
been duly, timely and fully performed and each condition herein
required to be complied with by the Company on or prior to the date
of such certificate has been duly, timely and fully complied with.
(vii) Since the execution and delivery of the Underwriting
Agreement and prior to the Closing Date, there has not occurred any
downgrading in the rating accorded the Securities or any other debt
securities of the Company by any Rating Agency nor has any notice
been given to the Company of (A) any intended or potential
downgrading by any Rating Agency in such securities, or (B) any
review or possible change by any Rating Agency that does not
indicate a stable, positive or improving rating accorded such
securities.
(j) The Securities shall be qualified for sale in such states
as the Underwriters may reasonably request, each such qualification shall
be in effect and not subject to any stop order or other proceeding on the
Closing Date.
(k) Prior to the Closing Date, the Securities shall have been
duly authorized for listing by the New York Stock Exchange upon official
notice of issuance.
(l) The Company shall have furnished to the Underwriters such
certificates, including, without limitation, one or more certificates of
the Secretary of the REIT and the Secretary of Gables GP on behalf of the
Operating Partnership, in addition to those otherwise specifically
mentioned herein, as the Underwriters may have reasonably requested as to
the accuracy and completeness at the Closing Date any statement in the
Registration Statement or the Prospectus or any documents filed under the
Exchange Act and deemed to be incorporated by reference into the
Prospectus, as to the accuracy at the Closing Date of the representations
and warranties of the Company herein as to the performance by the Company
of its obligations hereunder or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the Underwriters.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Operating Partnership and the REIT will indemnify and
hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 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 any
Underwriter, or any such person may become subject under the Act, the
Exchange Act or
16
<PAGE> 18
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 the Company or based on written information
furnished by or on behalf of the Company and filed in any jurisdiction in
either case in order to qualify the Securities 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 any
Underwriter in connection with, or relating in any manner to, the
Securities 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 Company 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 such Underwriter through its gross negligence or willful
misconduct); provided, that the Company will not be liable to the extent
that such loss, claim, liability, expense or damage arises from the sale
of the Securities in the public offering to any person by any Underwriter
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 the Underwriter furnished in writing to the
Company by such Underwriter expressly for inclusion in the Registration
Statement, any preliminary prospectus or the Prospectus. This indemnity
agreement will be in addition to any liability that the Operating
Partnership or the REIT might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Operating Partnership, the REIT, each person, if any, who controls the
Operating Partnership or the REIT within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, each trustee of the REIT and each
officer of the REIT or the Operating Partnership who signs the
Registration Statement to the same extent as the foregoing indemnity from
the Operating Partnership and the REIT to each Underwriter, 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 any Underwriter furnished in writing to the
Company by such Underwriter expressly for use in the Registration
Statement or the Prospectus. This indemnity will be in addition to any
liability that each Underwriter might otherwise have; provided, however,
that in no case shall any Underwriter be liable or responsible for any
amount in excess of the underwriting discounts and commissions received by
such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 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
6, 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
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<PAGE> 19
party under the foregoing provisions of this Section 6 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 indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) 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, (3) 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
(4) 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 one 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 6 (whether
or not any indemnified party is a party thereto), unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising or that may arise out of such
claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms
but for any reason is held to be unavailable from the Company or the
Underwriter, the Company and the Underwriters 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 Company from persons other than the Underwriters, such as persons who
control the Company within the meaning of the Act,
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<PAGE> 20
officers of the Company who signed the Registration Statement and trustees
of the Company, who also may be liable for contribution) to which the
Company and any one or more of the Underwriters may be subject in such
proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the other.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the
table on the cover page of the Prospectus. 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 Company, on the one
hand, and the Underwriters, 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 Company or
the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement
or omission. The Company and the Underwriters agree that it would not be
just and equitable if contributions pursuant to this Section 6(d) were to
be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purposes) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as
a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 6(d) shall be deemed to
include, for purpose of this Section 6(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 6(d), no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and
commissions received by it and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) will be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
as provided in this Section 6(d) are several in proportion to their
respective underwriting obligations and not joint. For purposes of this
Section 6(d), any person who controls a party to this Agreement within the
meaning of the Act will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company,
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 6(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 6(d). 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 6 and the representations and warranties of the Company contained
in this Agreement shall
19
<PAGE> 21
remain operative and in full force and effect regardless of (i) any
investigation made by or on behalf of the Underwriters, (ii) acceptance of
the Securities and payment therefor or (iii) any termination of this
Agreement.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, agreements and covenants of the Company herein or
in certificates delivered pursuant hereto, and the agreements of the
Underwriters contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling persons, or the Company or any of its officers,
trustees, or any controlling persons, and shall survive (i) termination of this
Agreement and (ii) delivery of and payment for the Securities hereunder.
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take up
and pay for the aggregate principal amount of Securities agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such
Securities in accordance with the terms hereof, and the aggregate
principal amount of Securities not purchased does not aggregate more than
10% of the total aggregate principal amount of Securities that the
Underwriters are obligated to purchase hereunder at the Closing Date, the
remaining Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder as set
forth in SCHEDULE 1 hereto except as may otherwise be determined by you)
the Securities that the withdrawing or defaulting Underwriter or
Underwriters agreed but failed to purchase.
(b) If any Underwriter or Underwriters shall fail to take up
and pay for the aggregate principal amount of Securities agreed by such
Underwriter or Underwriters to be purchased hereunder, upon tender of such
Securities in accordance with the terms hereof, and the principal amount
of Securities not purchased aggregates more than 10% of the total
principal amount of Securities that the Underwriters are obligated to
purchase hereunder at the Closing Date, and arrangements satisfactory to
you and the Company for the purchase of such Securities by other persons
are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination the Company shall not be under any
liability to any Underwriter with respect to Securities not purchased by
reason of such termination (except to the extent provided in Section 4(j),
regarding payment of expenses, and Section 6, regarding indemnification
and contribution, hereof) nor shall any Underwriter (other than an
Underwriter who shall have failed, otherwise than for some reason
permitted under this Agreement, to purchase the amount of Securities
agreed by such Underwriter to be purchased hereunder) be under any
liability to the Company with respect to such Securities (except to the
extent provided in Section 6 hereof).
9. TERMINATION. The obligations of the Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date, by
notice to the Company from the Underwriters, without liability on the part of
the Underwriters to the Company, if, prior to delivery and payment for the
Securities, in the sole judgment of the Underwriters, (i) trading in any of the
equity securities of the Company shall have been suspended by the Commission, by
an exchange that lists such equity securities or by the National Association of
Securities Dealers Automated Quotation National Market System, (ii) trading in
securities generally on the New York
20
<PAGE> 22
Stock Exchange shall have been suspended or limited or minimum or maximum prices
shall have been generally established on such exchange, 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 any court or other governmental authority, (iii) a
general banking moratorium shall have been declared by either Federal or New
York State authorities or (iv) 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 impracticable or inadvisable to market the Securities on the
terms and in the manner contemplated by the Prospectus.
10. NOTICES. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company, at the office of the Company, 2859 Paces
Ferry Road, Atlanta, Georgia 30339, Attention: Marcus E. Bromley, or (b) if to
the Underwriters, to the offices of PaineWebber Incorporated, 1285 Avenue of the
Americas, New York, New York 10019, Attention: Corporate Real Estate Department.
Any such notice shall be effective only upon receipt. Any notice under Section
10 hereof may be made by telex, facsimile or telephone, but if so made shall be
subsequently confirmed in writing.
11. PARTIES. This Agreement has been and is made solely for the
benefit of the Underwriters, the Operating Partnership and the REIT and of the
controlling persons, directors, trustees, and officers referred to in Section 6,
and their respective successors and assigns, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" as used in this Agreement shall not include a purchaser, as such
purchaser, of Securities from the Underwriters.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
13. COUNTERPARTS. This Agreement may be signed in two or more
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
14. SEVERABILITY. In case any provision in this 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.
15. WAIVER OF TRIAL BY JURY. The Operating Partnership, the REIT and
each of the Underwriters 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
Agreement or the transactions contemplated hereby.
[Signature page follows.]
21
<PAGE> 23
Please confirm that the foregoing correctly sets forth the agreement
among the REIT, the Operating Partnership and the Underwriters.
Very truly yours,
GABLES REALTY LIMITED PARTNERSHIP
By: GABLES GP, INC.,
General Partner
By: /s/ Marvin R. Banks, Jr.
--------------------------------------
Marvin R. Banks, Jr.,
Chief Financial Officer
GABLES RESIDENTIAL TRUST
By: /s/ Marvin R. Banks, Jr.
--------------------------------------
Marvin R. Banks, Jr.,
Chief Financial Officer
Confirmed as of the date first above mentioned:
PAINEWEBBER INCORPORATED
LEHMAN BROTHERS INC.
By: PAINEWEBBER INCORPORATED
By: /s/ Frederick T. Caven, Jr.
--------------------------------------
Frederick T. Caven, Jr.
