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 12,
1998
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Price Development Company, Limited Partnership
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(Exact Name of Registrant as Specified in Its Charter)
Maryland 333-34835-01
87-0516235
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(State or Other (Commission File Number) (IRS
Employer
Jurisdiction Identification
Number)
of Formation)
35 Century Park-Way, Salt Lake City, Utah 84115
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(Address of Principal Executive Offices, Including Zip Code)
Registrant's Telephone Number, Including Area Code (801)
486-3911
N/A
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(Former Name of Former Address, if Changed Since Last
Report)
<PAGE>
ITEM 5. OTHER EVENTS
On September 2, 1997, JP Realty, Inc. (the "Company") and
Price
Development Company, Limited Partnership, a limited partnership
subsidiary of
the Company (the "Operating Partnership"), jointly filed a
registration
statement on Form S-3 (File Nos. 333-34835 and 333-34835-01) (the
"Registration Statement") relating to $347,062,500 aggregate
offering price of
securities with the Securities and Exchange Commission (the "SEC").
Pursuant
to the Registration Statement, the securities registered (i) by the
Company
consisted of shares of common stock, par value $.0001 per share
(the "Common
Stock"), warrants to purchase Common Stock, shares or fractional
shares of
preferred stock, par value $.0001 per share (the "Preferred
Stock"),
depositary shares representing Preferred Stock and guarantees
relating to
non-investment grade debt securities which may be issued by the
Operating
Partnership and (ii) by the Operating Partnership consisted of
non-convertible
debt securities. On November 17, 1997, the Registration Statement
was
declared effective by the SEC. The Operating Partnership has
offered for sale
$100,000,000 aggregate principal amount of 7.29% Senior Notes due
2008 in an
underwritten public offering through the several underwriters (the
"Underwriters") listed on Schedule I to the Purchase Agreement
which is filed
as Exhibit 1.4 hereto. In connection with the foregoing, the
Indenture, the
First Supplemental Indenture and the Form of Debt Securities are
attached
hereto as Exhibits 4.8, 4.9 and 4.6, respectively.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(a) Financial Statements - None
(b) Pro Forma Financial Information - None
(c) Exhibits
1.4 - Purchase Agreement (for Debt Securities), dated March 11,
1998, among
the Company, the Operating Partnership and the Underwriters.
4.6 - Form of Debt Security
4.8 - Indenture, dated March 11, 1998, by and between the Operating
Partnership and The Chase Manhattan Bank as trustee (the
"Trustee").
4.9 - First Supplemental Indenture, dated March 11, 1998, by and
between the
Operating Partnership and the Trustee.
<PAGE>
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 12, 1998
PRICE DEVELOPMENT COMPANY, LIMITED
PARTNERSHIP
By: JP Realty, Inc. as a General
Partner
By:/s/ M. Scott Collins
-----------------------------
M. Scott Collins,
Vice-President--Chief
Financial Officer and Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit No.
1.4 Purchase Agreement (for Debt Securities), dated March 11,
1998, among
the Company, the Operating Partnership and the Underwriters.
4.6 Form of Debt Security.
4.8 Indenture, dated March 11, 1998, by and between the Operating
Partnership and the Trustee.
4.9 First Supplemental Indenture, dated March 11, 1998, by and
between the
Operating Partnership and the Trustee.
Exhibit 1.4
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
(a Maryland limited partnership)
$100,000,000 7.29% Senior Notes due 2008
PURCHASE AGREEMENT
Dated: March 6, 1998
<PAGE>
Table of Contents
Page
SECTION 1.Representations and Warranties. 3
(a) Representations and Warranties by the
Operating Partnership and JP Realty 3
(i) Compliance with Registration
Requirements 3
(ii) Incorporated Documents 4
(iii) Good Standing of the Operating Partnership 4
(iv) Good Standing of JP Realty 5
(v) Good Standing of Subsidiaries 5
(vi) Capitalization 5
(vii) Absence of Proceedings 6
(viii) Absence of Violations and Defaults 6
(ix) Absence of Further Requirements and Conflicts 6
(x) Independent Accountants 7
(xi) Financial Statements 7
(xii) Authorization of the Indenture 8
(xiii) Authorization of the Securities 8
(xiv) Description of the Securities and the
Indenture 8
(xv) Authorization of this Agreement. 9
(xvi) Qualification as a REIT 9
(xvii) No Material Adverse Change in Business 9
(xviii) Title Insurance 9
(xix) Insurance 9
(xx) Title to Property 10
(xxi) Possession of Licenses and Permits 10
(xxii) Maintenance of Internal Accounting Controls 10
(xxiii) Investment Company 11
(xxiv) Environmental Laws 11
(b) Officer's Certificates 11
SECTION 2. Sale and Delivery to Underwriters; Closing. 11
(a) Securities 11
(b) Payment 12
(c) Denominations; Registration 12
SECTION 3. Covenants 13
(a) Filing Prospectus Supplement 13
(b) Compliance with Securities Regulations
and Commission Requests 13
(c) Delivery of Registration Statements 13
(d) Filing of Amendments 14
(e) Delivery of Prospectuses; Continued
Compliance with Securities Laws 14
(f) Rule 158 15
(g) Use of Proceeds 15
(h) Reporting Requirements 15
SECTION 4. Payment of Expenses 15
(a) Expenses 15
(b) Termination of Agreement 16
SECTION 5. Conditions of Underwriters' Obligations 16
(a) Effectiveness of Registration Statement;
Filing of Prospectus Supplement 16
(b) Opinions of Counsel 17
(c) Accountant's Comfort Letter 25
(d) Bring-down Comfort Letter 26
(e) Officers' Certificate 26
(f) Additional Documents 26
(g) Maintenance of Rating 26
SECTION 6. Indemnification 27
(a) Indemnification of Underwriters 27
(b) Indemnification of JP Realty and the
Operating Partnership 29
(c) Actions against Parties; Notification 29
(d) Settlement without Consent if Failure
to Reimburse 30
SECTION 7. Contribution 30
SECTION 8. Representations, Warranties and Agreements to
Survive Delivery 32
SECTION 9. Termination of Agreement 32
(a) Termination; General 32
(b) Liabilities 33
SECTION 10. Default by One or More of the Underwriters 33
SECTION 11. Notices 34
SECTION 12. Parties 34
SECTION 13. GOVERNING LAW AND TIME. 35
SECTION 14. Effect of Headings 35
SCHEDULE IS-1
Schedule IIS-2
Exhibit A-1
<PAGE>
<PAGE>
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
(a Maryland limited partnership)
$100,000,000 7.29% Senior Notes due 2008
PURCHASE AGREEMENT
March 6, 1998
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner &
Smith Incorporated
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
UBS SECURITIES LLC
c/o MERRILL LYNCH & CO.
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Each of Price Development Company, Limited Partnership,
a Maryland
limited partnership (the "Operating Partnership"), and JP Realty,
Inc., a
Maryland corporation and the general partner of the Operating
Partnership ("JP
Realty"), confirms its agreement with the several Underwriters
named in
Schedule I hereto (collectively, the "Underwriters," which term
shall also
include any underwriter substituted as hereinafter provided in
Section 10
hereof), for whom Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith
Incorporated ("Merrill Lynch") is acting as representative (in such
capacity,
the "Representative"), with respect to the issue and sale by the
Operating
Partnership and the purchase by the Underwriters, acting severally
and not
jointly, of the respective principal amounts set forth in Schedule
I of
$100,000,000 aggregate principal amount of the Operating
Partnership's 7.29%
Senior Notes due 2008 (the "Securities"). The Securities are to be
issued
pursuant to an indenture, dated as of March 11, 1998 between the
Operating
Partnership and The Chase Manhattan Bank, as trustee (the
"Trustee"), as
supplemented by the First Supplemental Indenture, dated as of March
11, 1998
(as supplemented, the "Indenture").
Each of the Operating Partnership and JP Realty
understands that the
Underwriters propose to make a public offering to institutional
purchasers of
the Securities as soon as the Representative deems advisable after
this
Agreement has been executed and delivered and the Indenture has
been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
JP Realty and the Operating Partnership have filed with
the
Securities and Exchange Commission (the "Commission") a
registration statement
on Form S-3 (Nos. 333-34835 and 333-34835-01), including a
prospectus relating
to the Securities and other securities of JP Realty and the
offering thereof
from time to time in accordance with Rule 415 under the Securities
Act of
1933, as amended (the "1933 Act"). Such registration statement has
been
declared effective by the Commission. The Operating Partnership
proposes to
file with the Commission pursuant to Rule 424 under the 1933 Act a
prospectus
supplement reflecting the terms of the offering of the Securities
and certain
other matters set forth therein. Such prospectus supplement, in
the form
first filed after the date hereof pursuant to Rule 424, is herein
referred to
as the "Prospectus Supplement." Such registration statement, as
amended at the
date hereof, including all documents incorporated or deemed to be
incorporated
by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act and
the exhibits thereto, is herein referred to as the "Registration
Statement"
and the basic prospectus included therein and relating to all
offerings of
securities under the Registration Statement, as supplemented by the
Prospectus
<PAGE>
Supplement, is herein referred to as the "Prospectus," except that
if such
basic prospectus is amended or supplemented on or prior to the date
on which
the Prospectus Supplement is first filed pursuant to Rule 424, the
term
"Prospectus" shall refer to the basic prospectus as so amended or
supplemented
and as supplemented by the Prospectus Supplement, in either case
including the
documents filed by JP Realty and the Operating Partnership with the
Commission
pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"),
that are incorporated by reference therein. As used herein, the
term
"Incorporated Documents" means the documents which at the time are
incorporated by reference in the Registration Statement, the
Prospectus
Supplement, the Prospectus, or any amendment or supplement thereto.
All references in this Agreement to financial statements
and
schedules and other information which is "contained," "included,"
"stated,"
"described" or "disclosed" in the Registration Statement or the
Prospectus (or
other references of like import) shall be deemed to mean and
include all such
financial statements and schedules and other information which is
or is deemed
to be incorporated by reference in the Registration Statement or
the
Prospectus, as the case may be, and all references in this
Agreement to
amendments or supplements to the Registration Statement, if any, or
the
Prospectus shall be deemed to mean and include, without limitation,
any
document filed under the 1934 Act which is or is deemed to be
incorporated by
reference in the Registration Statement or the Prospectus, as the
case may be.
The term "Subsidiaries" when used with respect to JP
Realty shall
mean Price Financing Partnership, L.P., a Delaware limited
partnership (the
"Financing Partnership"), the partnerships in which the Operating
Partnership
and JP Realty own legal or beneficial general or limited
partnership interests
(the "Surviving Partnerships"), Price GP Corp., a Delaware
corporation, Price
Capital Corp., a Delaware corporation, BTS Properties, L.C., a Utah
limited
liability company and any partnership in which JP Realty, directly
or
indirectly, owns a limited or general partner interest. The
Surviving
Partnerships, the Operating Partnership and the Financing
Partnership are
collectively referred to as the "Partnerships."
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Operating
Partnership and JP Realty. Each of the Operating Partnership and
JP Realty
represents and warrants to each Underwriter as of the date hereof
and as of
the Closing Time referred to in Section 2(b) hereof, and agrees
with each
Underwriter as follows:
(i) Compliance with Registration Requirements. Each of
the
Operating Partnership, JP Realty and the transactions contemplated
by this
Agreement meet the requirements for using Form S-3 under the 1933
Act. The
Registration Statement in the form in which it became effective and
also in
such form as it may be when any post-effective amendment thereto
shall become
effective and the Prospectus and any supplement or amendment
thereto,
including the Prospectus Supplement, when filed with the Commission
under Rule
2
<PAGE>
424(b) under the 1933 Act and at Closing Time, complied and will
comply in all
material respects with the provisions of the 1933 Act and does not
and will
not at any such times contain an untrue statement of a material
fact or omit
to state a material fact required to be stated therein or necessary
to make
the statements therein (in the case of the Prospectus and
Prospectus
Supplement, in the light of the circumstances under which they were
made) not
misleading, except that this representation and warranty does not
apply to
statements in or omissions from the Registration Statement or the
Prospectus
or any supplement or amendment thereto made in reliance upon and in
conformity
with information relating to the Underwriters furnished to the
Operating
Partnership or JP Realty in writing by or on behalf of the
Underwriters
expressly for use therein.
(ii) Incorporated Documents. The Incorporated Documents
heretofore
filed, when they were filed (or, if any amendment with respect to
any such
document was filed, when such amendment was filed), conformed in
all material
respects with the requirements of the 1933 Act and the 1934 Act and
the rules
and regulations thereunder; any further Incorporated Documents so
filed will,
when they are filed, conform in all material respects with the
requirements of
the 1933 Act and the 1934 Act and the rules and regulations
thereunder; and no
such document when it was filed (or, if an amendment with respect
to any such
document was filed, when such amendment was filed), contained an
untrue
statement of a material fact or omitted to state a material fact
required to
be stated therein or necessary in order to make the statements
therein, in the
light of the circumstances in which they were made, not misleading.
(iii) Good Standing of the Operating Partnership. The
Operating
Partnership is a limited partnership duly organized, validly
existing and in
good standing under the laws of the State of Maryland, with full
power and
authority to own, lease and operate its properties and to conduct
its business
as described in the Registration Statement and the Prospectus, and
is duly
registered or qualified to conduct its business and is in good
standing in
each jurisdiction or place where the nature of its properties or
the conduct
of its business requires such registration or qualification, except
where the
failure so to register or qualify would not have a material adverse
effect on
the condition (financial or other), business, properties, net worth
or results
of operations of the Operating Partnership, JP Realty and the
Subsidiaries
taken as a whole (a "Material Adverse Effect"); and all of the
partnership
interests in the Operating Partnership are validly issued and fully
paid.