Managing Director
S - 1
<PAGE> 24
SCHEDULE 1
UNDERWRITING COMMITMENTS
<TABLE>
<CAPTION>
Aggregate Principal
Amount of Securities
Underwriter to be Purchased
----------------------------------------------- ---------------------
<S> <C>
PaineWebber Incorporated....................... $60,000,000
Lehman Brothers Inc............................ 40,000,000
---------------------
Total.................................... $100,000,000
=====================
</TABLE>
Schedule 1 - Page 1
<PAGE> 25
SCHEDULE 2
DESCRIPTION OF SECURITIES AND
PRICING INFORMATION
TITLE OF SECURITIES: 6.80% Senior Notes due 2005
AGGREGATE PRINCIPAL AMOUNT: $100,000,000
MATURITY DATE: March 15, 2005
INTEREST RATE: 6.80% per annum from March 15, 1998
COUPON PAYMENT DATES: March 15 and September 15
PRICE TO PUBLIC: 99.751% plus accrued interest from March
15, 1998 to the Delivery Date
UNDERWRITING DISCOUNT: 0.625%
NET PRICE TO OPERATING
PARTNERSHIP: 99.126% plus accrued interest from
March 15, 1998 to the Delivery Date
ACCRUED INTEREST FROM
MARCH 15, 1998 TO THE
DELIVERY DATE: $151,111.11
GROSS PROCEEDS TO BE PAID
TO THE OPERATING PARTNERSHIP: $99,277,111.11
DELIVERY DATE AND TIME: March 23, 1998, 10:00 a.m. (New York City
time)
Schedule 2 - Page 1
<PAGE> 26
SCHEDULE 3
SUBSIDIARIES
Gables-Tennessee Properties, a Tennessee general partnership
Gables GP, Inc., a Texas corporation
Gables East Construction, Inc., a Georgia corporation
East Apartment Management, Inc., a Georgia corporation
Gables Central Construction, Inc., a Texas corporation
Central Apartment Management, Inc., a Texas corporation
Alpha Insurance Agency, Inc., a Georgia corporation
Pin Oak Green, a Texas general partnership
Pin Oak Park Apartments, a Texas general partnership
Candlewood Gen Par, Inc., a Georgia corporation
Candlewood-Indian Creek Limited Partnership, a Georgia limited partnership
GRT Villas Gen Par, Inc. (F.K.A. Candle Creek, Inc.), a Georgia corporation
GRT Villas Limited Partnership, a Texas limited partnership
Schedule 3 - Page 1
<PAGE> 27
EXHIBIT A
INFORMATION IN REGISTRATION STATEMENT AND PROSPECTUS
FURNISHED BY THE UNDERWRITERS
The following information appearing in the Prospectus has been
furnished by the Underwriters expressly for use in the preparation of the
Prospectus:
1. The following information contained in the Prospectus Supplement
under the heading "Underwriting":
a. The allocation of securities between the Underwriters in
the first paragraph; and
b. The information in the second paragraph.
Exhibit A - Page 1
<PAGE> 28
EXHIBIT B
OPINION OF COMPANY COUNSEL
1. The Registration Statement has been declared effective under the 1933
Act. The Prospectus has been filed with the Commission pursuant to Rule 424
under the 1933 Act. To the best of our knowledge (based solely on an oral
representation of a member of the Commission's staff), no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act and no proceeding for that purpose has been instituted or threatened by the
Commission.
2. 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
as to form in all material respects with the requirements of the 1933 Act and
the rules and regulations thereunder (other than (i) the financial statements
and schedules and other financial and statistical information and data included
therein or omitted therefrom, and (ii) any documents incorporated by reference
into the Registration Statement, as to which we express no opinion) it being
understood that, in passing upon compliance as to the form of the Registration
Statement, we assume that the statements made therein are correct and complete.
3. The descriptions in the Registration Statement and the Prospectus
(other than the documents incorporated by reference and other than with respect
to the matters in the Prospectus under the captions "Federal Income Tax
Considerations," for which reference is made to our separate opinion delivered
to you this day) of statutes are accurate in all material respects and fairly
present the information required to be disclosed therein. We do 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 to be filed as exhibits to the Registration Statement that are not
so described or filed.
4. Neither the REIT nor the Operating Partnership (after giving effect to
the sale of the Securities) is required to be registered under the Investment
Company Act of 1940, as amended.
5. The REIT has been duly organized and is validly existing as a real
estate investment trust in good standing under the laws of the State of
Maryland. Each of the REIT and the Operating Partnership has full power and
authority to conduct its business as described in the Registration Statement and
Prospectus.
6. The Operating Partnership has been duly formed and is validly existing
as a limited partnership in good standing under the laws of the State of
Delaware. All of the issued and outstanding partnership interests of the
Operating Partnership have been duly authorized and are validly issued.
7. Each Subsidiary has been duly organized and, except for
Gables-Tennessee Properties, Pin Oak Park Apartments and Pin Oak Green, which
are general partnerships, is
Exhibit B - Page 1
<PAGE> 29
validly existing as a limited partnership or corporation, as the case may be, in
good standing under the laws of its state of organization or formation as set
forth on EXHIBIT 1 hereto.
8. Except as set forth in EXHIBIT 2 hereto, the REIT, directly or through
Subsidiaries, is the sole record owner of all of the capital stock or
partnership interests, as the case may be, of each Subsidiary.
9. Each of the Subsidiaries has corporate or partnership power, as the
case may be, and authority to conduct its business as described in the
Prospectus.
10. Each of the Operating Partnership and the Subsidiaries, respectively,
is duly qualified or registered as a foreign corporation or foreign partnership,
as the case may be, to transact business and is in good standing in each
jurisdiction listed in EXHIBIT 1 hereto.
11. All of the outstanding shares of the Company identified in the
Prospectus have been duly authorized and are validly issued, fully paid and
nonassessable and conform to the description thereof in the Prospectus.
12. (i) The Securities have been duly authorized, executed and delivered
by the Operating Partnership and, when duly authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement,
will constitute valid and binding obligations of the Company entitled to
the benefits provided by the Indenture and enforceable against the
Operating Partnership in accordance with their terms;
(ii) the Indenture has been duly authorized, executed and delivered
by the Operating Partnership and constitutes a valid and binding agreement
of the Operating Partnership enforceable against the Operating Partnership
in accordance with its terms;
(iii) the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) the Indenture and the Securities conform in all material
respects to the descriptions thereof in the Registration Statement and the
Prospectus.
13. The REIT and the Operating Partnership have full power and authority
to enter into the Underwriting Agreement, and the Underwriting Agreement has
been duly authorized, executed and delivered by each of the REIT and the
Operating Partnership. To our knowledge, the issuance and sale of the Securities
to the Underwriters on the terms contemplated in the Underwriting Agreement will
not result in the creation or imposition of any lien, charge or encumbrance upon
any of the assets of the REIT, the Operating Partnership, or any of the
Subsidiaries, pursuant to the terms or provisions of, or result in a breach or
violation of any of the terms or provisions of, or constitute a default or
result in the acceleration of any obligation under, (i) the Declaration of Trust
or Bylaws of the REIT, (ii) the articles or certificate of incorporation,
partnership agreement or by-laws of any of the Subsidiaries, (iii) the limited
partnership agreement of the Operating Partnership, (iv) any agreement or
instrument filed as an exhibit to the Registration Statement and incorporated
therein by reference to which the REIT, the Operating Partnership or any of the
Subsidiaries is a party or by or pursuant to which any of them or their
respective properties is bound, affected or financed, or (v) any statute, rule
or regulation or judgment, ruling, decree or order, known to us, of any court or
other governmental agency or body applicable to the business
Exhibit B - Page 2
<PAGE> 30
or properties of the REIT, the Operating Partnership or any of the Subsidiaries
(except that (i) we express no opinion as to the securities or Blue Sky laws of
any jurisdiction other than the United States and (ii) insofar as compliance
with the federal securities laws of the United States is concerned, our opinions
are limited to numbered paragraphs (1), (2), (3), (4) and (14) and (iii) our
opinion in this paragraph (13) should not be interpreted to address the
disclosure requirements of the securities laws, for which we make reference to
our statements following numbered paragraph (14) below), where such violation or
default, individually or in the aggregate, might have a material adverse effect
on the business, properties, business prospects, condition (financial or
otherwise) or results of operations of the REIT, the Operating Partnership and
the Subsidiaries taken as a whole.
14. To our knowledge, no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required in connection
with the issuance or sale of the Securities by the Company, except (i) such as
have been obtained under the 1933 Act or the Securities Exchange Act of 1934, as
amended, or (ii) such as may be required under state securities laws or the
by-laws or rules of the NASD in connection with the purchase and distribution of
the Securities by the Underwriters.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such that we are not passing upon and do not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and we make no representation that we
have independently verified the accuracy, completeness or fairness of such
statements. Without limiting the foregoing, we assume no responsibility for, and
have not independently verified, the accuracy, completeness or fairness of the
financial statements or notes thereto, financial schedules and other financial
and statistical data incorporated by reference into the Registration Statement,
and we have not examined the accounting, financial or statistical records from
which such statements and notes, schedules and data are derived. However, in the
course of our acting as counsel to the Company in connection with the
preparation of the Registration Statement and the Prospectus and the public
offering of the Securities we participated in conferences and telephone
conversations with representatives of the Company, Arthur Andersen LLP,
accountants for the Company, your representatives and representatives of
O'Melveny & Myers LLP, your counsel, during which conferences and conversations
the contents of the Registration Statement and the Prospectus and related
matters were discussed. In addition, we reviewed certain documents made
available to us by the Company or otherwise in our possession.