(iv) Good Standing of JP Realty. JP Realty is a
corporation duly
organized and validly existing in good standing under the laws of
the State of
Maryland with full corporate power and authority to own, lease and
operate its
properties and to conduct its business as described in the
Registration
3
<PAGE>
Statement and the Prospectus, and is duly registered and qualified
to conduct
its business and is in good standing in each jurisdiction or place
where the
nature of its properties or the conduct of its business requires
such
registration or qualification, except where the failure so to
register or
qualify would not have a Material Adverse Effect.
(v) Good Standing of Subsidiaries. The Partnerships,
Price Capital
Corp., Price GP Corp. and BTS Properties, L.C. constitute all of JP
Realty's
subsidiaries. Each Subsidiary (other than the Operating
Partnership which is
covered in paragraph (iii) above) is a general or limited
partnership or
corporation duly organized, validly existing and in good standing
in the
jurisdiction of its organization, with full power and authority to
own, lease
and operate its properties and to conduct its business as described
in the
Registration Statement and the Prospectus, and is duly registered
or qualified
to conduct its business and is in good standing in each
jurisdiction or place
where the nature of its properties or the conduct of its business
requires
such registration or qualification, except where the failure so to
register or
qualify would not have a Material Adverse Effect; all the
outstanding shares
of capital stock of each of the Subsidiaries that is a corporation
have been
duly authorized and validly issued, are fully paid and
nonassessable, all of
the partnership interests in each Subsidiary that is a partnership
are validly
issued and fully paid; and except as described in the Registration
Statement,
the Prospectus (and any amendment or supplement thereto), including
in any
Incorporated Document, and Exhibit A hereto, all of such shares and
interests
in the Subsidiaries owned by the Operating Partnership and JP
Realty are owned
by the Operating Partnership and JP Realty directly, or indirectly
through one
of the other Subsidiaries, free and clear of any lien, adverse
claim, security
interest, equity or other encumbrance.
(vi) Capitalization. The authorized, issued and
outstanding
capitalization of the Operating Partnership is as set forth in the
Prospectus
under "Capitalization."
(vii) Absence of Proceedings. There are no legal or
governmental
proceedings pending or, to the knowledge of the Operating
Partnership and JP
Realty, threatened, against the Operating Partnership, JP Realty or
any of the
Subsidiaries, or to which the Operating Partnership, JP Realty or
any of the
Subsidiaries, or to which any of their respective properties is
subject, that
are required to be described in the Registration Statement or the
Prospectus
but are not described as required, and there are no agreements,
indentures,
leases or other instruments that are required to be described in
the
Registration Statement or the Prospectus or to be filed as an
exhibit to the
Registration Statement or any Incorporated Document that are not
described or
filed as required by the 1933 Act or the 1934 Act.
4
<PAGE>
(viii) Absence of Violations and Defaults. None of the
Operating
Partnership, JP Realty or any of the Subsidiaries is (i) in
violation of its
certificate or articles of incorporation, by-laws, partnership
agreements, or
other organizational documents, or (ii) in violation of any
applicable law,
ordinance, administrative or governmental rule or regulation or of
any decree
of any court or governmental agency or body having jurisdiction
over the
Operating Partnership, JP Realty or any of the Subsidiaries, or
(iii) in
default in the performance of any material obligation, agreement or
condition
contained in any bond, debenture, note or any other evidence of
indebtedness
or in any material agreement, indenture, lease or other instrument
to which
the Operating Partnership, JP Realty or any of the Subsidiaries is
a party or
by which any of them or any of their respective properties may be
bound, which
violation or default, in the case of clauses (ii) and (iii) would
have a
Material Adverse Effect.
(ix) Absence of Further Requirements and Conflicts.
Neither the
issuance and sale of the Securities, the execution, delivery or
performance of
this Agreement by the Operating Partnership and JP Realty nor the
consummation
by the Operating Partnership of the transactions contemplated
hereby (i)
requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body,
administrative agency
or other governmental body, agency or official (except such as may
be required
for the registration of the Securities under the 1933 Act and the
1934 Act,
all of which have been or will be effected in accordance with this
Agreement
and except for qualification of the Indenture under the 1939 Act),
(ii)
conflicts or will conflict with or constitutes or will constitute
a breach of,
or a default under, the certificate or articles of incorporation,
by-laws,
partnership agreements, or other organizational documents, of the
Operating
Partnership, JP Realty or any of the Subsidiaries or (iii)
conflicts or will
conflict with or constitutes or will constitute a breach of, or a
default
under, any agreement, indenture, lease or other instrument to which
the
Operating Partnership, JP Realty or any of the Subsidiaries is a
party or by
which any of them or any of their respective properties may be
bound, or will
result in the creation or imposition of any lien, charge or
encumbrance upon
any property or assets of the Operating Partnership, JP Realty or
any of the
Subsidiaries pursuant to the terms of any agreement or instrument
to which any
of them is a party or by which any of them may be bound or to which
any of the
property or assets of any of them is subject.
(x) Independent Accountants. The accountants, Price
Waterhouse
LLP, who have certified the financial statements included or
incorporated by
reference in the Registration Statement and the Prospectus (or any
amendment
or supplement thereto) are independent public accountants as
required by the
1933 Act.
(xi) Financial Statements. The financial statements,
together with
related schedules and notes, included or incorporated by reference
in the
Registration Statement and the Prospectus (and any amendment or
supplement
thereto), present fairly in all material respects the consolidated
financial
position, results of operations and changes in financial position
of the
Operating Partnership and its Subsidiaries on the basis stated in
the
Registration Statement at the respective dates or for the
respective periods
to which they apply; and such statements and related schedules and
notes have
been prepared in accordance with generally accepted accounting
principles
consistently applied throughout the periods involved, except as
disclosed
therein. The pro forma financial statements included and/or
incorporated by
reference in the Registration Statement and the Prospectus, and
other pro
5
<PAGE>
forma financial information, if any, included and/or incorporated
therein
comply in all material respects with the applicable accounting
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
that data and the assumptions used in the preparation thereof are
reasonable.
(xii) Authorization of the Indenture. The Indenture has
been duly
authorized by JP Realty on behalf of the Operating Partnership and
duly
qualified under the 1939 Act and, when duly executed and delivered
by the
Operating Partnership and the Trustee, will constitute a valid and
binding
agreement of the Operating Partnership, enforceable against the
Operating
Partnership in accordance with its terms, except as the enforcement
thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all
laws relating to fraudulent transfers), reorganization, moratorium
or similar
laws affecting enforcement of creditors' rights generally and
except as
enforcement thereof is subject to general principles of equity
(regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(xiii) Authorization of the Securities. The Securities
have been
duly authorized by JP Realty on behalf of the Operating Partnership
and, at
the Closing Time, will have been duly executed by the Operating
Partnership.
Such Securities, when authenticated, issued and delivered in the
manner
provided for in the Indenture and delivered against payment of the
purchase
price therefor as provided in this Agreement, will constitute valid
and
binding obligations of the Operating Partnership, enforceable
against the
Operating Partnership in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including,
without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors'
rights generally and except as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is
considered in a
proceeding in equity or at law), and will be in the form
contemplated by, and
entitled to the benefits of, the Indenture.
(xiv) Description of the Securities and the Indenture.
The
Securities and the Indenture will conform in all material respects
to the
respective statements relating thereto contained in the Prospectus
and will be
in substantially the respective forms filed or to be filed with the
Commission.
(xv) Authorization of this Agreement. This Agreement
has been
duly authorized by JP Realty on its own behalf and on behalf of the
Operating Pa
rtnership, and has been duly executed and delivered by each of the
Operating
Partnership and JP Realty.
6
<PAGE>
(xvi) Qualification as a REIT. JP Realty is organized
in
conformity with the requirements for qualification as a real estate
investment
trust under the Internal Revenue Code of 1986, as amended (the
"Code"), and
the present and contemplated method of operation of JP Realty and
the
Operating Partnership does and will enable JP Realty to meet the
requirements
for taxation as a real estate investment trust under the Code.
(xvii) No Material Adverse Change in Business. Except
as disclosed
in the Registration Statement and the Prospectus, subsequent to the
respective
dates as of which such information is given in the Registration
Statement and
the Prospectus, none of the Operating Partnership, JP Realty or any
of the
Subsidiaries has incurred any liability or obligation, direct or
contingent,
or entered into any transaction, not in the ordinary course of
business, that
is material to the Operating Partnership, JP Realty and the
Subsidiaries taken
as a whole, and there has not been any material change in the
capitalization,
or material increase in the short-term debt or long-term debt, of
the
Operating Partnership or JP Realty and the Subsidiaries taken as a
whole, or
any material adverse change in the condition (financial or other),
business,
net worth or results of operations of the Operating Partnership, JP
Realty and
the Subsidiaries taken as a whole.
(xviii) Title Insurance. The Operating Partnership and
each of the
other Partnerships has title insurance (ALTA extended coverage of
ALTA Form 9)
on all properties and assets described in the Prospectus as owned
by it in an
amount at least equal to the sum of (a) the cost of acquisition of
such
property or assets and (b) the cost of construction of the
improvements on
such properties at the time of acquisition.
(xix) Insurance. Each of the Operating Partnership and
JP Realty
is insured by insurers of recognized financial responsibility
against such
losses and risks and in such amounts as are prudent and customary
in the
business in which it is engaged or proposes to engage; neither the
Operating
Partnership nor JP Realty has been refused any insurance coverage
sought or
applied for; and neither the Operating Partnership nor JP Realty
has reason to
believe that it will not be able to renew its existing insurance
coverage as
and when such coverage expires or to obtain similar coverage from
similar
insurers as may be necessary to continue its business at a cost
that would not
have a Material Adverse Effect.
(xx) Title to Property. The Operating Partnership, JP
Realty and
the Subsidiaries have good and marketable title to all property
(real and
personal) listed in the Prospectus or in the Incorporated Documents
as being
owned by it, free and clear of all liens, claims, security
interests or other
encumbrances; except, such as are described in the Registration
Statement and
the Prospectus or in the Incorporated Documents or in any document
filed as an
exhibit to the Registration Statement, and such as do not
materially impair
the value of, or will not result in the forfeiture or reversion of
the title
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<PAGE>
to, such property. All the property described in the Prospectus as
being held
under lease by the Operating Partnership, JP Realty or the
Subsidiaries is
held by it under valid, subsisting and enforceable leases.
(xxi) Possession of Licenses and Permits. The Operating
Partnership, JP Realty and the Subsidiaries, directly or
indirectly, possess
such certificates, authorities or permits issued by the appropriate
state,
federal or foreign regulatory agencies or bodies necessary to
conduct the
business now operated by them (except for such certificates,
authorities or
permits that would not have a Material Adverse Effect), as
described in the
Prospectus, and none of the Operating Partnership, JP Realty or any
of the
Subsidiaries has received any notice of proceedings relating to the
revocation
or modification of any such certificate, authority or permit which,
singly or
in the aggregate, if the subject of an unfavorable decision, ruling
or
finding, would have a Material Adverse Effect.
(xxii) Maintenance of Internal Accounting Controls. JP
Realty
maintains a system of internal accounting controls sufficient to
provide
reasonable assurances 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; and (iii) access to assets is permitted only in accordance
with
management's general or specific authorization.
(xxiii) Investment Company. The Operating Partnership
is not now,
and, after sale of the Securities as provided hereunder and
application of the
net proceeds from such sale as described in the Prospectus under
the caption
"Use of Proceeds," will not be, an "investment company" within the
meaning of
the Investment Company Act of 1940, as amended.
(xxiv) Environmental Laws. To the best of their
knowledge, except
as described in the Registration Statement and Prospectus, the
Operating
Partnership, JP Realty and the Subsidiaries (i) are in compliance
with any and
all applicable foreign, federal, state and local laws and
regulations relating
to the protection of human health and safety, the environment,
hazardous or
toxic substances or wastes, pollutants or contaminants
("Environmental Laws"),
(ii) have received all permits, licenses or other approvals under
applicable
Environmental Laws required in connection with their businesses,
properties or
assets as conducted or contemplated to be conducted as described in
the
Registration Statement, and (iii) are in compliance with all terms
and
conditions of any such permit, license or approval, except where
such
noncompliance with Environmental Laws, failure to receive required
permits,
licenses or other approvals or failure to comply with the terms and
conditions
of such permits, licenses or approvals would not, singly or in the
aggregate,
have a Material Adverse Effect.
8
<PAGE>
(b) Officer's Certificates. Any certificate
signed by any
officer of the Operating Partnership, JP Realty or any of the
Subsidiaries
delivered to the Representative or to counsel for the Underwriters
shall be
deemed a representation and warranty to each Underwriter as to the
matters
covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the
representations and
warranties herein contained and subject to the terms and conditions
herein set
forth, the Operating Partnership agrees to sell to each
Underwriter, severally
and not jointly, and each Underwriter, severally and not jointly,
agrees to
purchase from the Operating Partnership, at the price set forth in
Schedule II
hereto, the aggregate principal amount of Securities set forth in
Schedule I
hereto opposite the name of such Underwriter plus any additional
number of
Securities that such Underwriter may become obligated to purchase
pursuant to
the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for,
and delivery
of certificates for, the Securities shall be made at the offices of
Skadden,
Arps, Slate, Meagher & Flom LLP, 919 Third Avenue, New York, New
York 10022,
or at such other place as shall be agreed upon by the
Representative and the
Operating Partnership, at 9:00 a.m. (New York time) on the third
(fourth, if
the pricing occurs after 4:30 p.m. (New York time) on any given
day) business
day after the date hereof (unless postponed in accordance with the
provisions
of Section 10), or such other time not later than ten business days
after such
date as shall be agreed upon by the Representative and the
Operating
Partnership (such time and date of payment and delivery being
herein called
"Closing Time").