Based on our participation in the above-mentioned conferences and
conversations, our review of the documents described above and our understanding
of applicable law, we advise you that:
(a) No facts have come to our attention which cause us to believe that
the Registration Statement (excluding the financial statements and
notes thereto, financial schedules and other financial or
statistical information and data included or incorporated by
reference therein or omitted therefrom and the Trustee's Statement
of Eligibility and Qualification on Form T-1 (the "T-1")
incorporated by reference therein, as to which we make no
statement), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; and
Exhibit B - Page 3
<PAGE> 31
(b) No facts have come to our attention which cause us to believe that
the Prospectus (excluding the financial statements and notes
thereto, financial schedules and other financial or statistical
information and data included or incorporated by reference therein
or omitted therefrom and the T-1, as to which we make no statement),
as of its date or the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
Exhibit B - Page 4
<PAGE> 1
Exhibit 4.1
- --------------------------------------------------------------------------------
GABLES REALTY LIMITED PARTNERSHIP
TO
FIRST UNION NATIONAL BANK
Trustee
--------------------
Indenture
Dated as of March 23, 1998
--------------------
Senior Debt Securities
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
Page
RECITALS OF THE PARTNERSHIP..................................................1
ARTICLE ONE - DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION........1
SECTION 101. Definitions..............................................1
SECTION 102. Compliance Certificates and Opinions....................10
SECTION 103. Form of Documents Delivered to Trustee..................11
SECTION 104. Acts of Holders.........................................11
SECTION 105. Notices, etc., to Trustee and Partnership...............13
SECTION 106. Notice to Holders: Waiver...............................14
SECTION 107. Counterparts; Effect of Headings and Table of Contents..15
SECTION 108. Successors and Assigns..................................15
SECTION 109. Severability Clause.....................................15
SECTION 110. Benefits of Indenture...................................15
SECTION 111. Governing Law...........................................15
SECTION 112. Legal Holidays..........................................15
SECTION 113. Non-Recourse............................................16
SECTION 114. Conflict with Trust Indenture Act.......................16
ARTICLE TWO - SECURITIES FORMS..............................................16
SECTION 201. Forms of Securities.....................................16
SECTION 202. Form of Trustee's Certificate of Authentication.........17
SECTION 203. Securities Issuable in Global Form......................17
ARTICLE THREE - THE SECURITIES..............................................18
SECTION 301. Amount Unlimited; Issuable in Series....................18
SECTION 302. Denominations...........................................22
SECTION 303. Execution, Authentication, Delivery and Dating..........22
SECTION 304. Temporary Securities....................................25
SECTION 305. Registration, Registration of Transfer and Exchange.....27
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities........31
SECTION 307. Payment of Interest; Interest Rights Preserved..........32
SECTION 308. Persons Deemed Owners...................................34
SECTION 309. Cancellation............................................35
SECTION 310. Computation of Interest.................................35
ARTICLE FOUR - SATISFACTION AND DISCHARGE...................................35
SECTION 401. Satisfaction and Discharge of Indenture.................35
(i)
<PAGE> 3
SECTION 402. Application of Trust Funds..............................37
ARTICLE FIVE - REMEDIES.....................................................37
SECTION 501. Events of Default.......................................37
SECTION 502. Acceleration of Maturity; Rescission and Annulment......39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.........................................................40
SECTION 504. Trustee May File Proofs of Claim........................41
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons...........................................42
SECTION 506. Application of Money Collected..........................42
SECTION 507. Limitation on Suits.....................................43
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts................43
SECTION 509. Restoration of Rights and Remedies......................44
SECTION 510. Rights and Remedies Cumulative..........................44
SECTION 511. Delay or Omission Not Waiver............................44
SECTION 512. Control by Holders of Securities........................44
SECTION 513. Waiver of Past Defaults.................................45
SECTION 514. Waiver of Usury, Stay or Extension Laws.................45
SECTION 515. Undertaking for Costs...................................45
ARTICLE SIX - THE TRUSTEE...................................................46
SECTION 601. Notice of Defaults......................................46
SECTION 602. Certain Rights of Trustee...............................46
SECTION 603. Not Responsible for Recitals or Issuance of Securities..48
SECTION 604. May Hold Securities.....................................48
SECTION 605. Money Held in Trust.....................................48
SECTION 606. Compensation and Reimbursement..........................48
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests.......................................................49
SECTION 608. Resignation and Removal; Appointment of Successor.......49
SECTION 609. Acceptance of Appointment by Successor..................51
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business........................................................52
SECTION 611. Appointment of Authenticating Agent.....................52
ARTICLE SEVEN - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND PARTNERSHIP ......54
SECTION 701. Disclosure of Names and Addresses of Holders............54
SECTION 702. Reports by Trustee......................................54
SECTION 703. Reports by Partnership..................................55
SECTION 704. Partnership to Furnish Trustee Names and Addresses of
Holders.........................................................55
ARTICLE EIGHT - CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE............56
(ii)
<PAGE> 4
SECTION 801. Consolidations and Mergers of Partnership and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions..56
SECTION 802. Rights and Duties of Successor Entity...................56
SECTION 803. Officers' Certificate and Opinion of Counsel............57
ARTICLE NINE - SUPPLEMENTAL INDENTURES......................................57
SECTION 901. Supplemental Indentures Without Consent of Holders......57
SECTION 902. Supplemental Indentures with Consent of Holders.........59
SECTION 903. Execution of Supplemental Indentures....................60
SECTION 904. Effect of Supplemental Indentures.......................60
SECTION 905. Conformity with Trust Indenture Act.....................60
SECTION 906. Reference in Securities to Supplemental Indentures......60
ARTICLE TEN - COVENANTS.....................................................60
SECTION 1001. Payment of Principal, Premium, if any; Interest and
Additional Amounts..............................................60
SECTION 1002. Maintenance of Office or Agency........................61
SECTION 1003. Money for Securities Payments to Be Held in Trust......62
SECTION 1004. Existence..............................................64
SECTION 1005. Maintenance of Properties..............................64
SECTION 1006. Insurance..............................................64
SECTION 1007. Payment of Taxes and Other Claims......................64
SECTION 1008. Statement as to Compliance.............................65
SECTION 1009. Additional Amounts.....................................65
SECTION 1010. Waiver of Certain Covenants............................66
ARTICLE ELEVEN - REDEMPTION OF SECURITIES...................................66
SECTION 1101. Applicability of Article...............................66
SECTION 1102. Election to Redeem; Notice to Trustee..................66
SECTION 1103. Selection by Trustee of Securities to Be Redeemed......66
SECTION 1104. Notice of Redemption...................................67
SECTION 1105. Deposit of Redemption Price............................68
SECTION 1106. Securities Payable on Redemption Date..................69
SECTION 1107. Securities Redeemed in Part............................70
ARTICLE TWELVE - SINKING FUNDS..............................................70
SECTION 1201. Applicability of Article...............................70
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..70
SECTION 1203. Redemption of Securities for Sinking Fund..............71
ARTICLE THIRTEEN - REPAYMENT AT THE OPTION OF HOLDERS.......................71
SECTION 1301. Applicability of Article...............................71
SECTION 1302. Repayment of Securities................................71
(iii)
<PAGE> 5
SECTION 1303. Exercise of Option.....................................72
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.........................................................72
SECTION 1305. Securities Repaid in Part..............................73
ARTICLE FOURTEEN - DEFEASANCE AND COVENANT DEFEASANCE.......................74
SECTION 1401. Applicability of Article: Partnership's Option to Effect
Defeasance or Covenant Defeasance...............................74
SECTION 1402. Defeasance and Discharge...............................74
SECTION 1403. Covenant Defeasance....................................74
SECTION 1404. Conditions to Defeasance or Covenant Defeasance........75
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions...........................77
ARTICLE FIFTEEN - MEETINGS OF HOLDERS OF SECURITIES.........................78
SECTION 1501. Purposes for Which Meetings May Be Called..............78
SECTION 1502. Call, Notice and Place of Meetings.....................78
SECTION 1503. Persons Entitled to Vote at Meetings...................78
SECTION 1504. Quorum; Action.........................................79
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.....................................................80
SECTION 1506. Counting Votes and Recording Action of Meetings........81
SIGNATURES AND SEALS........................................................82
ACKNOWLEDGMENT..............................................................83
EXHIBIT A
FORM OF REDEEMABLE OR NON-REDEEMABLE SENIOR SECURITY.................A-1
EXHIBIT B
FORMS OF CERTIFICATION...............................................B-1
(iv)
<PAGE> 6
GABLES REALTY LIMITED PARTNERSHIP
Reconciliation and tie between Trust Indenture Act of 1939 (the "1939
Act") and Indenture, dated as of March 23, 1998.
Trust Indenture
Act Section Indenture Section
ss. 310(a)(1)....................................... 607
(a)(2)....................................... 607
(b)....................................... 607, 608
ss. 312(c)....................................... 701
ss. 313(a)....................................... 702
(c)....................................... 702
ss. 314(a)....................................... 703
(a)(4)....................................... 1008
(c)(1)....................................... 102
(c)(2)....................................... 102
(e)....................................... 102
ss. 315(b)....................................... 601
ss. 316(a) (last sentence)...................... 101 ("Outstanding")
(a)(1)(A)....................................... 502, 512
(a)(1)(B)....................................... 513
(b)....................................... 508
ss. 317(a)(1)....................................... 503
(a)(2)....................................... 504
ss. 318(a)....................................... 111
(c)....................................... 111
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act, which
provides that the provisions of Sections 310 to and including 317 of the 1939
Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
(v)
<PAGE> 7
INDENTURE, dated as of March 23, 1998, between GABLES REALTY LIMITED
PARTNERSHIP, a limited partnership organized under the laws of the State of
Delaware (hereinafter called the "Partnership"), having its principal office at
2859 Paces Ferry Road, Overlook, III, Suite 1450, Atlanta, Georgia 30339, and
First Union National Bank, a national banking association, as Trustee hereunder
(hereinafter called the "Trustee"), having its Corporate Trust Office at 999
Peachtree Street, N.E., Atlanta, Georgia 30309.