Payment shall be made to the Operating Partnership
by wire
transfer of immediately available funds to a bank account
designated by the
Operating Partnership, against delivery to the Representative for
the
respective accounts of the Underwriters of the Securities to be
purchased by
them. It is understood that each Underwriter has authorized the
Representative, for its account, to accept delivery of, receipt
for, and make
payment of the purchase price for, the Securities which it has
severally
agreed to purchase. Merrill Lynch, individually and not as
representative of
the Underwriters, may (but shall not be obligated to) make payment
of the
purchase price for the Securities to be purchased by any
Underwriter whose
funds have not been received by the Closing Time, but such payment
shall not
relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Certificates
for the
Securities shall be in such denominations ($1,000 or integral
multiples
thereof) and registered in such names as the Representative may
request in
writing at least one full business day before the Closing Time.
The
Securities will be made available for examination and packaging by
the
Representative in the City of New York not later than 10:00 a.m.
(New York
time) on the business day prior to the Closing Time.
SECTION 3. Covenants. Each of the Operating Partnership
and JP
Realty covenants with each Underwriter as follows:
9
<PAGE>
(a) Filing Prospectus Supplement. The Operating
Partnership will prepare, and file or transmit for filing with the
Commission
in accordance with Rule 424(b) of the 1933 Act Regulations, a
Prospectus
Supplement relating to the Securities, and will file such
Prospectus
Supplement with the Commission within the time period prescribed by
Rule
424(b).
(b) Compliance with Securities Regulations and
Commission
Requests. The Operating Partnership will advise you promptly and,
if
requested by you, will confirm such advice in writing: (i) of any
request by
the Commission for amendment of or a supplement to the Registration
Statement
or the Prospectus or for additional information; (ii) of the
issuance by the
Commission of any stop order suspending the effectiveness of the
Registration
Statement or of the suspension of qualification of the Securities
for offering
or sale in any jurisdiction or the initiation of any proceeding for
such
purpose; and (iii) within the period of time referred to in
paragraph (e)
below, of any change in either of the Operating Partnership's or JP
Realty's
condition (financial or other), business, properties, net worth or
results of
operations, or of the happening of any event, which makes any
statement of a
material fact made in the Registration Statement or the Prospectus
(as then
amended or supplemented) untrue or which requires the making of any
additions
to or changes in the Registration Statement or the Prospectus (as
then amended
or supplemented) in order to state a material fact required by the
1933 Act to
be stated therein or necessary in order to make the statements
therein not
misleading, or of the necessity to amend or supplement the
Prospectus (as then
amended or supplemented) to comply with the 1933 Act or any other
law. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Operating
Partnership and JP
Realty will use reasonable efforts to obtain the withdrawal of such
order at
the earliest possible time.
(c) Delivery of Registration Statements. The
Operating
Partnership will furnish or make available to you, without charge
(i) one
conformed copy of the Registration Statement as originally filed
with the
Commission and of each amendment thereto, including financial
statements and
all exhibits to the Registration Statement, (ii) such number of
conformed
copies of the Registration Statement as originally filed and of
each amendment
thereto, but without exhibits, as you may request, (iii) such
number of copies
of the Incorporated Documents, without exhibits, as you may
request, and (iv)
one copy of the exhibits to the Incorporated Documents. The copies
of the
Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted
copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent
permitted by Regulation S-T.
10
<PAGE>
(d) Filing of Amendments. The Operating
Partnership and JP
Realty will not file any amendment to the Registration Statement or
make any
amendment or supplement to the Prospectus or, prior to the end of
the period
of time referred to in the first sentence in subsection (e) below,
file any
document which, upon filing becomes an Incorporated Document, of
which you
shall not previously have been advised or to which, after you shall
have
received a copy of the document proposed to be filed, you shall
reasonably
object within 24 hours of receipt.
(e) Delivery of Prospectuses; Continued Compliance
with
Securities Laws. As soon as possible after the execution and
delivery of this
Agreement and thereafter from time to time for such period as in
the opinion
of counsel for the Underwriters a prospectus is required by the
1933 Act to be
delivered in connection with sales by the Underwriters or any
dealer, the
Operating Partnership will expeditiously deliver to the
Underwriters and each
dealer, without charge, as many copies of the Prospectus (and of
any amendment
or supplement thereto) as you may request. The Operating
Partnership consents
to the use of the Prospectus (and of any amendment or supplement
thereto) in
accordance with the provisions of the 1933 Act and with the
securities or Blue
Sky laws of the jurisdictions in which the Securities are offered
by the
Underwriters and by all dealers to whom Securities may be sold,
both in
connection with the offering and sale of the Securities and for
such period of
time thereafter as the Prospectus is required by the 1933 Act to be
delivered
in connection with sales by any Underwriter or dealer. If during
such period
of time any event shall occur that in the judgment of the Operating
Partnership or in the opinion of counsel for the Underwriters is
required to
be set forth in the Prospectus (as then amended or supplemented) or
should be
set forth therein in order to make the statements therein, in the
light of the
circumstances under which they were made, not misleading, or if it
is
necessary to supplement or amend the Prospectus (or to file under
the 1934 Act
any document which, upon filing, becomes an Incorporated Document)
in order to
comply with the 1933 Act or any other law, the Operating
Partnership will
forthwith prepare and, subject to the provisions of paragraph (d)
above, file
with the Commission an appropriate supplement or amendment thereto,
and will
expeditiously furnish to the Underwriters and dealers a reasonable
number of
copies thereof. In the event that the Operating Partnership and
you agree
that the Prospectus should be amended or supplemented, the
Operating
Partnership, if requested by you, will promptly issue a press
release
announcing or disclosing the matters to be covered by the proposed
amendment
or supplement. The Prospectus and any amendments or supplements
thereto
furnished to the Underwriters will be identical to the
electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except
to the extent permitted by Regulation S-T.
(f) Rule 158. The Operating Partnership will make
generally
available to its security holders as soon as practicable, but no
later than 90
days after the close of the Operating Partnership's fiscal year, an
earning
statement (in form complying with the provisions of Rule 158 of the
1933 Act)
covering a twelve-month period beginning not later than the first
of the
Operating Partnership's fiscal quarters next following the date on
which the
Prospectus Supplement is filed with the Commission pursuant to Rule
424(b)
under the 1933 Act.
11
<PAGE>
(g) Use of Proceeds. The Operating Partnership
will apply the
net proceeds from the sale of the Securities to be sold by it
hereunder in
accordance with the description set forth in the Prospectus.
(h) Reporting Requirements. The Operating
Partnership and JP
Realty, during the period when the Prospectus is required to be
delivered in
connection with sales of the Securities under the 1933 Act, will
each file all
documents required to be filed with the Commission pursuant to
Section 13, 14,
or 15 of the 1934 Act within the time periods required by the 1934
Act and the
rules and regulations thereunder.
SECTION 4. Payment of Expenses. (a) Expenses. The
Operating
Partnership will pay all expenses incident to the performance of
its
obligations under this Agreement, including (i) the preparation and
filing of
the Registration Statement (including financial statements and
exhibits) as
originally filed and of each amendment thereto, (ii) the printing
(or
reproduction) and delivery to the Underwriters of this Agreement
relating to
the Securities, any Agreement among Underwriters, the Indenture and
such other
documents as may be required in connection with the offering,
purchase, sale,
issuance or delivery of the Securities, (iii) the preparation,
issuance and
delivery of the certificates for the Securities to the
Underwriters, (iv) the
fees and disbursements of the Operating Partnership's counsel,
accountants and
other advisors, (v) the qualification of the Securities for
offering and sale
under the applicable securities laws and real estate syndication
laws of such
states and other jurisdictions of the United States as the
Representative
shall have designated, including filing fees and the reasonable
fees and
disbursements of counsel for the Underwriters in connection
therewith and in
connection with the preparation, printing and delivery of a Blue
Sky survey,
if any, and any supplement thereto, (vi) the printing (or
reproduction) and
delivery to the Underwriters of copies of the Registration
Statement as
originally filed and of each amendment thereto, of the preliminary
prospectus
and of the Prospectus and any amendments or supplements thereto,
(vii) the
fees and expenses of the Trustee, including the reasonable fees and
disbursements of counsel for the Trustee in connection with the
preparation of
the Indenture and the Securities, (viii) any fees payable in
connection with
the rating of the Securities, and (ix) the filing fees incident
to, and the
reasonable fees and disbursements of counsel to the Underwriters in
connection
with, a review by the National Association of Securities Dealers,
Inc. (the
"NASD") of the terms of the sale of the Securities, if any.
(b) Termination of Agreement. If this Agreement is
terminated
by the Representative in accordance with the provisions of Section
5 or
Section 9(a)(i) hereof, the Operating Partnership shall reimburse
the
Underwriters for all of their out-of-pocket expenses, including the
reasonable
fees and disbursements of counsel for the Underwriters.
12
<PAGE>
SECTION 5. Conditions of Underwriters' Obligations. The
obligations of the several Underwriters hereunder are subject to
the accuracy,
as of the date hereof and at Closing Time, of the representations
and
warranties of the Operating Partnership and JP Realty herein
contained or in
certificates of any officer or other representative of the
Operating
Partnership, JP Realty or any Subsidiary delivered pursuant to the
provisions
hereof, to the performance by the Operating Partnership and JP
Realty of its
covenants and other obligations hereunder, and to the following
further
conditions:
(a) Effectiveness of Registration Statement;
Filing of
Prospectus Supplement. At Closing Time, no stop order suspending
the
effectiveness of the Registration Statement shall have been issued
under the
1933 Act or proceedings therefor initiated or, to the knowledge of
the
Operating Partnership or JP Realty, threatened by the Commission.
The
Prospectus Supplement shall have been transmitted to the Commission
for filing
pursuant to Rule 424(b) of the 1933 Act within the prescribed time
period, and
prior to Closing Time, the Operating Partnership and JP Realty
shall have
provided evidence reasonably satisfactory to the Representative of
such timely
filing.
(b) Opinions of Counsel.
(1) Opinion of Rogers & Wells LLP. At Closing
Time, you shall
have received an opinion of Rogers & Wells LLP, counsel for the
Operating
Partnership and JP Realty, dated as of Closing Time and addressed
to you to
the effect that:
(i) Each of Price GP Corp. and Price Capital Corp.
has been
duly incorporated and is validly existing as a corporation in good
standing
under the laws of the State of Delaware, with corporate power and
authority to
own, lease, and operate its properties and to conduct its business
as
described in the Prospectus; and all the outstanding shares of
capital stock
of each of Price GP Corp. and Price Capital Corp. have been duly
authorized
and validly issued, are fully paid and nonassessable. To the best
of such
counsel's knowledge, all of the issued and outstanding stock of
such
corporations are owned by JP Realty, directly or through
subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim
or equity.
(ii) The Financing Partnership is a limited
partnership duly
organized and validly existing in good standing under the laws of
the State of
Delaware, with full partnership power and authority to own, lease,
and operate
its properties and to conduct its business as described in the
Prospectus. To
the best of such counsel's knowledge, all of the issued and
outstanding
partner interests of the Financing Partnership are held of record
by the
Operating Partnership or Price GP Corp., in each case, free and
clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iii) This Agreement has been duly authorized by JP
Realty, on
its own behalf and on behalf of the Operating Partnership, and has
been duly
executed and delivered by each of the Operating Partnership and JP
Realty.
13
<PAGE>
(iv) The Indenture has been duly authorized by JP
Realty, on
behalf of the Operating Partnership and duly qualified under the
1939 Act and,
when duly executed and delivered by the Operating Partnership and
the Trustee,
will constitute a valid and binding agreement of the Operating
Partnership,
enforceable against the Operating Partnership in accordance with
its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency
(including, without limitation, all laws relating to fraudulent
transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors'
rights generally and except as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is
considered in a
proceeding in equity or at law).
(v) The Securities have been duly authorized by JP
Realty on
behalf of the Operating Partnership and, at the Closing Time, will
have been
duly executed by the Operating Partnership and, when authenticated,
issued and
delivered in the manner provided for in the Indenture and delivered
against
payment of the purchase price therefor as provided in this
Agreement, will
constitute valid and binding obligations of the Operating
Partnership,
enforceable against the Operating Partnership in accordance with
their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency
(including, without limitation, all laws relating to fraudulent
transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors'
rights generally and except as enforcement thereof is subject to
general
principles of equity (regardless of whether enforcement is
considered in a
proceeding in equity or at law), and will be in the form
contemplated by, and
entitled to the benefits of, the Indenture.
(vi) The Securities and the Indenture conform as to
legal
matters in all material respects to the descriptions thereof
contained in the
Prospectus.
(vii) Neither the issuance and sale of the
Securities, the
execution, delivery or performance of this Agreement by each of the
Operating
Partnership and JP Realty nor the consummation by the Operating
Partnership
and JP Realty of the transactions contemplated hereby (A) requires
any
consent, approval, authorization or other order of or registration
or filing
with, any court, regulatory body, administrative agency or other
governmental
body, agency or official (except such as may be required for the
registration
of the Securities under the 1933 Act and the 1934 Act, all of which
have been
or will be effected in accordance with this Agreement and except
for
qualification of the Indenture under the 1939 Act) or (B) conflicts
or will
conflict with or constitutes or will constitute a breach of, or a
default
under, the certificate or articles of incorporation, by-laws,
partnership
agreements, or other organizational documents, of the Operating
Partnership,
JP Realty, Price Capital Corp., Price GP Corp. or the Financing
Partnership.
(viii) The Registration Statement (except for the
financial
statements and the notes thereto and the schedules and other
financial data
included or incorporated by reference therein, as to which such
counsel need
not express any opinion) at the time of effectiveness thereof
complied as to
form in all material respects with the requirements of the 1933
Act; and to
the best of such counsel's knowledge, each of the Incorporated
Documents
(except for the financial statements and the notes thereto and the
schedules
and other financial data included therein, as to which counsel need
not
express any opinion) at the time of filing thereof with the
Commission or at
the time of effectiveness, as the case may be, complied as to form
in all
material respects with the 1934 Act and the rules and regulations
of the
Commission thereunder.
14
<PAGE>
(ix) To the best of such counsel's knowledge (A)
other than as
described, incorporated by reference or contemplated in the
Registration
Statement or the Prospectus, there are no legal or governmental
proceedings
pending or threatened against each of the Operating Partnership and
JP Realty,
or to which each of the Operating Partnership and JP Realty is
subject, which
are required to be described in the Registration Statement or
Prospectus and
(B) there are no agreements, indentures, leases or other
instruments, that are
required to be described in the Registration Statement or
Prospectus or to be
filed as an exhibit to the Registration Statement or any
Incorporated Document
that are not described or filed as required.
(x) The information in the Prospectus under the
heading
"Federal Income Tax Considerations," to the extent that it
constitutes matters
of law, summaries of legal matters, documents or legal conclusions,
has been
reviewed by such counsel and is correct in all material respects.
(xi) JP Realty is organized in conformity with the
requirements for qualification as a real estate investment trust
under the
Code, and its present and proposed method of operation will enable
it to meet
the requirements for qualification and taxation as a real estate
investment
trust under the Code.
(xii) None of the Operating Partnership, JP Realty
or any of
the Subsidiaries is an "investment company" or an entity
"controlled" by an
"investment company" as such terms are defined in the Investment
Company Act
of 1940, as amended.
(xiii) Such counsel shall state that it has
received an order
of effectiveness from the staff of the Commission with respect to
the
Registration Statement, and, to the best of such counsel's
knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been
issued under the 1933 Act or proceedings thereof initiated or
threatened by
the Commission.
In rendering such opinion, such counsel may state
that they
express no opinion as to the laws of any jurisdiction other than
the laws of
the State of New York, the General Corporation Law of the State of
Delaware
and the federal laws of the United States. Such counsel may rely,
as to all
matters governed by the laws of jurisdictions other than the laws
of the State
of New York, the federal laws of the United States and the
corporate laws of
the State of Delaware, upon opinions of other counsel, who shall be
reasonably
satisfactory to counsel for the Underwriters, in which case the
opinion shall
also be addressed to the Underwriters. Such counsel may state that
they have
examined originals or copies, certified or otherwise identified of
such
records of the Operating Partnership, JP Realty and the
Subsidiaries,
certificates of public officials, certificates of officers or other
representatives of the Operating Partnership, JP Realty and the
Subsidiaries
and such other documents, certificates and records as they have
deemed
necessary or appropriate as a basis for their opinions. Such
counsel need
express no opinion as to the enforceability of forum selection
clauses in the
federal courts. For purposes of such opinion, the word
"subsidiaries," shall
not include the Surviving Partnerships.
(2) Opinion of David Sabey, Esq. You shall have
received the
favorable opinion, dated as of Closing Time, of David Sabey, Esq.,
Vice
President and General Counsel of JP Realty, in form and substance
satisfactory
to counsel for the Underwriters, to the effect that:
(i) To the best of such counsel's knowledge,
each of JP
Realty, Price GP Corp. and Price Capital Corp. is duly qualified as
a foreign
corporation to transact business and is in good standing in each
jurisdiction
in which such qualification is required, except where the failure
to so
qualify would not have a Material Adverse Effect.
15
<PAGE>
(ii) To the best of such counsel's knowledge, each
of the
Operating Partnership and the Financing Partnership is duly
qualified as a
foreign limited partnership to transact business and is in good
standing in
each jurisdiction in which such qualification is required, except
where the
failure to so qualify would not have a Material Adverse Effect.
(iii) Each Surviving Partnership has been duly
organized and
is validly existing as a partnership in good standing under the
laws of the
state of its formation with power and authority to own, lease and
operate its
properties and to conduct its business as described in the
Prospectus; each
Surviving Partnership, to the best of such counsel's knowledge, is
duly
qualified to transact business and is in good standing in each
jurisdiction in
which such qualification is required, except where the failure to
so qualify
would not have a Material Adverse Effect; each partnership
agreement of the
Surviving Partnerships is in full force and effect; all of the
issued and
outstanding general and limited partner interests of the Surviving
Partnerships, to the best of such counsel's knowledge, are owned by
the
Operating Partnership, directly or through subsidiaries, free and
clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity.
(iv) To the best of such counsel's knowledge, other
than as
described, incorporated by reference or contemplated in the
Registration
Statement or the Prospectus, there are no legal or governmental
proceedings
pending or threatened against the Subsidiaries, or to which the
Subsidiaries
or any of their property, is subject, which are required to be
described in
the Registration Statement or Prospectus.
(v) Neither the issuance and sale of the
Securities, the
execution, delivery or performance of this Agreement by the
Operating
Partnership and JP Realty nor the consummation by the Operating
Partnership
and JP Realty of the transactions contemplated hereby (A) conflicts
or will
conflict with or constitutes or will constitute a breach of, or a
default
under, the partnership agreements, or other organizational
documents, of BTS
Properties, L.C. or any Surviving Partnership or (B) conflicts or
will
conflict with or constitutes or will constitute a breach of, or a
default
under, any agreement, indenture, lease or other instrument known to
such
counsel to which the Operating Partnership, JP Realty or any of the
Subsidiaries is a party or by which any of them or any of their
respective
properties may be bound, or violates or will violate any statute,
law,
regulation or filing or judgement, injunction, order or decree
applicable to
the Operating Partnership, JP Realty or any of the Subsidiaries or
any of
their respective properties, or will result in the creation or
imposition of
any lien, charge or encumbrance upon any property or assets of the
Operating
Partnership, JP Realty or any of the Subsidiaries pursuant to the
terms of any
agreement or instruments known to such counsel to which any of them
is a party
or by which any of them may be bound or to which any of the
property or assets
of any of them is subject.
16
<PAGE>
In rendering his opinion as aforesaid, such counsel may
state that
he expresses no opinion as to the laws of any jurisdiction other
than the laws
of the State where such counsel is admitted and the federal laws of
the United
States. Such counsel may rely, as to all matters governed by the
laws of
other jurisdictions and the federal laws of the United States, upon
opinions
of other counsel, who shall be reasonably satisfactory to counsel
for the
Underwriters, in which case the opinion shall also be addressed to
the
Underwriters. Such counsel may state that they have examined
originals or
copies, certified or otherwise identified of such records of the
Operating
Partnership, JP Realty and the Subsidiaries, certificates of public
officials,
certificates of officers or other representatives of the Operating
Partnership, JP Realty and the Subsidiaries and such other
documents,
certificates and records as they have deemed necessary or
appropriate as a
basis for their opinions.
(3) Opinion of Piper & Marbury L.L.P. You shall have
received the
favorable opinion, dated as of Closing Time, of Piper & Marbury
L.L.P.,
Maryland counsel for the Operating Partnership and JP Realty, in
form and
substance satisfactory to counsel for the Underwriters, to the
effect that:
(i) JP Realty has been duly incorporated and is
validly
existing as a corporation in good standing under the laws of the
State of
Maryland and has the corporate power and authority to own, lease
and operate
its properties and to conduct its business as described in the
Prospectus and
to enter into and perform its obligations under this Agreement.
(ii) The Operating Partnership is a limited
partnership duly
organized and validly existing in good standing under the laws of
the State of
Maryland with partnership power and authority to own, lease and
operate its
properties and to conduct its business as described in the
Prospectus and to
enter into and perform its obligations under this Agreement;
assuming the
partnership agreement of the Operating Partnership has been
executed and
delivered by each of the partners thereto (either directly or by a
duly
authorized attorney-in-fact), the partnership agreement of the
Operating
Partnership is in full force and effect.
(iii) This Agreement has been duly authorized by JP
Realty, on
its own behalf and on behalf of the Operating Partnership and has
been duly
executed and delivered by each of the Operating Partnership and JP
Realty.
(iv) The execution, delivery and performance of
this
Agreement, consummation of the transactions contemplated herein and
compliance
by the Operating Partnership and JP Realty with their respective
obligations
hereunder will not result in any violation of the provisions of the
charter or
by-laws of JP Realty or the partnership agreement or certificate of
limited
partnership of the Operating Partnership, or any applicable law,
administrative regulation or, to such counsel's knowledge,
administrative or
court decree.
In rendering such opinion, such counsel may state
that they
express no opinion as to the laws of any jurisdiction other than
the laws of
the State of Maryland. Such counsel may state that they have
examined
originals or copies, certified or otherwise identified of such
records of the
Operating Partnership, JP Realty and its Subsidiaries, certificates
of public
officials, certificates of officers or other representatives of the
Operating
Partnership, JP Realty and its Subsidiaries and such other
documents,
certificates and records as they have deemed necessary or
appropriate as a
basis for their opinions.
17
<PAGE>
(4) Opinion of Skadden, Arps, Slate, Meagher & Flom LLP.
You shall
have received the favorable opinion, dated as of Closing Time, of
Skadden,
Arps, Slate, Meagher & Flom LLP, counsel for the Underwriters, in
form and
substance satisfactory to the Underwriters.
(5) 10b-5 Opinion. In giving their opinions required
by
subsections (b)(1) and (b)(4), respectively, of this Section,
Rogers & Wells
LLP and Skadden, Arps, Slate, Meagher & Flom LLP shall each
additionally state
that, based on conferences with officers or representatives of the
Operating
Partnership and JP Realty and the independent public accountants
for the
Operating Partnership and JP Realty at which the contents of the
Registration
Statement and Prospectus and related matters were discussed in
connection with
the preparation of the Prospectus and without independent
verification of the
facts, nothing has come to their attention that would lead them to
believe
that the Registration Statement (except for financial statements
and schedules
and other financial data included or incorporated by reference
therein, as to
which such counsel need 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 or that the Prospectus (except
for financial
statements and schedules and other financial data included or
incorporated by
reference therein, as to which such counsel need make no
statement), at the
date of the Prospectus Supplement or at Closing Time, included or
includes an
untrue statement of a material fact or omitted or omits to state a
material
fact necessary in order to make the statements therein, in the
light of the
circumstances under which they were made, not misleading. In
providing such
opinion, such counsel may state that they do not assume any
responsibility for
the accuracy, completion or fairness of the statements contained in
the
Registration Statement or the Prospectus or any amendment or
supplement
thereto, except, with respect to Rogers & Wells LLP only, for
statements made
under the heading "Federal Income Tax Considerations."
(c) Accountant's Comfort Letter. At the time of
execution of
this Agreement, the Representative shall have received from Price
Waterhouse
LLP a letter dated such date, in form and substance satisfactory to
the
Representative, to the effect that (i) they are independent public
accountants
with respect to the Operating Partnership and JP Realty and its
Subsidiaries
within the meaning of the 1933 Act and the 1933 Act Regulations,
(ii) it is
their opinion that the financial statements and supporting
schedules included
or incorporated by reference in the Registration Statement and
covered by
their opinions therein comply as to form in all material respects
with the
applicable accounting requirements of the 1933 Act and the 1933 Act
Regulations, (iii) based upon limited procedures set forth in
detail in such
letter, and except as otherwise set forth in such letter, nothing
has come to
their attention which causes them to believe that (A) at a
specified date not
more than three days prior to the time of execution of this
Agreement, there
has been any change in the capitalization of the Operating
Partnership,
increase in total indebtedness or any decreases in net assets of
the Operating
Partnership and its subsidiaries as compared with the amounts shown
in the
most recent balance sheet included or incorporated by reference in
the
Registration Statement or, during the period from the date of the
most recent
balance sheet included or incorporated by reference in the
Registration
Statement to a specified date not more than three days prior to the
time of
execution of this Agreement, there were any decreases, as compared
with the
corresponding period in the preceding year, in revenues or net
income of the
Operating Partnership and its subsidiaries, except in all instances
for
changes, increases or decreases which the Registration Statement
and the
Prospectus disclose have occurred or may occur or (B) the unaudited
pro forma
financial statements included in the Registration Statement and the
Prospectus
do not comply as to form in all material respects with the
applicable
accounting requirements of Rule 11-02 of Regulation S-X of the
Commission or
that the pro forma adjustments have not been properly applied to
the
historical amounts in the compilation of such statements and (iv)
in addition
to the examination referred to in their opinion and the limited
procedures
referred to in clause (iii) above, they have carried out certain
specified
procedures, not constituting an audit, with respect to certain
amounts,
percentages and financial information included in the Registration
Statement
and Prospectus that are specified by the Representative, and have
found such
amounts, percentages and financial information to be in agreement
with the
relevant accounting, financial and other records of the Operating
Partnership
identified in such letter.
18
<PAGE>
(d) Bring-down Comfort Letter. At Closing Time,
the
Representative shall have received from Price Waterhouse LLP a
letter, dated
as of Closing Time, to the effect that they reaffirm the statements
made in
the letter furnished pursuant to subsection (c) of this Section,
except that
the specified date referred to shall be a date not more than three
days prior
to Closing Time.