RECITALS OF THE PARTNERSHIP
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 unsubordinated 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, 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;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
<PAGE> 8
(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.
"ADDITIONAL AMOUNTS" means any additional amounts which are required by a
Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Partnership in respect of certain taxes imposed on
certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"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.
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<PAGE> 9
"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 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" means, (i) with respect to any corporation, any and all shares
of stock issued by that corporation and (ii) with respect to any other person,
any partnership interest, joint venture interest, limited liability company
member interest or other form of equity sharing or participation interest, as
applicable.
"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 Gables GP, Inc., a Texas corporation and the general
partner of the Partnership, or any successor corporation thereto.
"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 999 Peachtree Street, N.E.,
Atlanta, Georgia 30309.
"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.
3
<PAGE> 10
"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 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 depositary for such
series, or its nominee, in accordance with Section 305, and bearing the legend
prescribed in Section 203.
"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
4
<PAGE> 11
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person in whose
name a Security is registered in the Security Register and, in the case of a
Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed or as it may 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, and, when used with respect to a Security which provides
for the payment of Additional Amounts pursuant to Section 1009, includes such
Additional Amounts.
"INTEREST PAYMENT DATE," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"MATURITY," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman of the
Board of Directors, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the
5
<PAGE> 12
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 cancelled 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;
(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
6
<PAGE> 13
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 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.
"PARTNERSHIP" means the Person named as the "Partnership" in the first
paragraph of this Indenture until a successor limited partnership or corporation
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Partnership" shall mean such successor limited partnership or
corporation.
"PARTNERSHIP REQUEST" and "PARTNERSHIP ORDER" mean, respectively, a
written request or order signed in the name of the Partnership, by the Chairman
of the Board, President or a Vice President, Treasurer or an Assistant
Treasurer, and Secretary or an 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, 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.
7
<PAGE> 14
"PLACE OF PAYMENT," when used with respect to the Securities of or within
any series, means the place or places where the principal of (and premium, if
any) and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as 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.
"REPAYMENT DATE" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above
8
<PAGE> 15
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) 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" with respect to any person, means (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of Capital entitled (without regard to the occurrence of any contingency)
to vote in the election of directors, managers or trustees thereof is at the
time owned or controlled, directly or indirectly, by such person, by one or more
Subsidiaries of such person or by such person and one or more Subsidiaries of
such person and (ii) any partnership (a) the sole general partner or the
managing general partner of which is such person or a Subsidiary of such person
or (b) the only general partners of which are such person and/or one or more
Subsidiaries of such person (or any combination thereof.)
"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
9
<PAGE> 16
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;
(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;
10
<PAGE> 17
(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 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
11
<PAGE> 18
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 depositary'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
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit 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.
(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,
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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 999 Peachtree Street, N.E., Atlanta,
Georgia 30309; 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, c/o Gables Residential Trust, 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
(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
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courier; if to the Trustee at facsimile number (404) 827-7305; and if to
the Partnership at facsimile number (770) 438-5559.
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.
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.
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Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
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 any
Additional Amounts or principal (and premium, 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 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
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Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity, as the case may be.
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
Additional Amounts, if any, interest or any other amounts due, or claimed to be
due, on any Security issued hereunder), or for any claim based thereon or
otherwise in respect thereof, shall be had (i) against the Company or any other
past, present or future partner in the Partnership, (ii) against any other
Person which owns an interest, directly or indirectly, in any partner of the
Partnership or (iii) against 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, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders 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 Partnership may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities may be
listed, or to conform to usage.
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Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or 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.
[NAME OF TRUSTEE]
as Trustee
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 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 such manner or by such Person or Persons as shall be
specified therein or in the Partnership Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Global
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Partnership Order.
If a Partnership Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Partnership 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.
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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 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 Depositary or a nominee of a Depositary. This Security is
exchangeable for Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and 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 its nominee to a successor
Depositary or its nominee."
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
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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 date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities of the
series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date
shall be determined, and the basis upon which interest shall be calculated
if other than that of a 360-day year of twelve 30-day months;
(5) the place or places where the principal of (and premium,
if any), interest, if any, on, and Additional Amounts, if any, payable in
respect of, Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer
or exchange and notices or demands to or upon the Partnership in respect
of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at the
option of the Partnership, if the Partnership is to have the option;
(7) the obligation, if any, of the Partnership to redeem,
repay or purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
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(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Securities of the series
shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies
in which payment of the principal of (and premium, if any) and interest or
Additional Amounts, if any, on the Securities of the series shall be
payable or in which the Securities of the series shall be denominated and
the manner of determining the equivalent thereof in Dollars for purposes
of the definition of "Outstanding" in Section 101;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the series may
be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium, if any) or
interest or Additional Amounts, if any, 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;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events as
may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Partnership with respect to
Securities of the series, whether
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<PAGE> 27
or not such Events of Default or covenants are consistent with the Events
of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section
305, and, if Registered Securities of the series are to be issuable as a
Global Security, the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series
and any temporary Global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary Global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
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(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Partnership will
pay Additional Amounts as contemplated by Section 1009 on the Securities
of the series to any Holder who is not a United States person (including
any modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Partnership will
have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option); and
(23) 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 Partnership by the Chairman of the Board and the President or one of the
Vice Presidents of the Company, as general partner of the Partnership, 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.
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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.
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 Partnership Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Partnership
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 delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent Global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series shall
so permit, such Partnership Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as 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;
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(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the 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 Partnership 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)
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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 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. Pending the preparation of definitive
Securities of any series, the Partnership may execute, and upon Partnership
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with 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.
Unless otherwise provided in or pursuant to a Board Resolution, the
following provisions of this Section 304 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 depositary or common depositary (the "Common Depositary"), for the
benefit of Euroclear and CEDEL, for credit to the respective accounts of the
beneficial owners of such Securities (or to such other accounts as they may
direct).
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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 Depositary 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 Depositary, such temporary
Global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
Global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and PROVIDED
FURTHER that definitive Bearer Securities shall be delivered in exchange for a
portion of a temporary Global Security only in compliance with the requirements
of Section 303.
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.
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
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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.
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.
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
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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, 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 depositary 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
depositary 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 depositary with respect to such Global Security or
Securities. If (x) a successor depositary for such Global Security or Securities
is not appointed by the 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 depositary 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 depositary as shall be specified in the
Partnership 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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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, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
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 Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of 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 on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the 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
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before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security
shall be surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed date
of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such
coupon when due in accordance with the provisions of this Indenture.
(2) The 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, 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 depositary shall have any rights under this Indenture with respect
to such Global Security and such depositary 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. None of the Partnership, the
Trustee, any Paying Agent or the Security Registrar will have any
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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 depositary, as a Holder, with
respect to such Global Security or impair, as between such depositary and owners
of beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such Global Security.
SECTION 309. CANCELLATION. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly cancelled 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 cancelled 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 cancelled as provided
in this Section, except as expressly permitted by this Indenture. Cancelled
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 Partnership 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 transfer or exchange of Securities of such
series herein expressly provided for and any right to
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receive Additional Amounts, as provided in Section 1009), and the Trustee, upon
receipt of a Partnership 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, if any) and interest,
and any Additional Amounts with respect thereto, to the date of such
deposit (in the case
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of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(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, if any), and any interest and Additional
Amounts 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 upon or any
Additional Amounts payable in respect of any Security of that series or of
any coupon appertaining thereto, when such interest, Additional Amounts or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
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(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable at
its Maturity and continuance of such default for a period of 5 days; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series and continuance of
such default for a period of 5 days; 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 that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
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) 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 Subsid iary, the repayment of which the Partnership
has guaranteed or for which the Partnership is directly responsible or
liable as obligor or guarantor), having an aggre gate 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, by registered or certified mail, to the Partn ership by the
Trustee, or to the Partnership and the Trustee by the Holders of at least
10% in principal amount of the outstanding Notes, 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; provided, however, that such a default on indebtedness which
constitutes tax-exempt financing having an aggregate principal amount
outstanding not exceeding $25,000,000 that results solely from a failure
of an entity providing credit support for such indebtedness to honor a
demand for payment on a letter of credit shall not constitute an Event of
Default; or
(6) the Partnership or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
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(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the 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 Partnership 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
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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 Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding Securities
of that series and any related coupons,
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided for in
such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, 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 or Additional Amounts, if any, on any Security of any series and
any related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity and such
default continues for a period of 5 days,
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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, if any) and interest and Additional Amounts, with interest upon
any overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the 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, 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, if any) and interest and Additional
Amounts, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
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(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
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, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
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SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest
and any Additional Amounts payable, in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and payable
on such Securities and coupons for principal (and premium, if any),
interest and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Partnership.
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,
IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other provision in
this Indenture, the Holder of any Security or coupon shall have the right which
is absolute and unconditional to
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receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on, and any Additional Amounts in respect of,
such Security or payment of such coupon on the respective due dates expressed in
such Security or coupon (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the 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,
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(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
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.
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, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The 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
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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, if any) or
interest on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date).