(e) Officers' Certificate. At Closing Time,
there shall
not have been, since the date hereof or since the respective dates
as of which
information is given in the Prospectus, any material adverse change
in the
condition, financial or otherwise, or in the earnings, business
affairs or
business prospects of the Operating Partnership, JP Realty and the
Subsidiaries taken as a whole, whether or not arising in the
ordinary course
of business, and the Representative shall have received a
certificate of the
President or a Vice President of JP Realty and of the chief
financial or chief
accounting officer of JP Realty, dated as of Closing Time, to the
effect that
(i) there has been no such material adverse change, (ii) the
representations
and warranties in Section 1(a) hereof are true and correct with the
same force
and effect as though expressly made at and as of Closing Time,
(iii) each of
JP Realty and the Operating Partnership has complied with all
agreements and
satisfied all conditions on its part to be performed or satisfied
at or prior
to Closing Time, and (iv) no stop order suspending the
effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose
have been instituted or are pending or are contemplated by the
Commission.
(f) Additional Documents. At Closing Time, counsel
for the
Underwriters shall have been furnished with such documents and
opinions as
they may reasonably require for the purpose of enabling them to
pass upon the
issuance and sale of the Securities as herein contemplated and
related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions,
herein contained; and all proceedings taken by JP Realty or the
Operating
Partnership in connection with the issuance and sale of the
Securities as
herein contemplated shall be reasonably satisfactory in form and
substance to
the Representative and counsel for the Underwriters.
(g) Maintenance of Rating. At Closing Time, the
Securities
shall be rated at least Baa2 by Moody's Investor's Service Inc. and
BBB- by
Standard and Poor's Ratings Group, a division of McGraw-Hill, Inc.,
and the
Operating Partnership shall have delivered to the Representative a
letter
dated the Closing Time, from each such rating agency, or other
evidence
satisfactory to the Representative, confirming that the Securities
have such
ratings; and since the date of this Agreement, there shall have not
occurred a
downgrading in the rating assigned to the Securities or any of the
Operating
Partnership's or JP Realty's other debt securities by any
"nationally
recognized statistical rating agency", as that term is defined by
the
Commission for purposes of Rule 436(g)(2) under the 1933 Act, and
no such
organization shall have publicly announced that it has under
surveillance or
review its rating of the Securities or any of the Operating
Partnership's or
JP Realty's other debt securities.
19
<PAGE>
All such opinions, certificates, letters and other
documents will be
in compliance with the provisions hereof only if they are
satisfactory in form
and substance to you and your counsel.
If any condition specified in this Section shall not have
been
fulfilled when and as required to be fulfilled, this Agreement may
be
terminated by the Representative by notice to the Operating
Partnership and JP
Realty at any time at or prior to Closing Time, and such
termination shall be
without liability of any party to any other party except as
provided in
Section 4 hereof and except that Sections 1, 6 and 7 shall survive
any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. JP Realty and
the
Operating Partnership each agree to indemnify and hold harmless
each
Underwriter and each person, if any, who controls any Underwriter
within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim,
damage and
expense whatsoever, as incurred, arising out of any untrue
statement or
alleged untrue statement of a material fact contained in the
Registration
Statement (or any amendment thereto), including all documents
incorporated
therein by reference, or the omission or alleged omission therefrom
of a
material fact required to be stated therein or necessary to make
the
statements therein not misleading or arising out of any untrue
statement or
alleged untrue statement of a material fact contained in any
preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto) or the
omission or alleged omission therefrom of a material fact necessary
in order
to make the statements therein, in the light of the circumstances
under which
they were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in
settlement of any litigation, or any investigation or proceeding by
any
governmental agency or body, commenced or threatened, or of any
claim
whatsoever based upon any such untrue statement or omission, or any
such
alleged untrue statement or omission (subject to Section 6(d)
below) if any
such settlement is effected with the written consent of the
indemnifying
party; and
(iii) against any and all expense whatsoever, as
incurred
(including, subject to Section 6(c) hereof, the reasonable fees and
disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in
investigating, preparing or defending against any litigation, or
any
investigation or proceeding by any governmental agency or body,
commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or
omission, or any such alleged untrue statement or omission, to the
extent that
any such expense is not paid under (i) or (ii) above;
20
<PAGE>
provided, however, that this indemnity agreement shall not apply to
any loss,
liability, claim, damage or expense to the extent arising out of
any untrue
statement or omission or alleged untrue statement or omission made
in reliance
upon and in conformity with written information furnished to JP
Realty or the
Operating Partnership by any Underwriter through Merrill Lynch
expressly for
use in the Registration Statement (or any amendment thereto) or the
Prospectus
(or any amendment or supplement thereto); and provided, further,
that this
indemnity agreement with respect to any preliminary prospectus
shall not inure
to the benefit of any Underwriter from whom the person asserting
any such
losses, liabilities, claims, damages or expenses purchased
Securities, or any
person controlling such Underwriter, if the Operating Partnership
sustains the
burden of proving that (i) if a copy of the Prospectus (as then
amended or
supplemented if the Operating Partnership and JP Realty shall have
furnished
any amendments or supplements thereto) was not sent or given by or
on behalf
of such Underwriter to such person, if such is required by law, at
or prior to
the written confirmation of the sale of such Securities to such
person, (ii)
the Prospectus (as so amended or supplemented) would have corrected
the defect
giving rise to such loss, liability, claim, damage or expense and
(iii) the
Operating Partnership satisfied its obligations pursuant to Section
3(e)
hereof to deliver a sufficient number of copies of such Prospectus
(as amended
or supplemented) to the Underwriters.
(b) Indemnification of JP Realty and the Operating
Partnership. Each Underwriter severally agrees to indemnify and
hold harmless
JP Realty, the Operating Partnership, its directors or partners, as
the case
may be, each of their officers who signed the Registration
Statement (or any
amendment thereto), and each person, if any, who controls JP Realty
or the
Operating Partnership within the meaning of Section 15 of the 1933
Act or
Section 20 of the 1934 Act against any and all loss, liability,
claim, damage
and expense described in the indemnity contained in subsection (a)
of this
Section, as incurred, but only with respect to untrue statements or
omissions,
or alleged untrue statements or omissions, made in the Registration
Statement
(or any amendment thereto) or the Prospectus (or any amendment or
supplement
thereto) in reliance upon and in conformity with written
information furnished
to JP Realty or the Operating Partnership by such Underwriter
through Merrill
Lynch expressly for use in the Registration Statement (or any
amendment
thereto) or such preliminary prospectus or the Prospectus (or any
amendment or
supplement thereto).
(c) Actions against Parties; Notification. Each
indemnified
party shall give notice as promptly as reasonably practicable to
each
indemnifying party of any action commenced against it in respect of
which
indemnity may be sought hereunder, but failure to so notify an
indemnifying
party shall not relieve such indemnifying party from any liability
hereunder
to the extent such indemnifying party is not materially prejudiced
as a result
thereof and in any event shall not relieve it from any liability
which it may
have otherwise than on account of this indemnity agreement. In the
case of
parties indemnified pursuant to Section 6(a)(1) above, counsel to
the
indemnified parties shall be selected by Merrill Lynch, and, in the
case of
parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified
parties shall be selected by JP Realty or the Operating
Partnership. An
indemnifying party may participate at its own expense in the
defense of any
such action; provided, however, that counsel to the indemnifying
party shall
not (except with the consent of the indemnified party) also be
counsel to the
indemnified party. In no event shall the indemnifying parties be
liable for
fees and expenses of more than one counsel (in addition to any
local counsel)
separate from their own counsel for all indemnified parties in
connection with
any one action or separate but similar or related actions in the
same
jurisdiction arising out of the same general allegations or
circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified
parties, settle or compromise or consent to the entry of any
judgment with
respect to any litigation, or any investigation or proceeding by
any
governmental agency or body, commenced or threatened, or any claim
whatsoever
in respect of which indemnification or contribution could be sought
under this
Section 6 or Section 7 hereof (whether or not the indemnified
parties are
actual or potential parties thereto), unless such settlement,
compromise or
consent (i) includes an unconditional release of each indemnified
party from
all liability arising out of such litigation, investigation,
proceeding or
claim and (ii) does not include a statement as to or an admission
of fault,
culpability or a failure to act by or on behalf of any indemnified
party.
21
<PAGE>
(d) Settlement without Consent if Failure to
Reimburse. If at
any time an indemnified party shall have requested an indemnifying
party to
reimburse the indemnified party for fees and expenses of counsel,
such
indemnifying party agrees that it shall be liable for any
settlement of the
nature contemplated by Section 6(a) effected without its written
consent if
(i) such settlement is entered into more than 45 days after receipt
by such
indemnifying party of the aforesaid request, (ii) such indemnifying
party
shall have received notice of the terms of such settlement at least
30 days
prior to such settlement being entered into and (iii) such
indemnifying party
shall not have reimbursed such indemnified party in accordance with
such
request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification
provided for in
Section 6 hereof is for any reason unavailable to or insufficient
to hold
harmless an indemnified party in respect of any losses,
liabilities, claims,
damages or expenses referred to therein, then each indemnifying
party shall
contribute to the aggregate amount of such losses, liabilities,
claims,
damages and expenses incurred by such indemnified party, as
incurred, (i) in
such proportion as is appropriate to reflect the relative benefits
received by
the Operating Partnership and JP Realty on the one hand and the
Underwriters
on the other hand from the offering of the Securities pursuant to
this
Agreement or (ii) if the allocation provided by clause (i) is not
permitted by
applicable law, in such proportion as is appropriate to reflect not
only the
relative benefits referred to in clause (i) above but also the
relative fault
of the Operating Partnership or JP Realty on the one hand and of
the
Underwriters on the other hand in connection with the statements or
omissions
which resulted in such losses, liabilities, claims, damages or
expenses, as
well as any other relevant equitable considerations.
The relative benefits received by the Operating
Partnership and JP
Realty on the one hand and the Underwriters on the other hand in
connection
with the offering of the Securities pursuant to this Agreement
shall be deemed
to be in the same respective proportions as the total net proceeds
from the
offering of the Securities pursuant to this Agreement (before
deducting
expenses) received by the Operating Partnership and the total
underwriting
discount received by the Underwriters, in each case as set forth on
the cover
of the Prospectus, bear to the aggregate initial public offering
price of the
Securities as set forth on such cover.
The relative fault of the Operating Partnership or JP
Realty on the
one hand and the Underwriters on the other hand shall be determined
by
reference to, among other things, whether any such 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 Operating
Partnership or
JP Realty or by the Underwriters and the parties' relative intent,
knowledge,
access to information and opportunity to correct or prevent such
statement or
omission.
The Operating Partnership, JP Realty and the Underwriters
agree that
it would not be just and equitable if contribution pursuant to this
Section 7
were determined by pro rata allocation (even if the Underwriters
were treated
as one entity for such purpose) or by any other method of
allocation which
does not take account of the equitable considerations referred to
above in
this Section 7. The aggregate amount of losses, liabilities,
claims, damages
and expenses incurred by an indemnified party and referred to above
in this
Section 7 shall be deemed to include any legal or other expenses
reasonably
incurred by such indemnified party in investigating, preparing or
defending
against any litigation, or any investigation or proceeding by any
governmental
agency or body, commenced or threatened, or any claim whatsoever
based upon
any such untrue or alleged untrue statement or omission or alleged
omission.
22
<PAGE>
Notwithstanding the provisions of this Section 7, no
Underwriter
shall be required to contribute any amount in excess of the amount
by which
the total price at which the Securities underwritten by it and
distributed to
the public were offered to the public exceeds the amount of any
damages which
such Underwriter has otherwise been required to pay by reason of
any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within
the meaning
of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an
Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of
the 1934 Act shall have the same rights to contribution as such
Underwriter,
and each director of JP Realty, each partner of the Operating
Partnership,
each officer or other representative of JP Realty or the Operating
Partnership
who signed the Registration Statement, and each person, if any, who
controls
JP Realty or the Operating Partnership within the meaning of
Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to
contribution as JP Realty or the Operating Partnership. The
Underwriters'
respective obligations to contribute pursuant to this Section 7 are
several in
proportion to the principal amount of Securities set forth opposite
their
respective names in Schedule I to this Agreement.
SECTION 8. Representations, Warranties and Agreements to
Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement or contained in certificates of officers or other
representatives of
each of the Operating Partnership or JP Realty or any of its
Subsidiaries
submitted pursuant hereto, shall remain operative and in full force
and
effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the
Operating
Partnership or JP Realty, and shall survive delivery of the
Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may
terminate
this Agreement by notice to the Operating Partnership and JP Realty
at any time
at or prior to Closing Time (i) if there has been, since the time
of execution
of this Agreement or since the respective dates as of which
information is
given in the Prospectus, any material adverse change in the
condition,
financial or otherwise, or in the earnings, business affairs or
business
prospects of the Operating Partnership and JP Realty, whether or
not arising
in the ordinary course of business, or (ii) if there has occurred
any material
adverse change in the financial markets in the United States or
elsewhere or
any outbreak of hostilities or escalation thereof or other calamity
or crisis
or any change or development involving a prospective change in
national or
international political, financial or economic conditions, in each
case the
effect of which is such as to make it, in the judgment of the
Representative,
impracticable to market the Securities or to enforce contracts for
the sale of
the Securities, or (iii) if trading in any securities of JP Realty
has been
suspended or materially limited by the Commission or the New York
Stock
Exchange, the American Stock Exchange or the Nasdaq National
Market, or if
trading generally on the New York Stock Exchange, the American
Stock Exchange
or the Nasdaq National Market has been suspended or materially
limited, or
minimum or maximum prices for trading have been fixed, or maximum
ranges for
prices for securities have been required, by said exchange or
market or by
order of the Commission, the NASD or any other governmental
authority, or if a
banking moratorium has been declared by federal or New York
authorities. As
used in this Section 9(a), the term "Prospectus" means the
Prospectus in the
form first used to confirm sales of the Securities.
23
<PAGE>
(b) Liabilities. If this Agreement is terminated
pursuant to
this Section, such termination shall be without liability of any
party to any
other party except as provided in Section 4 hereof and provided
further that
Sections 1, 6 and 7 shall survive termination and remain in full
force and
effect.
SECTION 10. Default by One or More of the Underwriters.
If one or
more of the Underwriters shall fail at Closing Time to purchase the
Securities
which it or they are obligated to purchase under this Agreement
(the
"Defaulted Securities"), the Representative shall have the right,
within 24
hours thereafter, to make arrangements for one or more of the
non-defaulting
Underwriters, or any other underwriters, to purchase all, but not
less than
all, of the Defaulted Securities in such amounts as may be agreed
upon and
upon the terms herein set forth; if, however, the Representative
shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10%
of the aggregate principal amount of the Securities to be
purchased, each of
the non-defaulting Underwriters shall be obligated, severally and
not jointly,
to purchase the full amount thereof in the proportions that their
respective
underwriting obligations hereunder bear to the underwriting
obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds
10% of the
aggregate principal amount of the Securities to be purchased, this
Agreement
shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve
any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in
a
termination of this Agreement, either the Representative or the
Operating
Partnership shall have the right to postpone Closing Time for a
period not
exceeding seven days in order to effect any required changes in the
Registration Statement or Prospectus or in any other documents or
arrangements.
As used herein, the term "Underwriter" includes any person
substituted for an
Underwriter under this Section 10.
SECTION 11. Notices. All notices and other
communications
hereunder shall be in writing and shall be deemed to have been duly
given if
mailed or transmitted by any standard form of telecommunication
(excluding
electronic mail). Notices to the Underwriters shall be directed to
the
Representative at North Tower, World Financial Center, New York,
New York
10281-1201, attention of Michael Profenius; notices to the
Operating
Partnership and JP Realty shall be directed to 35 Century Park-Way,
Salt Lake
City, Utah 84115, attention of John Price with a copy thereof to
Rogers &
Wells LLP, 200 Park Avenue, New York, NY 10166, Attention of Alan
L. Gosule,
Esq. and Jay L. Bernstein, Esq.
24
<PAGE>
SECTION 12. Parties. This Agreement shall each inure to
the
benefit of and be binding upon the Underwriters, the Operating
Partnership, JP
Realty and their respective successors. Nothing expressed or
mentioned in
this Agreement is intended or shall be construed to give any
person, firm or
corporation, other than the Underwriters, the Operating Partnership
and JP
Realty and their respective successors and the controlling persons
and
officers, directors and partners referred to in Sections 6 and 7
and their
heirs and legal representatives, any legal or equitable right,
remedy or claim
under or in respect of this Agreement or any provision contained
herein or
therein. This Agreement and all conditions and provisions hereof
and thereof
are intended to be for the sole and exclusive benefit of the
Underwriters, the
Operating Partnership and JP Realty and their respective
successors, and said
controlling persons and officers, directors and partners and their
heirs and
legal representatives, and for the benefit of no other person, firm
or
corporation. No purchaser of Securities from any Underwriter shall
be deemed
to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT
SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW
YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK TIME.
SECTION 14. Effect of Headings. The Article and Section
headings
herein and the Table of Contents are for convenience only and shall
not affect
the construction hereof.
25
<PAGE>
If the foregoing is in accordance with your understanding
of our
agreement, please sign and return a counterpart hereof, whereupon
this
instrument, along with all counterparts, will become a binding
agreement
between the Underwriters, the Operating Partnership and JP Realty
in
accordance with its terms.
Very truly yours,
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc., its
------------------------------
General Partner
By:/s/ M. SCOTT COLLINS
-------------------------------
Name: M. Scott Collins
Title: Vice President and
Chief Financial Officer
JP REALTY, INC.
By:/s/ M. SCOTT COLLINS
-------------------------------
Name: M. Scott Collins
Title: Vice President and
Chief Financial
Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
MORGAN STANLEY & CO. INCORPORATED
UBS SECURITIES LLC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ MICHAEL PROFENIUS
-------------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule I
hereto.
<PAGE>
SCHEDULE I
to
Purchase Agreement
Principal
Amount of
Name of Underwriter Securities
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $70,500,000
Goldman, Sachs & Co. $7,500,000
Lehman Brothers Inc. $7,500,000
Morgan Stanley & Co. Incorporated $7,500,000
UBS Securities LLC $7,500,000
Total $100,000,000
<PAGE>
Schedule II
to
Purchase Agreement
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
$100,000,000 7.29% Senior Notes due 2008
1. The initial public offering price of the Securities
shall be
99.3625% of the principal amount thereof.
2. The purchase price to be paid by the Underwriters for
the
Securities shall be 0.6375% of the principal amount thereof.
3. The interest rate on the Securities shall be 7.29% per
annum.
4. The Securities are redeemable at any time, from time to
time, at
the option of the Operating Partnership, in whole or in part, at a
redemption
price equal to the sum of (i) the principal amount of the
Securities being
redeemed plus accrued interest to the redemption date and (ii) the
Make-Whole
Amount (as defined in the Prospectus), if any.
5. Installments of principal of $250 will be paid on each
$1,000
principal amount of the Securities on each March 11 (a "Principal
Payment
Date"), commencing on March 11, 2005. The aggregate principal
payment on each
Principal Payment Date shall be equal to $25.0 million.
<PAGE>
Exhibit A to Purchase Agreement
Partially Owned Partnerships
Price Boise Company, Ltd.
Price Idaho Falls Company, Ltd.
Price James Company
Price Mackey Company
Provo Mall Development Company, Ltd.
Spokane Mall Development Company Limited Partnership
<PAGE>
Exhibit 4.6
[Form of Face of Note]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR
REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE
OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
7.29% SENIOR NOTES DUE 2008
REGISTERED PRINCIPAL AMOUNT
NO.: 1 $100,000,000
CUSIP No.:74144RAB8
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP, a limited
partnership
duly organized and existing under the laws of the State of Maryland
(hereinafter called the "Issuer"), for value received, hereby
promises to pay
to CEDE & CO. or registered assigns, upon presentation, the maximum
aggregate
principal sum of ONE HUNDRED MILLION DOLLARS ($100,000,000) in
installments of
TWENTY FIVE MILLION DOLLARS ($25,000,000) on each Principal Payment
Date,
commencing on March 11, 2005, at the office or agency of the
Issuer, and to
pay interest on the outstanding principal amount thereon from the
date of
issuance, or from and including the immediately preceding Interest
Payment
Date to which interest has been paid or duly provided for,
semi-annually in
arrears on March 11 and September 11 in each year, commencing
September 11,
1998, at the rate of 7.29% per annum, computed on the basis of a
360-day year
comprised of twelve 30-day months until the entire principal hereof
is paid or
made available for payment. Installments of principal on each
Principal
Payment Date shall be in an amount equal to $250 for each $1,000
principal
amount of Securities then outstanding.
If any Principal Payment Date or Interest Payment Date would
otherwise be
a day that is not a Business Day, such Principal Payment Date or
Interest
Payment Date will be postponed to the next succeeding Business Day.
The
principal so payable, and punctually paid or duly provided for on
any
Principal Payment Date will be paid to the Holders in whose names
this
Security (or one or more Predecessor Securities) is registered at
the close of
business on the 15th calendar day (whether or not a Business Day)
next
preceding such Principal Payment Date. The interest so payable,
and
punctually paid or duly provided for on any Interest Payment Date
will, as
provided for in the Indenture, be paid to the person 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 15th
calendar day (whether or not a Business Day) next preceding such
Interest
Payment Date. 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 either be paid to the Person 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 more than 15 days and not less than 10 days prior to
such Special
Record Date, or may be paid at any time in any other lawful manner
not
inconsistent with the requirements of any securities exchange on
which 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.
Payment of the principal of, or Make-Whole Amount, if
any, and
interest on, the Securities will be made at the office or agency of
the
Trustee maintained for that purpose in the City of New York as
provided in the
Indenture 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 Issuer payment of
interest may be
made by (i) check mailed to the address of the Person entitled
thereto as such
address shall appear in the Security Register or (ii) by wire
transfer of
funds to an account of the Person entitled thereto maintained
within the
United States; provided, however, that the Trustee shall have
received written
wire instructions from the Holder, by no later than the Regular
Record Date
for such Interest Payment Date. If this Security is in global
form, all such
payments will be made by wire transfer of immediately available
funds.
Securities of this series may be redeemed at any time at
the option
of the Issuer, in whole or in part, upon notice of not more than 60
nor less
than 30 days prior to the redemption date, at a Redemption Price
equal to the
sum of (i) the principal amount of the Securities being redeemed
plus accrued
and unpaid interest to the redemption date and (ii) the Make-Whole
Amount, if
any, with respect to such Securities.
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 IN THIS PLACE.
<PAGE>
Unless the Certificate of Authentication hereon has been
executed by
or on behalf of the Trustee by manual signature, this Security
shall not be
entitled to any benefit under the Indenture or be valid or
obligatory for any
purpose.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, JP Realty, Inc., the sole general
partner of the
Issuer, has caused this instrument to be duly executed on behalf of
the Issuer
and its corporate seal to be affixed and attested.
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc.,
its General Partner
ATTEST:
By: ______________________
(Corporate Seal)
Dated: By:
name:
title:
<PAGE>TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated
therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By: Dated:
Authorized Officer
<PAGE>
7.29% SENIOR NOTES DUE 2008
This Security is one of a duly authorized issue of
securities of the
Issuer designated as the $100,000,000 7.29% Senior Notes due 2008
(herein
called the "Securities"), issued and to be issued in one or more
series under
an Indenture, dated as of March 11, 1998, as supplemented by the
First
Supplemental Indenture, dated as of March 11, 1998, and as the same
may be
supplemented from time to time thereafter in accordance with the
terms thereof
(as so supplemented, herein called the "Indenture"), between the
Issuer and
The Chase Manhattan Bank, a banking corporation organized under the
laws of
the State of New York, 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 the 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 Issuer, 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 series designated on the first page
hereof,
limited in aggregate principal amount to $100,000,000.
As used herein:
"Make-Whole Amount" means, in connection with any
optional
redemption or accelerated payment of any Security being so redeemed
or
accelerated, 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 and the amount of any interest (exclusive of
interest accrued
to the date of redemption or accelerated payment) that would have
been payable
in respect of each 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 Securities being redeemed or paid, as calculated and
certified
by the Issuer to the Trustee in an Officers' Certificate.
"Reinvestment Rate" means 0.25% plus the arithmetic mean
of the
yields on treasury securities at a constant maturity for the most
recent week
under the heading "Week Ending" published in the most recent
Statistical
Release under the caption "Treasury Constant Maturities" for the
maturity
(rounded to the nearest month) corresponding to the remaining life
to
maturity, as of the payment date of the principal being redeemed or
paid. If
no maturity exactly corresponds to such maturity, yields for the
two published
maturities most closely corresponding to such maturity shall be
calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall
be interpolated or extrapolated from such yields on a straight-line
basis,
rounding in each of such relevant periods to the nearest month.
For the
purpose 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.
"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 under
the Indenture, then such other reasonably comparable index which
shall be
designated by the Issuer in an Officers' Certificate to the
Trustee.
The covenants set forth in Article 10 of the Indenture
and Sections
1010, 1011, 1012, 1013 ,1014 and 1015 of the First Supplemental
Indenture
shall be fully applicable to this Security.
The Indenture contains provisions for defeasance at any
time of (a)
the entire indebtedness of the Issuer on this Security and (b)
certain
restrictive covenants and the related defaults and Events of
Default
applicable to the Issuer, in each case, upon compliance by the
Issuer with
certain conditions set forth in the Indenture, which provisions
apply to this
Security.
If any Event of Default with respect to Securities of
this series
shall occur and be continuing, the principal of, and any premium
and
Make-Whole Amount, if any, on, the outstanding Securities of this
series may
be declared due and payable in the manner and with the effect
provided in the
Indenture.
As provided in and subject to the provisions of the
Indenture, the
Holder of this Security shall not have the right to institute any
proceeding
with respect to the Indenture or for the appointment of a receiver
or trustee
or for any other remedy thereunder, unless such Holder shall have
previously
given the Trustee written notice of a continuing Event of Default
with respect
to the Securities of this series, the Holders of not less than 25%
in
principal amount of the Securities of this series at the time
Outstanding
shall have made written request to the Trustee to institute
proceedings in
respect of such Event of Default as Trustee, offered the Trustee
indemnity
satisfactory to the Trustee, and the Trustee shall not have
received from the
Holders of a majority in principal amount of Securities of this
series at the
time Outstanding a direction inconsistent with such request, and
the Trustee
shall have failed to institute any such proceeding, for 60 days
after receipt
of such notice, request and offer of indemnity. The foregoing
shall not apply
to any suit instituted by the Holder of this Security for the
enforcement of
any payment of principal hereof (and premium or Make-Whole Amount,
if any) or
any interest thereon in respect thereon on or after the respective
due dates
expressed herein.
The Indenture permits, with certain exceptions as therein
provided,
the amendment thereof and the modification of the rights and
obligations of
the Issuer and the rights of the Holders of the Securities of each
series to
be affected under the Indenture at any time by the Issuer and the
Trustee with
the consent of the Holders of not less than a majority in principal
amount of
the Securities of each series at the time Outstanding affected
thereby. The
Indenture also contains provisions permitting the Holders of
specified
percentages in principal amount of the Securities of each series at
the time
Outstanding, on behalf of the Holders of all Securities of such
series, to
waive compliance by the Issuer with certain provisions of the
Indenture and
certain past defaults under the Indenture and their consequences.