ARTICLE SIX - THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of
any default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
or any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the Securities
and coupons of such series; and PROVIDED FURTHER that in the case of any default
or breach of the character specified in Section 501(4) with respect to the
Securities and coupons of such series, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Securities
of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Partnership mentioned
herein shall be sufficiently evidenced by a Partnership Request or
Partnership 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
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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 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 and the Partnership, as applicable, 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
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(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by it to
be authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the 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,
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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.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the 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, 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
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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.
(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
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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.
(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
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to which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the 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
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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 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 of not less than $50,000,000 and
subject to supervision or examination by Federal or state authorities. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of 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
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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.
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.
[NAME OF TRUSTEE]
as Trustee
By:_________________________________________
as Authenticating Agent
By:_________________________________________
Authorized Signatory
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).
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
May 15, 1998. A copy of each such report
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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
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(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 (if other than the Partnership) formed by or resulting from any
such consolidation or merger or which shall have received the transfer of such
assets, shall expressly assume the due and punctual payment of the principal of
(and premium, if any) and any interest (including all Additional Amounts, if
any, payable pursuant to Section 1009) 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 Partnership to the Trustee for authentication, and
any Securities which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Securities theretofore or thereafter issued in
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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 herein and in the Securities contained; 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 such default or may limit the right
of the Holders of a majority in aggregate principal
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amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to permit
Bearer Securities to be issued in exchange for Registered Securities, to
permit Bearer Securities to be issued in exchange for Bearer Securities of
other authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(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.
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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, if any, on) or any installment of principal of or interest on,
any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof,
or any premium payable upon the redemption thereof, or change any
obligation of the Partnership to pay Additional Amounts pursuant to
Section 1009 (except as contemplated by Section 801(l) and permitted by
Section 901(1)), or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of any
Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in
which, any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date or
the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (or
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1010, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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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, IF ANY; INTEREST AND
ADDITIONAL AMOUNTS. The Partnership covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of
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Bearer Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1009 in respect of principal of (or premium, if
any, on) such a Security, shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. Unless otherwise specified with respect to Securities
of any series pursuant to Section 301, at the option of the 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 (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 1009);
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 (including payment of any Additional
Amounts payable on Bearer Securities of that series pursuant to Section 1009) at
the offices specified in the Security, in London, England, and the Partnership
hereby appoints the same as its agent to receive such respective
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presentations, surrenders, notices and demands, and the Partnership hereby
appoints the Trustee its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the 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 and interest on any
Bearer Security (including any Additional Amounts payable on Securities of such
series pursuant to Section 1009) shall be made at the office of the
Partnership's Paying Agent in the Borough of Manhattan, The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, 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 Partnership in the
Borough of Manhattan, The City of New York, and initially appoints the Trustee
at its Corporate Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the
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, if any), or interest on or Additional
Amounts in respect of, any of the Securities of that series, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum in the currency
or currencies, currency unit or units or composite currency or currencies in
which
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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, if any) or interest or Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Partnership shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of, any Securities of that series, deposit with a Paying
Agent a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional Amounts, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts and
(unless such Paying Agent is the Trustee) the 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, if any) or interest on Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Partnership
(or any other obligor upon the Securities) in the making of any such
payment of principal (and premium, 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 Partnership 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
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the principal of (and premium, if any) or interest on, or any Additional Amounts
in respect of, any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any), interest or Additional Amounts 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, if
any) or interest on, or any Additional Amounts in respect of, any Security,
without interest thereon, and all liability of the Trustee or such Paying Agent
with respect to such trust money, and all liability of the 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 limited partnership existence, all material rights (by agreement of
limited partnership 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,
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charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
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. ADDITIONAL AMOUNTS. If any Securities of a series provide
for the payment of Additional Amounts, the Partnership will pay to the Holder of
any Security of such series or any coupon appertaining thereto Additional
Amounts as may be specified as contemplated by Section 301. Whenever in this
Indenture there is mentioned, in any context except in the case of Section
502(l), the payment of the principal of or any premium or interest on, or in
respect of, any Security of any series or payment of any related coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Partnership will furnish
the Trustee and the Partnership's principal Paying Agent or Paying Agents, if
other than the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of and
any premium or interest on the Securities of that series shall be made to
Holders of Securities of that series or any related coupons who are not United
States persons without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Partnership will
pay to the Trustee or such Paying Agent the Additional Amounts required by the
terms of such Securities. In the event that the Trustee or any Paying Agent, as
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the case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Partnership covenants to indemnify the Trustee and any Paying Agent for, and to
hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them or in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the
Partnership's not furnishing such an Officers' Certificate.
SECTION 1010. 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 1007, 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 shall, at
least 45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the 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
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particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series issued on such date with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of portions (equal to the
minimum authorized denomination for Securities of that series or any integral
multiple thereof) of the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series.
The Trustee shall promptly notify the 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 less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
Any notice that is mailed to the Holders of Registered Securities in the
manner herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption
Date payable as provided in Section 1106, if any, and Additional Amounts,
if any,
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or Securities
to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without a charge, a new Security or
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Securities of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in Section
1106, if any, will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest thereon
shall cease to accrue on and after said date,
(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. On or 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
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Date) accrued interest on, all the Securities or portions thereof which are to
be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the 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 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, 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 depositary, 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 the Repayment Date specified in or pursuant to the terms of such Securities.
The Partnership covenants that on or 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 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 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 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,
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 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1009, (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 1007, inclusive, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to
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such Outstanding Securities and any coupons appertaining thereto on and after
the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any coupons appertaining thereto
shall thereafter be deemed 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 1007,
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, 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, 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
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payments are due and payable in accordance with the terms of this Indenture and
of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the 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.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms,
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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, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event 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, 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.
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
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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 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 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
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<PAGE> 87
represented at the meeting, and the meeting may be held as so adjourned without
further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of 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.
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<PAGE> 88
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.
GABLES REALTY LIMITED PARTNERSHIP
By: Gables GP, Inc., as General Partner
By: /s/ MARVIN R. BANKS, JR.
---------------------------------------
Marvin R. Banks, Jr.
Chief Financial Officer
Attest: /s/ DAWN H. SEVERT
-------------------------------
Name: Dawn H. Severt
Title: Vice President
FIRST UNION NATIONAL BANK
as Trustee
By: /s/ TERESA L. DAVIS
----------------------------------------
Name: Teresa L. Davis
Title: Vice President
Attest: /s/ SABRINA FULLER
--------------------------------
Name: Sabrina Fuller
Title: Assistant Vice President
82
<PAGE> 89
ACKNOWLEDGMENT
STATE OF GEORGIA ) ) ss:
COUNTY OF COBB )
On the 23rd day of March 1998, before me personally came Marvin R. Banks, Jr. to
me known, who, being by me duly sworn, did depose and say that he/she resides at
Atlanta, Georgia, that he/she is the Chief Financial Officer of Gables GP, Inc.,
the general partner of GABLES REALTY LIMITED PARTNERSHIP, one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Directors of Gables GP, Inc.,
the general partner of Gables Realty Limited Partnership.
[Notarial Seal]
/s/ DONNA R. DAYTON
- -----------------------------------
Notary Public
Commission Expires May 25, 1998
STATE OF GEORGIA )
) ss:
COUNTY OF FULTON )
On the 23rd day of March 1998, before me personally came Teresa L. Davis to me
known, who, being by me duly sworn, did depose and say that he/she resides at
Atlanta, Georgia, that he/she is a Vice President of FIRST UNION NATIONAL BANK,
one of the parties described in and which executed the foregoing instrument, and
that he/she signed his/her name thereto by authority of the Board of Directors
of First Union National Bank.
[Notarial Seal]
/s/ BRIAN K. JUSTICE
- -------------------------------------
Notary Public
Commission Expires September 11, 2000
83
<PAGE> 90
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, 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.]
GABLES REALTY LIMITED PARTNERSHIP
[Designation of Series]
No. _______ $_______
GABLES REALTY 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
A-1
<PAGE> 91
EARLIER REDEMPTION (the "Redemption Date," and together with the Stated Maturity
Date with respect to principal repayable on such date, the "Maturity Date.")]
[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, 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 ___________________,
A-2
<PAGE> 92
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.
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, 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, 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.
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<PAGE> 93
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated:___________________ GABLES REALTY LIMITED PARTNERSHIP
By: Gables GP, Inc., as General Partner
By: ________________________________________
Name:
Title:
Attest:
_________________________
Name:
Secretary
A-4
<PAGE> 94
[Reverse of Security]
GABLES REALTY 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 _____________, 199_ (herein called the
"Indenture") between the Partnership and _________________, 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
---- ---------------- ---- ----------------
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<PAGE> 95
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 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
A-6
<PAGE> 96
[mandatory] sinking fund payments otherwise required to be made in the [DESCRIBE
ORDER] order in which they become due.]]
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, 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, 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.
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<PAGE> 97
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.
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 this Security,
or because of any indebtedness evidenced hereby, or for any claim based hereon
or otherwise in respect hereof, shall be had for the payment of the principal of
or premium, 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) the Company or any
other past, present or future partner in the Partnership, (ii) against any other
Person which owns an interest, directly or indirectly, in any partner of the
Partnership or (iii) against 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.
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<PAGE> 98
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 Gables Realty Limited Partnership or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
B-1
<PAGE> 99
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> 100
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 Gables Realty Limited Partnership or its agent that
such financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, to the further effect, that financial institutions described in clause
(iii) above (whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "Possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary Global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member
B-3
<PAGE> 101
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> 1
Exhibit 4.2
- --------------------------------------------------------------------------------
GABLES REALTY LIMITED PARTNERSHIP
ISSUER
------
to
FIRST UNION NATIONAL BANK
TRUSTEE
-------
-------------------------
Supplemental Indenture No. 1
Dated as of March 23, 1998
-------------------------
$100,000,000
of
6.80% Senior Notes due 2005
<PAGE> 2
SUPPLEMENTAL INDENTURE NO. 1, dated as of March 23, 1998 (the
"Supplemental Indenture"), between GABLES REALTY LIMITED PARTNERSHIP, a limited
partnership organized under the laws of the State of Delaware (herein called the
"Partnership"), and FIRST UNION NATIONAL BANK, a national banking association,
as Trustee (herein called the "Trustee").
RECITALS OF THE PARTNERSHIP
The Partnership has heretofore delivered to the Trustee an Indenture
dated as of March 23, 1998 (the "Senior Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit to the Partnership's Registration Statement on
Form S-3 (Registration No. 333-30093), providing for the issuance by the
Partnership from time to time of its senior debt securities evidencing its
unsecured and unsubordinated indebtedness (the "Securities").
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 Gables GP, 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 the
series of Securities provided for herein by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders of
Securities of such series, as follows:
<PAGE> 3
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 Debt" means Debt 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 Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt 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.
"Adjusted Total Assets" as of any date means the sum of (i) the
amount determined by multiplying the price at which the Common Shares of Gables
were offered in the initial public offering (the "IPO") of Common Shares of
Gables by the sum of (A) the Common Shares issued in the IPO and (B) the Units
of the Partnership not held by Gables that were issued in connection with the
IPO, (ii) the principal amount of outstanding Debt of the Partnership
immediately following the IPO and (iii) the purchase price or cost of any real
estate assets or mortgages receivable (or interests therein) acquired (including
the value of any Units issued in connection therewith) or developed after the
IPO and the amount of any securities offering proceeds and other proceeds of
Debt received after the IPO (to the extent such proceeds were not used to
acquire real estate assets or mortgages receivable or used to reduce Debt),
adjusted for the proceeds of any real estate assets disposed of by the
Partnership. This definition of "Adjusted Total Assets" values the assets owned
by the Partnership at the time of the IPO at the market capitalization of the
Partnership at that time, which the Partnership believes
2
<PAGE> 4
to be a more appropriate measure of the value of those assets than undepreciated
book value, which reflects their pre-IPO cost before accumulated depreciation.
"Annual Debt Service Charge" as of any date means the amount of any
interest expensed during the four consecutive fiscal quarters most recently
ended prior to such date.
"Common Shares" mean the common shares of beneficial interest, par
value $0.01 per share, of Gables.
"Consolidated Income Available for Debt Service" for any period
means Consolidated Net Income of the Partnership and its Subsidiaries plus
amounts which have been deducted for: (i) interest on Debt 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, (v) depreciation and
amortization, (vi) the effect of any noncash charge resulting from a change in
accounting principles in determining Consolidated Net Income for such period and
(vii) amortization of deferred charges.
"Consolidated Net Income" for any period means the amount of net
income (or loss) of the Partnership and its Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Corporate Trust Office", including for purposes of the Place of
Payment provisions of Sections 305 and 1002 of the Senior Indenture, 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 999 Peachtree Street, N.E., Atlanta, Georgia 30309.
"Debt" 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 evidenced by bonds, notes, debentures or similar instruments,
(ii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or
any security interest existing on property owned by the Partnership or any
Subsidiary, (iii) reimbursement obligations in connection with any letters of
credit actually issued or amounts representing the balance deferred and unpaid
of the purchase price of any property except any such balance that constitutes
an accrued expense or trade payable or (iv) any lease of property by the
Partnership or any Subsidiary as lessee which is reflected on the Partnership's
consolidated balance sheet as a capitalized lease in accordance with GAAP; in
the case of items of indebtedness incurred under (i) through (iii) above to the
extent that any such items (other than letters of credit) would appear as a
liability on the Partnership's consolidated balance sheet in accordance with
GAAP; and also includes, to the extent not otherwise included, any obligation of
the Partnership or any Subsidiary to be liable
3
<PAGE> 5
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).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"Gables" mean Gables Residential Trust, a Maryland real estate
investment trust.
"Make-Whole Amount" means, in connection with any optional
redemption or accelerated payment of any Note, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated payment
of each dollar of principal being redeemed or paid and the amount of interest
(exclusive of interest accrued to the date of redemption or accelerated payment)
that would have been payable in respect of such dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Notes being redeemed or paid. Any Make-Whole Amount
shall be determined by the Partnership, when owing, in an Officers' Certificate
to be filed with the Trustee, which certificate shall set out the computation of
such Make Whole Amount.
"Management Companies" means certain corporations, of which the
Partnership owns 100% of the nonvoting stock and 1% of the voting stock, which
do not qualify as "qualified REIT subsidiaries" under the Internal Revenue Code
of 1986, as amended.
"Notes" has the meaning specified in Section 2.1 hereof.
"Reinvestment Rate" means the yield on Treasury securities at a
constant maturity corresponding to the remaining life (as of the date of
redemption, and rounded to the nearest month) to stated maturity of the
principal being redeemed (the "Treasury Yield"), plus 0.25%. For purposes
hereof, the Treasury Yield shall be equal to the arithmetic mean of the yields
published in the Statistical Release (as defined below) under the heading "Week
Ending" for the "U.S. Government Securities--Treasury Constant Maturities" with
a maturity equal to such remaining life; provided, that if no published maturity
exactly corresponds to such remaining life, then the Treasury Yield shall be
interpolated or extrapolated on a straight-line basis from the arithmetic means
of the yields for the next shortest
4
<PAGE> 6
and next longest published maturities. For purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury Yield in the above manner, then the Treasury Yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Partnership.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination of the
Make-Whole Amount, then such other reasonably comparable index which shall be
designated by the Partnership.
"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
securities 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.
"Unencumbered Total Asset Value" as of any date means the sum of (i)
the portion of Adjusted Total Assets allocable to the Partnership's real estate
assets and (ii) the value of all other assets of the Partnership and its
Subsidiaries on a consolidated basis determined in accordance with GAAP (but
excluding intangibles and accounts receivable), in each case which are
unencumbered by any mortgage, lien, charge, pledge or security interest.
"Units" means units of limited partnership of the Partnership.
5
<PAGE> 7
ARTICLE TWO
THE NOTES
SECTION 2.1. TITLE OF THE SECURITIES.
There shall be a series of Securities designated the "6.80% Senior
Notes Due 2005" (the "Notes").
SECTION 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the Notes shall be limited to
$100,000,000, and, except as provided in this Section and in Section 306 of the
Senior Indenture, the Partnership shall not execute and the Trustee shall not
authenticate or deliver Notes in excess of such aggregate principal amount.
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 Senior Indenture.
SECTION 2.3. INTEREST AND INTEREST RATES; MATURITY
DATE OF NOTES.
The Notes will bear interest at 6.80% per annum from March 15, 1998
or from the immediately preceding Interest Payment Date (as defined below) to
which interest has been paid, payable semi-annually in arrears on March 15 and
September 15 of each year, commencing September 15, 1998 (each, an "Interest
Payment Date"), to the persons (the "Holders") in whose name the applicable
Notes are registered in the Security Register at the close of business 15
calendar days prior to such Interest Payment Date, i.e., February 28 and August
31, respectively (regardless of whether such day is a Business Day, as defined
below), as the case may be (each, a "Regular Record Date"). Interest on the
Notes will be computed on the basis of a 360-day year of twelve 30-day months.
Any interest not punctually paid or duly provided for on any Interest Payment
Date with respect to a Note ("Defaulted Interest") will forthwith cease to be
payable to the Holder on the applicable Regular Record Date and may either be
paid to the person in whose name such 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, notice whereof shall be
given to the Holder of such Note not less than ten days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, as more
particularly described in the Indenture.
6
<PAGE> 8
If any Interest Payment Date or Maturity falls on a day that is not
a Business Day, the required payment shall be on the next Business Day as if it
were made 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
Maturity, as the case may be.
The Notes will mature on March 15, 2005.
SECTION 2.4. LIMITATIONS ON INCURRENCE OF DEBT.
(a) The Partnership will not, and will not permit any Subsidiary to,
incur any Debt, other than intercompany Debt (representing Debt to which the
only parties are Gables, any of its Subsidiaries, the Partnership or the
Management Companies, but only so long as such Debt is held solely by any of the
foregoing), if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt 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 Partnership's Adjusted Total Assets
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, filed with the Trustee) prior to the incurrence of such additional
Debt, (ii) the purchase price of any real estate assets or mortgages receivable
(or interests therein) acquired by the Partnership or any Subsidiary since the
end of such calendar quarter, including those obtained in connection with the
incurrence of such additional Debt and (iii) the amount of any securities
offering proceeds received by the Partnership or any Subsidiary since the end of
such calendar quarter (to the extent that such proceeds were not used to acquire
such real estate assets or mortgages receivable or used to reduce Debt).
(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 Debt if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge for the four consecutive fiscal quarters
most recently ended prior to the date on which such additional Debt is to be
incurred shall have been less than 1.5:1, 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 Debt and any other Debt 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
Debt, had occurred at the beginning of such period; (ii) the repayment or
retirement of any other Debt 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
Debt under any revolving credit facility shall be computed based
7
<PAGE> 9
upon the average daily balance of such Debt during such period); (iii) in the
case of Acquired Debt or Debt 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
Debt had occurred as of the first day of such period with the appropriate
adjustments with respect to such acquisition or disposition being included in
such pro forma calculation.