Any such
consent or waiver by the Holder of this Security shall be
conclusive and
binding upon such Holder and upon all future Holders of this
Security and of
any Security issued upon the registration of transfer hereof or in
exchange
hereof or in lieu hereof, whether or not notations of such consent
or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of
this
Security or of the Indenture shall alter or impair the obligation
of the
Issuer, which is absolute and unconditional, to pay the principal
of, or
premium or Make-Whole Amount, if any, on, and interest on this
Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations
therein set forth, the transfer of this Security is registrable in
the
Security Register, upon surrender of this Security for registration
of
transfer at the office or agency of the Issuer in any Place of
Payment where
the principal of, or premium or Make-Whole Amount, if any, on, and
interest on
this Security are payable, duly endorsed by, or accompanied by a
written
instrument of transfer in form satisfactory to the Issuer and the
Security
Registrar duly executed by, the Holder hereof or his attorney duly
authorized
in writing, and thereupon one or more new Securities of this
series, of
authorized denominations and for the same aggregate principal
amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in
registered form
without coupons in denominations of $1,000 and any integral
multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set
forth, Securities of this series are exchangeable for a like
aggregate
principal amount of Securities of this series of a different
authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration
of
transfer or exchange, but the Issuer 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 Issuer, the Trustee and any agent of the Issuer 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 Issuer, the Trustee nor any such agent shall be affected by
notice to the
contrary.
All terms used in this Security not defined herein which
are defined
in the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS
SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee
on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP"
numbers to
be printed on the Securities of this series as a convenience to the
Holders of
such Securities. No representation is made as to the correctness
or accuracy
of such CUSIP numbers as printed on the Securities, and reliance
may be placed
only on the other identification numbers printed hereon.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
<PAGE>
Exhibit 4.8
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
Issuer
TO
THE CHASE MANHATTAN BANK
Trustee
------------------
Indenture
Dated as of March 11, 1998
------------------
Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
PARTIES
1
RECITALS OF THE ISSUER
1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
1
Act
2
Additional Amounts
2
Affiliate
2
Annual Service Charge
2
Authenticating Agent
2
Authorized Newspaper
2
Bankruptcy Law
2
Bearer Security
2
Board of Directors
2
Board Resolution
2
Business Day
3
CEDEL
3
Commission
3
Conversion Event
3
Corporate Trust Office
3
corporation
3
coupon
3
Custodian
3
Debt
3
Defaulted Interest
4
Dollar" or "$
4
DTC
4
ECU
4
Euroclear
4
European Communities
4
European Monetary System
4
Event of Default
4
Foreign Currency
4
GAAP
4
General Partner
4
Government Obligations
4
Holder
5
Indenture
5
Indexed Security
5
Interest
5
Interest Payment Date
5
Investment Grade
5
Issuer
6
Issuer Request" and "Issuer Order
6
Maturity
6
Officers' Certificate
6
Opinion of Counsel
6
Original Issue Discount Security
6
Outstanding
6
Paying Agent
7
Person
8
Place of Payment
8
Predecessor Security
8
Redemption Date
8
Redemption Price
8
Registered Security
8
Regular Record Date
8
Repayment Date
8
Repayment Price
8
Responsible Officer
8
Security
9
Security Register" and "Security Registrar
9
Significant Subsidiary
9
Special Record Date
9
Stated Maturity
9
Subsidiary
9
Trust Indenture Act" or "TIA
9
Trustee
9
United States
10
Unsecured Debt
10
Yield to Maturity
10
SECTION 102. Compliance Certificates and Opinions
10
SECTION 103. Form of Documents Delivered to Trustee
10
SECTION 104. Acts of Holders
11
SECTION 105. Notices, etc., to Trustee and Issuer
13
SECTION 106. Notice to Holders; Waiver
13
SECTION 107. Conflict with Trust Indenture Act
14
SECTION 108. Effect of Headings and Table of Contents
14
SECTION 109. Successors and Assigns
14
SECTION 110. Separability Clause
14
SECTION 111. Benefits of Indenture
14
SECTION 112. Governing Law
15
SECTION 113. Legal Holidays
15
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities
15
SECTION 202. Form of Trustee's Certificate of Authentication
15
SECTION 203. Securities Issuable in Global Form
16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series
17
SECTION 302. Denominations
21
SECTION 303. Execution, Authentication, Delivery and Dating
21
SECTION 304. Temporary Securities
23
SECTION 305. Registration, Registration of Transfer and
Exchange
25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
29
SECTION 307. Payment of Interest; Interest Rights Preserved
30
SECTION 308. Persons Deemed Owners
32
SECTION 309. Cancellation
32
SECTION 310. Computation of Interest
33
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
33
SECTION 402. Application of Trust Funds
34
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
SECTION 502. Acceleration of Maturity; Rescission and
Annulment
37
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee
38
SECTION 504. Trustee May File Proofs of Claim
38
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons
39
SECTION 506. Application of Money Collected
39
SECTION 507. Limitation on Suits
40
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest
and Additional Amounts
41
SECTION 509. Restoration of Rights and Remedies
41
SECTION 510. Rights and Remedies Cumulative
41
SECTION 511. Delay or Omission Not Waiver
41
SECTION 512. Control by Holders of Securities
41
SECTION 513. Waiver of Past Defaults
42
SECTION 514. Waiver of Usury, Stay or Extension Laws
42
SECTION 515. Undertaking for Costs
42
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults
43
SECTION 602. Certain Rights of Trustee
43
SECTION 603. Not Responsible for Recitals or Issuance of
Securities
45
SECTION 604. May Hold Securities
45
SECTION 605. Money Held in Trust
45
SECTION 606. Compensation and Reimbursement
45
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests
46
SECTION 608. Resignation and Removal; Appointment of
Successor
46
SECTION 609. Acceptance of Appointment by Successor
47
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business
48
SECTION 611. Appointment of Authenticating Agent
49
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders
51
SECTION 702. Reports by Trustee
51
SECTION 703. Reports by Issuer
51
SECTION 704. Issuer to Furnish Trustee Names and Addresses
of Holders
51
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Issuer and Sales,
Leases and Conveyances Permitted Subject
to Certain Conditions 52
SECTION 802. Rights and Duties of Successor Entity 52
SECTION 803. Officers' Certificate and Opinion of Counsel 53
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders 53
SECTION 902. Supplemental Indentures with Consent of Holders 54
SECTION 903. Execution of Supplemental Indentures 55
SECTION 904. Effect of Supplemental Indentures 56
SECTION 905. Conformity with Trust Indenture Act 56
SECTION 906. Reference in Securities to Supplemental
Indentures 56
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts 56
SECTION 1002. Maintenance of Office or Agency 57
SECTION 1003. Money for Securities Payments to Be Held in
Trust 58
SECTION 1004. Existence 59
SECTION 1005. Payment of Taxes and Other Claims 60
SECTION 1006. Provision of Financial Information 60
SECTION 1007. Statement as to Compliance 60
SECTION 1008. Additional Amounts 60
SECTION 1009. Waiver of Certain Covenants 61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article 62
SECTION 1102. Election to Redeem; Notice to Trustee 62
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed 62
SECTION 1104. Notice of Redemption 62
SECTION 1105. Deposit of Redemption Price 64
SECTION 1106. Securities Payable on Redemption Date 64
SECTION 1107. Securities Redeemed in Part 65
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article 65
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities 65
SECTION 1203. Redemption of Securities for Sinking Fund 66
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article 66
SECTION 1302. Repayment of Securities 66
SECTION 1303. Exercise of Option 67
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable 67
SECTION 1305. Securities Repaid in Part 68
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to
Effect Defeasance or Covenant Defeasance 69
SECTION 1402. Defeasance and Discharge 69
SECTION 1403. Covenant Defeasance 69
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance 70
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous
Provisions 71
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called 73
SECTION 1502. Call, Notice and Place of Meetings 73
SECTION 1503. Persons Entitled to Vote at Meetings 73
SECTION 1504. Quorum; Action 73
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings 74
SECTION 1506. Counting Votes and Recording Action of
Meetings 75
SECTION 1507. Evidence of Action Taken by Holders 76
SECTION 1508. Proof of Execution of Instruments 76
<PAGE>
Price Development Company, Limited Partnership
Reconciliation and tie between Trust Indenture Act of 1939, as
amended
(the "TIA") and Indenture, dated as of March 11, 1998
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1) 607
(a)(2) 607
(b) 607, 608
Sec. 312(a) 704
Sec. 312(c) 701
Sec. 313(a) 702
(c) 702
Sec. 314(a) 1006
(a)(4) 1007
(c)(1) 102
(c)(2) 102
(e) 102
Sec. 315(b) 601
Sec. 316(a) (last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
Sec. 317(a)(1) 503
(a)(2) 504
Sec. 318(a) 112
(c) 112
____________________
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
TIA, which
provides that the provisions of Sections 310 to and including 317
of the TIA
are a part of and govern every qualified indenture, whether or not
physically
contained therein.
<PAGE>
INDENTURE, dated as of March 11, 1998, between Price
Development
Company, Limited Partnership, a Maryland limited partnership (the
"Issuer"),
having its principal offices at 35 Century Park-Way, Salt Lake
City, Utah
84115 and The Chase Manhattan Bank, a banking corporation organized
under the
laws of the State of New York, as Trustee hereunder (the
"Trustee"), having
its Corporate Trust Office at 450 West 33rd Street, New York, New
York 10001,
Attention: Corporate Trust Administration.
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for
its lawful
purposes debt securities (hereinafter called the "Securities")
evidencing its
unsecured indebtedness, and has duly authorized the execution and
delivery of
this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at
the rates or
formulas, to mature at such times and to have such other provisions
as shall
be fixed as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of
1939, as amended (the "TIA"), that are deemed to be incorporated
into this
Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement
of the
Issuer, 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 (the "Holders"), it is mutually
covenanted
and agreed, for the equal and proportionate benefit of all Holders
of the
Securities or of the series thereof, 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:
(i) the terms defined in this Article have the meanings
assigned to
them in this Article, and include the plural as well as the
singular;
(ii) all other terms used herein which are defined in the
TIA, either
directly or by reference therein, have the meanings assigned to
them therein;
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(iii) all accounting terms not otherwise defined herein
have the
meanings assigned to them in accordance with GAAP; and
(iv) 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 Issuer in respect of certain
taxes
imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or
indirectly controlling or controlled by or under direct or indirect
common
control with such specified Person. For the purposes of this
definition,
"control" when used with respect to any specified Person means the
power to
direct the management and policies of such Person, directly or
indirectly,
whether through the ownership of voting securities, by contract or
otherwise;
and the terms "controlling" and "controlled" have meanings
correlative to the
foregoing.
"Annual Service Charge" as of any date means the amount which
is expensed
in any 12-month period for interest on Debt.
"Authenticating Agent" means any authenticating agent
appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the
English language
or in an official language of the country of publication,
customarily
published on each Business Day, whether or not published on
Saturdays, Sundays
or holidays, and of general circulation in each place in connection
with which
the term is used or in the financial community of each such place.
Whenever
successive publications are required to be made in Authorized
Newspapers, the
successive publications may be made in the same or in different
Authorized
Newspapers in the same city meeting the foregoing requirements and
in each
case on any Business Day.
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"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
General Partner
or any committee of such board of directors duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution of the Board
of Directors
certified by the Secretary or an Assistant Secretary of the General
Partner to
have been duly adopted by the Board of Directors and to be in full
force and
effect on the date of such certification, and delivered to the
Trustee.
"Business Day," when used with respect to any Place of Payment
or any
other particular location referred to in this Indenture or in the
Securities,
means, unless otherwise specified with respect to any Securities
pursuant to
Section 301, any day, other than a Saturday or Sunday, that is
neither a legal
holiday nor a day on which banking institutions in that Place of
Payment or
particular location are authorized or required by law, regulation
or executive
order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as
from time
to time constituted, created under the Securities Exchange Act of
1934, or, if
at anytime after execution of this instrument such Commission is
not existing
and performing the duties now assigned to it under the TIA, then
the body
performing such duties on such date.
"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 450
West 33rd
Street, New York, New York 10001, Attention: Corporate Trust
Administration.
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"corporation" includes corporations, associations,
partnerships, limited
liability companies, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of the Issuer or any Subsidiary means any indebtedness
of the
Issuer or any Subsidiary, whether or not contingent, in respect of
(i)
borrowed money or indebtedness 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
Issuer or any Subsidiary, (iii) the reimbursement obligations,
contingent or
otherwise, in connection with any letters of credit actually issued
or amounts
representing the balance deferred and unpaid of the purchase price
of any proper
ty except any such balance that constitutes an accrued expense or
trade
payable or (iv) any lease of property by the Issuer or any
Subsidiary as
lessee which is reflected on the Issuer's consolidated balance
sheet as a
capitalized lease in accordance with GAAP, in the case of items of
indebtedness under (i) through (iii) above to the extent that any
such items
(other than letters of credit) would appear as a liability on the
Issuer's
consolidated balance sheet in accordance with GAAP, and also
includes, to the
extent not otherwise included, any obligation by the Issuer or any
Subsidiary
to be liable for, or to pay, as obligor, guarantor or otherwise
(other than
for purposes of collection in the ordinary course of business),
indebtedness
of another person (other than the Issuer or any Subsidiary) (it
being
understood that Debt shall be deemed to be incurred by the Issuer
and its
Subsidiaries on a consolidated basis whenever the Issuer and its
Subsidiaries
on a consolidated basis shall create, assume, guarantee or
otherwise become
liable in respect thereof).