(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 Debt secured by any mortgage, lien, charge, pledge,
encumbrance or security interest of any kind upon any of the property of the
Partnership or any Subsidiary ("Secured Debt"), whether owned at the date hereof
or thereafter acquired, if, immediately after giving effect to the incurrence of
such Secured Debt and the application of the proceeds therefrom, the aggregate
principal amount of all outstanding Secured Debt of the Partnership and its
Subsidiaries on a consolidated basis is greater than 40% of the sum of (without
duplication) (i) the Partnership's Adjusted Total Assets 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, filed
with the Trustee) prior to the incurrence of such additional Debt, (ii) the
purchase price of any real estate assets or mortgages receivable (or interests
therein) acquired by the Partnership or any Subsidiary since the end of such
calendar quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt and (iii) the amount of any securities
offering proceeds received by the Partnership or any Subsidiary since the end of
such calendar quarter (to the extent that such proceeds were not used to acquire
such real estate assets or mortgages receivable or used to reduce Debt).
(d) The Partnership and its Subsidiaries will at all times maintain
an Unencumbered Total Asset Value in an amount not less than 150% of the
aggregate principal amount of all outstanding unsecured Debt of the Partnership
and its Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Debt 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.
8
<PAGE> 10
SECTION 2.5. REDEMPTION.
The Notes may be redeemed at any time at the option of the
Partnership, in whole or in part, at a redemption price equal to the sum of (i)
the principal amount of the Notes being redeemed plus accrued interest thereon
to the Redemption Date and (ii) the Make-Whole Amount, if any, with respect to
such Notes (the "Redemption Price").
SECTION 2.6. PLACES OF PAYMENT.
The Places of Payment where the Notes may be presented or
surrendered for payment, where the Notes may be surrendered for registration of
transfer or exchange and where notices and demands to and upon the Partnership
in respect of the Notes and the Senior Indenture may be served shall be in the
City of Atlanta, Georgia and the office or agency for such purpose shall
initially be located at c/o First Union National Bank, Corporate Trust
Department, 999 Peachtree Street, N.E., Atlanta, Georgia 30309.
SECTION 2.7. METHOD OF PAYMENT.
Payment of the principal of and interest on the Notes will be made
at the office or agency of the Partnership maintained for that purpose in the
City of Atlanta, Georgia (which shall initially be an office or agency of the
Trustee), in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at the option of the Partnership, payments of principal
and interest on the Notes (other than payments of principal and interest due at
Maturity) may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto located within
the United States.
SECTION 2.8. CURRENCY.
Principal and interest on the Notes shall be payable in Dollars.
SECTION 2.9. REGISTERED SECURITIES; GLOBAL FORM.
The Notes shall be issuable and transferable in fully registered
form as Registered Securities, without coupons. The Notes shall be issued in the
form of one or more permanent Global Securities. The depository for the Notes
shall be The Depository Trust Company ("DTC"). The Notes shall not be issuable
in definitive form except as provided in Section 305 of the Senior Indenture.
9
<PAGE> 11
SECTION 2.10. FORM OF NOTES.
The Notes shall be substantially in the form attached as Exhibit A
hereto.
SECTION 2.11. REGISTRAR AND PAYING AGENT.
The Trustee shall initially serve as Security Registrar and Paying
Agent for the Notes.
SECTION 2.12. 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 2.14 of
this Supplemental Indenture and to those covenants specified in Section 1403 of
the Senior Indenture.
SECTION 2.13. 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 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.
10
<PAGE> 12
SECTION 2.14. WAIVER OF CERTAIN COVENANTS.
Notwithstanding the provisions of Section 1010 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 1007, inclusive,
of the Senior Indenture, with Sections 2.4 and 2.14 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.
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
Supplemental 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.
11
<PAGE> 13
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.
GABLES REALTY LIMITED
PARTNERSHIP
By: Gables GP, Inc.,
its general partner
By: /s/ MARVIN R. BANKS, JR.
----------------------------------------
Marvin Banks, Jr.
Chief Financial Officer
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ TERESA L. DAVIS
----------------------------------------
Name: Teresa L. Davis
Title: Vice President
12
<PAGE> 14
EXHIBIT A
FORM OF SENIOR SECURITY
[Face of Security]
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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ITS NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.
GABLES REALTY LIMITED PARTNERSHIP
6.80% Senior Notes Due 2005
Register No. 1 Principal Amount
CUSIP No. 362415 AA 9 $100,000,000
GABLES REALTY 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 Cede & Co. or registered assigns the principal sum of
$100,000,000 Dollars on March 15, 2005 (the "Stated Maturity Date") or earlier
at the option of the Partnership (the "Redemption Date", and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date") and to pay interest thereon from March 15, 1998 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 15 and September 15 in each year (each, an
"Interest Payment Date"), commencing September 15, 1998, at the rate of 6.80%
per annum, until the
A-1
<PAGE> 15
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 February 28 or
August 31 (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 wire 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.
The principal of this Security payable on the Stated Maturity Date or the
principal of, 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 the City of Atlanta, Georgia
(which initially shall be an office or agency of the Trustee), 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.
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
March 15, 1998, 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, Make-Whole Amount, if any, and/or interest payable with respect to
such Interest Payment Date or Stated Maturity 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
A-2
<PAGE> 16
Redemption Date, as the case may be. "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions in the City of New York are authorized by law, regulation or
executive order to close.
All payments of principal, 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.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
Identification Procedures, the Partnership has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
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.
A-3
<PAGE> 17
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated: GABLES REALTY LIMITED
PARTNERSHIP
By: Gables GP, Inc.,
its general partner
By:__________________________
Marvin R. Banks, Jr.
Chief Financial Officer
Attest: __________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of Securities of the series designated therein referred to in
the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:_______________________
Name:
Title:
A-4
<PAGE> 18
[Reverse of Security]
GABLES REALTY 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 March 23, 1998, as supplemented by Supplemental
Indenture No. 1, dated as of March 23, 1998 (as so supplemented, herein called
the "Indenture") between the Partnership and First Union National Bank, 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"), and the aggregate principal amount of the Securities to be issued
under such series as limited to $100,000,000 (except for Securities
authenticated and delivered upon transfer of, or in exchange for, or in lieu of
other Securities). All capitalized 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 with respect to the Securities, 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.
The Securities are subject to redemption at any time, as a whole or in part, at
the election of the Partnership, at a Redemption Price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
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.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Partnership on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Partnership, in each case, upon compliance by the Partnership with certain
conditions set forth in the Indenture, which provisions apply to this Security.
A-5
<PAGE> 19
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 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 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
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 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> 20
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 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 thereon or otherwise in respect hereof, shall be had for the payment
of the principal of 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) the Company or any other past, present or future partner in the
Partnership, (ii) against any other Person which owns an interest, directly or
indirectly, in any partner of the Partnership or (iii) against 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, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being, 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> 21
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
____________________________
| ............................................
____________________________|
..............................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
..............................................................................
the within Security of Gables Realty Limited Partnership and hereby
does irrevocably constitute and appoint
......................................................................Attorney
to transfer said Security on the books of the within-named
Partnership with full power of substitution in the premises.
Dated: ............... .................................................
.................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
A-8
<PAGE> 1
Exhibit 4.3
[Face of Security]
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 IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A
NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC
OR ITS NOMINEE TO A SUCCESSOR DEPOSITORY OR ITS NOMINEE.
GABLES REALTY LIMITED PARTNERSHIP
6.80% Senior Notes Due 2005
Register No. 1 Principal Amount
CUSIP No. 362415 AA 9 $100,000,000
GABLES REALTY 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 Cede & Co. or registered assigns the principal sum of
$100,000,000 Dollars on March 15, 2005 (the "Stated Maturity Date") or earlier
at the option of the Partnership (the "Redemption Date", and together with the
Stated Maturity Date with respect to principal repayable on such date, the
"Maturity Date") and to pay interest thereon from March 15, 1998 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 15 and September 15 in each year (each, an
"Interest Payment Date"), commencing September 15, 1998, at the rate of 6.80%
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
February 28 or August 31 (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, HOWEV-
<PAGE> 2
ER, that such interest may be paid, at the Partnership's option, by mailing a
check to such Holder at its registered address or by wire 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.
The principal of this Security payable on the Stated Maturity Date or the
principal of, 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 the City of Atlanta, Georgia
(which initially shall be an office or agency of the Trustee), 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.
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
March 15, 1998, 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, Make-Whole Amount, if any, and/or interest payable with respect to
such Interest Payment Date or Stated Maturity 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, that is
neither a legal holiday nor a day on which banking institutions in the City of
New York are authorized by law, regulation or executive order to close.
All payments of principal, 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.
Pursuant to a recommendation promulgated by the Committee on Uniform Security
<PAGE> 3
Identification Procedures, the Partnership has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
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.
<PAGE> 4
IN WITNESS WHEREOF, the Partnership has caused this instrument to be duly
executed under the facsimile corporate seal of its general partner.
Dated: GABLES REALTY LIMITED
PARTNERSHIP
By: Gables GP, Inc.,
its general partner
By: /s/ MARVIN R. BANKS, JR.
-------------------------------
Marvin R. Banks, Jr.
Chief Financial Officer
Attest: /s/ DAWN H. SEVERT
----------------------
Name: Dawn H. Severt
Title: Vice President
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of Securities of the series designated therein referred to in
the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/ TERESA L. DAVIS
-------------------------------------
Name: Teresa L. Davis
Title: Vice President
<PAGE> 5
[Reverse of Security]
GABLES REALTY 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 March 23, 1998, as supplemented by Supplemental
Indenture No. 1, dated as of March 23, 1998 (as so supplemented, herein called
the "Indenture") between the Partnership and First Union National Bank, 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"), and the aggregate principal amount of the Securities to be issued
under such series as limited to $100,000,000 (except for Securities
authenticated and delivered upon transfer of, or in exchange for, or in lieu of
other Securities). All capitalized 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 with respect to the Securities, 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.
The Securities are subject to redemption at any time, as a whole or in part, at
the election of the Partnership, at a Redemption Price equal to the sum of (i)
the principal amount of the Securities being redeemed plus accrued interest
thereon to the Redemption Date and (ii) the Make-Whole Amount, if any, with
respect to such Securities.
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.
The Indenture contains provisions for defeasance at any time of (a) the entire
indebtedness of the Partnership on this Security and (b) certain restrictive
covenants and the related defaults and Events of Default applicable to the
Partnership, in each case, upon compliance by the Partnership with certain
conditions set forth in the Indenture, which provisions apply to this Security.
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
<PAGE> 6
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 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 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
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 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.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 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
<PAGE> 7
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 thereon or otherwise in respect hereof, shall be had for the payment
of the principal of 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) the Company or any other past, present or future partner in the
Partnership, (ii) against any other Person which owns an interest, directly or
indirectly, in any partner of the Partnership or (iii) against 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, under any rule of law, statute or constitutional provision or
by the enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being, 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.
<PAGE> 8
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
----------------------------
----------------------------
------------------------------------------
- --------------------------------------------------------------------------------
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
- --------------------------------------------------------------------------------
the within Security of Gables Realty Limited Partnership and hereby does
irrevocably constitute and appoint
Attorney
- -----------------------------------------------------------------------
to transfer said Security on the books of the within-named Partnership with full
power of substitution in the premises.
Dated:
---------------------------------------
-------------------------------
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
<PAGE> 1
Exhibit 5.1
GOODWIN, PROCTER & HOAR LLP
COUNSELLORS AT LAW
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
TELEPHONE (617) 570-1000
TELECOPIER (617) 523-1231
March 23, 1998
Gables Residential Trust
Gables Realty Limited Partnership
2859 Paces Ferry Road
Overlook III, Suite 1450
Atlanta, Georgia 30339
Ladies and Gentlemen:
We have acted as counsel to Gables Residential Trust, a Maryland real
estate investment trust (the "Company"), and Gables Realty Limited Partnership,
a Delaware limited partnership (the "Partnership"), in connection with the offer
and sale by the Partnership of $100,000,000 aggregate principal amount of the
Partnership's 6.80% Senior Notes due 2005 (the "Notes"). This opinion is being
delivered in connection with (i) the Company's and the Partnership's
Registration Statement on Form S-3 (No. 333-30093) (the "Registration
Statement") relating to the registration of the offering and sale under the
Securities Act of 1933, as amended, of up to $300,000,000 of securities of the
Company and up to $200,000,000 of debt securities of the Partnership, and (ii) a
prospectus supplement dated March 18, 1998 (the "Prospectus Supplement") which
supplements the prospectus included in such Registration Statement, relating to
the offering of the Notes by the Partnership. The Notes will be offered by the
Underwriters (as defined below) pursuant to that certain Underwriting Agreement
dated March 18, 1998 between the Partnership and the Company and PaineWebber
Incorporated and Lehman Brothers Inc. (the "Underwriters"). The Notes will be
issued under an Indenture dated March 23, 1998 between the Partnership and First
Union National Bank, as trustee, as amended and supplemented by Supplemental
Indenture No. 1 dated March 23, 1998 (collectively, the "Indenture").
As the basis for the opinion hereinafter expressed, we have examined such
statutes, regulations, corporate records and documents, certificates of public
officials and other instruments as we have deemed necessary or advisable for the
purposes of this opinion. In such examination, we have assumed the authenticity
of all documents submitted to us as originals and the conformity with the
original documents of all documents submitted to us as copies.
<PAGE> 2
GOODWIN, PROCTER & HOAR LLP
Gables Residential Trust
Gables Realty Limited Partnership
March 23, 1998
Page 2
The opinions expressed below are qualified to the extent that (i) the
validity or enforceability of any provision of the Notes and the Indenture or
any rights granted thereunder may be subject to or affected by any bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or similar law
relating to or affecting the rights of creditors generally, (ii) the remedy of
specific performance or any other equitable remedy may be unavailable in any
jurisdiction or may be withheld as a matter of judicial discretion, and (iii)
general principles of equity, including without limitation, concepts of
materiality, reasonableness, good faith and fair dealing may be applied in the
exercise of judicial discretion in construing or enforcing the provisions of any
instrument or document (regardless of whether enforcement is sought in a
proceeding in equity or at law).
We express no opinion concerning the laws of any jurisdictions other than
the laws of the United States of America, The Commonwealth of Massachusetts and
the Delaware Revised Uniform Limited Partnership Act.
Based on the foregoing and on such legal considerations as we deem
relevant, we are of the opinion that the Notes have been duly authorized,
executed and delivered by the Partnership and, assuming the due authentication
of the Notes in accordance with the terms of the Indenture, when delivered to
and paid for by the Underwriters, will constitute valid and binding obligations
of the Partnership, entitled to the benefits of the Indenture and enforceable
against the Partnership in accordance with their terms.
We hereby consent to the use of this opinion as an exhibit to the
Partnership's Current Report on Form 8-K dated March 23, 1998 and the Company's
Current Report on Form 8-K dated March 23, 1998, which are incorporated by
reference into the Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
Exhibit 12.1
Gables Realty Limited Partnership
Ratio of earnings to fixed charges
Dollars in thousands
<TABLE>
<CAPTION>
Gables Realty Limited
Gables Realty Limited Partnership Partnership Predecessor
-------------------------------------------- -----------------------
Years ended 12-31
-------------------------------- 1-26-94 - 1-1-94 - Year ended
1997 1996 1995 12-31-94 1-25-94 12-31-93
-------------------------------------------- -----------------------
<S> <C> <C> <C> <C> <C> <C>
Net income before gain on sale of
real estate assets, loss on treasury
lock extension and extraordinary items $31,931 $27,541 $18,369 $15,972 ($92) $4,520
-------------------------------------------- -----------------------
Plus Fixed Charges:
Interest expense 24,804 21,112 13,088 8,345 1,043 12,253
Credit enhancement fees 509 576 710 661 35 591
Interest capitalized 5,161 4,373 7,481 3,031 54 1,053
Loan cost amortization expense 992 1,348 932 893 234 1,132
Loan cost amortization capitalized 182 285 1,508 1,176 0 110
-------------------------------------------- -----------------------
Total fixed charges(1) 31,648 27,694 23,719 14,106 1,366 15,139
Less:
Interest capitalized 5,161 4,373 7,481 3,031 54 1,053
Loan cost amortization capitalized 182 285 1,508 1,176 0 110
-------------------------------------------- -----------------------
Adjusted earnings (2) 58,236 50,577 33,099 25,871 1,220 18,496
-------------------------------------------- -----------------------
Ratio (2 divided by 1) 1.84 1.83 1.40 1.83 0.89 1.22
============================================ =======================
Coverage deficiency (146)
</TABLE>
<PAGE> 1
Exhibit 12.2
Gables Realty Limited Partnership
Ratio of earnings to combined fixed charges and preferred dividends
Dollars in thousands
<TABLE>
<CAPTION>
Gables Realty Limited
Gables Realty Limited Partnership Partnership Predecessor
-------------------------------------------- -----------------------
Years ended 12-31
-------------------------------- 1-26-94 - 1-1-94 - Year ended
1997 1996 1995 12-31-94 1-25-94 12-31-93
-------------------------------------------- -----------------------
<S> <C> <C> <C> <C> <C> <C>
Net income before gain on sale of
real estate assets, loss on treasury
lock extension and extraordinary items $31,931 $27,541 $18,369 $15,972 ($92) $4,520
-------------------------------------------- -----------------------
Plus Fixed Charges and Preferred Dividends:
Interest expense 24,804 21,112 13,088 8,345 1,043 12,253
Credit enhancement fees 509 576 710 661 35 591
Interest capitalized 5,161 4,373 7,481 3,031 54 1,053
Loan cost amortization expense 992 1,348 932 893 234 1,132
Loan cost amortization capitalized 182 285 1,508 1,176 0 110
Preferred dividends 4,163 0 0 0 0 0
-------------------------------------------- -----------------------
Total fixed charges and preferred dividends(1) 35,811 27,694 23,719 14,106 1,366 15,139
Less:
Interest capitalized 5,161 4,373 7,481 3,031 54 1,053
Loan cost amortization capitalized 182 285 1,508 1,176 0 110
-------------------------------------------- -----------------------
Adjusted earnings (2) 62,399 50,577 33,099 25,871 1,220 18,496
-------------------------------------------- -----------------------
Ratio (2 divided by 1) 1.74 1.83 1.40 1.83 0.89 1.22
============================================ =======================
Coverage deficiency (146)
</TABLE>