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or
currency of the United States of America as at the time shall be
legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company.
"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.
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"European Monetary System" means the European Monetary System
established
by the Resolution of December 5, 1978 of the Council of the
European
Communities.
"Event of Default" has the meaning specified in Section 501.
"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.
"General Partner" means JP Realty, Inc., a Maryland
corporation, as sole
general partner of the Issuer.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which
issued the
Foreign Currency in which the Securities of a particular series are
payable,
for the payment of which its full faith and credit is pledged or
(ii)
obligations of a Person controlled or supervised by and acting as
an agency or
instrumentality of the United States of America or such government
which
issued the foreign currency in which the Securities of such series
are
payable, the payment of which is unconditionally guaranteed as a
full faith
and credit obligation by the United States of America or such other
government, which, in either case, are not callable or redeemable
at the
option of the issuer thereof, and shall also include a depository
receipt
issued by a bank or trust company as custodian with respect to any
such
Government Obligation or a specific payment of interest on or
principal of any
such Government Obligation held by such custodian for the account
of the
holder of a depository receipt; provided that (except as required
by law) such
custodian is not authorized to make any deduction from the amount
payable to
the holder of such depository receipt from any amount received by
the
custodian in respect of the Government Obligation or the specific
payment of
interest on or principal of the Government Obligation evidenced by
such
depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose
name a Security is registered in the Security Register and, in the
case of a
Bearer Security, the bearer thereof and, when used with respect to
any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may
from time to time be supplemented or amended by one or more
indentures
supplemental hereto entered into pursuant to the applicable
provisions hereof,
and shall include the terms of particular series of Securities
established as
contemplated by Section 301; provided, however, that, if at any
time more than
one Person is acting as Trustee under this instrument, "Indenture"
shall mean,
with respect to any one or more series of Securities for which such
Person is
Trustee, this instrument as originally executed or as it may from
time to time
be supplemented or amended by one or more indentures supplemental
hereto
entered into pursuant to the applicable provisions hereof and shall
include
the terms of the 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 not 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.
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"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
1008,
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.
"Investment Grade" means, at the time of sale, at least one
nationally
recognized statistical rating organization (as that term is used in
Rule
15c3-1(c)(2)(vi)(F) under the Securities Exchange Act of 1934) has
rated the
Security in one of its generic rating categories which signifies
investment
grade; typically the four highest rating categories (within which
there may be
sub-categories or gradations indicating relative standing) signify
investment
grade.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of
this Indenture until a successor shall have become such pursuant to
the
applicable provisions of this Indenture, and thereafter "Issuer"
shall mean
such successor.
"Issuer Request" and "Issuer Order" mean, respectively, a
written request
or order signed in the name of the Issuer by the General Partner's
Chairman of
the Board of Directors, the President or a Vice President, and by
the General
Partner's Treasurer, an Assistant Treasurer, the Secretary or an
Assistant
Secretary, and delivered to the Trustee.
"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.
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"Officers' Certificate" means a certificate signed by the
General
Partner's Chairman of the Board of Directors, the President or a
Vice
President and by the Treasurer, an Assistant Treasurer, the
Secretary or an
Assistant Secretary, and delivered to the Trustee; provided,
however, that one
of the officers signing an Officers' Certificate required by
Section 1007
shall be the principal financial or accounting officer, treasurer
or
controller of the General Partner.
"Opinion of Counsel" means a written opinion of counsel, who
may be
counsel for the Issuer or who may be an employee of or other
counsel for the
Issuer 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 of such series 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,
redemption or repayment at the option of the Holder money in the
necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent
(other than the Issuer) in trust or set aside and segregated in
trust by the
Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of
such Securities and any coupons appertaining thereto; provided,
that, if such
Securities are to be redeemed, notice of such redemption has been
duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee
has been made;
(iii) Securities, except to the extent provided in
Sections 1402
and 1403, with respect to which the Issuer 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 Issuer;
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 Section 313 of the TIA, (i) the principal
amount of
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an Original Issue Discount Security that may be counted in making
such
determination or calculation and that shall be deemed to be
Outstanding for
such purpose shall be equal to the amount of principal thereof that
would be
(or shall have been declared to be) due and payable, at the time of
such
determination, upon a declaration of acceleration of the maturity
thereof
pursuant to Section 502, (ii) the principal amount of any Security
denominated
in a Foreign Currency that may be counted in making such
determination or
calculation and that shall be deemed Outstanding for such purpose
shall be
equal to the Dollar equivalent, determined pursuant to Section 301
as of the
date such Security is originally issued by the Issuer, 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 Issuer or any other obligor upon the
Securities
or any Affiliate of the Issuer 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 as to which a Responsible Officer of the Trustee
has received
written notice are so owned shall be so disregarded. Securities so
owned
which have been pledged in good faith may be regarded as
Outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so
to act with respect to such Securities and that the pledgee is not
the Issuer
or any other obligor upon the Securities or any Affiliate of the
Issuer or of
such other obligor.
"Paying Agent" means any Person authorized by the Issuer to
pay the
principal of (and premium, if any) or interest, if any, on any
Securities or
coupons on behalf of the Issuer, which in the case of any Bearer
Security or
coupon shall mean a Paying Agent located outside the United States.
"Person" means any individual, corporation, partnership,
limited
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or
government or any
agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities
of or within
any series, means New York and the place or places where the
principal of (and
premium, if any) and interest, if any, 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.
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"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 any
officer within the Corporate Trust Office of the Trustee (including
any vice
president (whether or not designated by a number or a word or words
added
before or after the title "vice president"), any assistant
secretary, any
assistant treasurer, any senior trust officer, trust officer or
assistant
trust officer, or any other employee of the Trustee customarily
performing
functions similar to those performed by any of the above designated
officers)
and also means, with respect to a particular corporate trust
matter, any other
officer to whom such matter is referred because of such officer's
knowledge
and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture
and, more particularly, means any Security or Securities
authenticated and
delivered under this Indenture; provided, however, that, if at any
time there
is more than one Person acting as Trustee under this Indenture,
"Securities"
with respect to the Indenture as to which such Person is Trustee
shall have
the meaning stated in the first recital of this Indenture and shall
more
particularly mean Securities authenticated and delivered under this
Indenture,
exclusive, however, of Securities of any series as to which such
Person is not
Trustee.
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"Security Register" and "Security Registrar" have the
respective meanings
specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated
under the Securities Act of 1933, as amended) of the Issuer.
"Special Record Date" for the payment of any Defaulted
Interest on the
Registered Securities of or within any series means a date fixed by
the
Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any
installment of principal thereof or interest thereon, means the
date specified
in such Security or a coupon representing such installment of
interest as the
fixed date on which the principal of such Security or such
installment of
principal or interest is due and payable.
"Subsidiary" means a corporation, partnership, limited
partnership or
limited liability company a majority of the outstanding voting
stock,
partnership interests or membership interests, as the case may be,
of which is
owned or controlled, directly or indirectly, by the Issuer or by
one or more
other Subsidiaries of the Issuer. For the purposes of this
definition,
"voting stock" means stock having voting power for the election of
directors,
or trustees, as the case may be, whether at all times or only so
long as no
senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as
amended and as in force at the date as of which this Indenture was
executed
and as it may be amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph
of this Indenture until a successor Trustee shall have become such
pursuant to
the applicable provisions of this Indenture, and thereafter
"Trustee" shall
mean or include each Person who is then a Trustee hereunder;
provided,
however, that, if at any time there is more than one such Person,
"Trustee" as
used with respect to the Securities of any series shall mean only
the Trustee
with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any
Securities pursuant to Section 301, the United States of America
(including
the states and the District of Columbia), its territories, its
possessions and
other areas subject to its jurisdiction.
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"Unsecured Debt" means Debt of the Issuer or any Subsidiary
which is not
secured by any mortgage, lien, charge, pledge or security interest
of any kind
upon any of the properties owned by the Issuer or any of its
Subsidiaries.
"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 Issuer to the Trustee to take any
action under
any provision of this Indenture, the Issuer or General Partner on
behalf of
the Issuer, as the case may be, 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 1007) shall include:
(i) a statement that each individual signing such
certificate or
opinion has read such condition or covenant and the definitions
herein
relating thereto;
(ii) 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;
(iii) a statement that, in the opinion of each such
individual, he or
she 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
(iv) a statement as to whether, in the opinion of each
such
individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee. In
any case
where several matters are required to be certified by, or covered
by an
opinion of, any specified Person, it is not necessary that all such
matters be
certified by, or covered by the opinion of, only one such Person,
or that they
be so certified or covered by only one document, but one such
Person may
certify or give an opinion as to some matters and one or more other
such
Persons as to other matters, and any such Person may certify or
give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the General
Partner 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 General Partner stating that the information as to such factual
matters is
in the possession of the Issuer, unless such counsel knows that the
certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or
more
applications, requests, consents, certificates, statements,
opinions or other
instruments under this Indenture, they may, but need not, be
consolidated and
form one instrument.
SECTION 104. Acts of Holders. (A) Any request,
demand,
authorization, direction, notice, consent, waiver or other action
provided by
this Indenture to be given or taken by Holders of the Outstanding
Securities
of all series or one or more series, as the case may be, may be
embodied in
and evidenced by one or more instruments of substantially similar
tenor signed
by such Holders in person or by agents duly appointed in writing.
If
Securities of a series are issuable as Bearer Securities, any
request, demand,
authorization, direction, notice, consent, waiver or other action
provided by
this Indenture to be given or taken by Holders of Securities of
such series
may, alternatively, be embodied in and evidenced by the record of
Holders of
Securities of such series voting in favor thereof, either in person
or by
proxies duly appointed in writing, at any meeting of Holders of
Securities of
such series duly called and held in accordance with the provisions
of Article
Fifteen, or a combination of such instruments and any such record.
Except as
herein otherwise expressly provided, such action shall become
effective when
such instrument or instruments or record or both are delivered to
the Trustee
and, where it is hereby expressly required, to the Issuer. 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. The record of any meeting of Holders of
Securities
shall be proved in the manner provided in Section 1506.
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(B) The fact and date of the execution by any Person of
any such
instrument or writing may be proved by the affidavit of a witness
of such
execution or by a certificate of a notary public or other officer
authorized
by law to take acknowledgments of deeds, certifying that the
individual
signing such instrument or writing acknowledged to him the
execution thereof.
Where such execution is by a signer acting in a capacity other than
his
individual capacity, such certificate or affidavit shall also
constitute
sufficient proof of his authority. The fact and date of the
execution of any
such instrument or writing, or the authority of the Person
executing the same,
may also be proved in any other reasonable manner which the Trustee
deems
sufficient.
(C) The ownership of Registered Securities shall be proved
by the
Security Register.
(D) The ownership of Bearer Securities may be proved by
the
production of such Bearer Securities or by a certificate executed,
as
depositary, by any trust company, bank, banker or other depositary,
wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such
Person had on
deposit with such depositary, or exhibited to it, the Bearer
Securities
therein described; or such facts may be proved by the certificate
or affidavit
of the Person holding such Bearer Securities, if such certificate
or affidavit
is deemed by the Trustee to be satisfactory. The Trustee and the
Issuer may
assume that such ownership of any Bearer Security continues until
(i) another
certificate or affidavit bearing a later date issued in respect of
the same
Bearer Security is produced, (ii) such Bearer Security is produced
to the
Trustee by some other Person, (iii) such Bearer Security is
surrendered in
exchange for a Registered Security or (iv) 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 Issuer shall solicit from the Holders of
Registered
Securities any request, demand, authorization, direction, notice,
consent,
waiver or other Act, the Issuer or the General Partner on behalf of
the
Issuer, as the case may be, may, at its option, in or pursuant to
a Board
Resolution, fix in advance a record date for the determination of
Holders
entitled to give such request, demand, authorization, direction,
notice,
consent, waiver or other Act, but neither the Issuer nor the
General Partner
shall have any obligation to do so. Notwithstanding Section 316(c)
of the
TIA, 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.
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<PAGE>
(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 Issuer
in reliance thereon, whether or not notation of such action is made
upon such
Security.
SECTION 105. Notices, etc., to Trustee and Issuer. 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:
(i) the Trustee by any Holder or by the Issuer shall be
sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to
or with the Trustee at 450 West 33rd Street, New York, New York
10001;
Attention: Corporate Trust Administration Department. As between
the Trustee
and the Issuer, facsimile notices to the Trustee at (212) 946-8160
shall be
sufficient for any purpose hereunder (unless otherwise expressly
provided);
and
(ii) the Issuer 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 Issuer
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 Issuer. As between the Trustee and the Issuer,
facsimile
notices to the Issuer at (801) 486-7653 shall be sufficient for any
purpose
hereunder (unless otherwise herein expressly provided).
SECTION 106. Notice to Holders; Waiver. Where this
Indenture
provides for notice of any event to Holders of Registered
Securities by the
Issuer or the Trustee, such notice shall be sufficiently given
(unless
otherwise herein expressly provided) if in writing and mailed,
first-class
postage prepaid, to each such Holder affected by such event, at his
address as
it appears in the Security Register, not later than the latest
date, and not
earlier than the earliest date, prescribed for the giving of such
notice. In
any case where notice to Holders of Registered Securities is given
by mail,
neither the failure to mail such notice, nor any defect in any
notice 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.
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<PAGE>
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 to the satisfaction 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 New
York City and in such other city or cities as may be specified in
such
Securities on a Business Day, such publication to be not later than
the latest
date, and not earlier than the earliest date, prescribed for the
giving of
such notice. Any such notice shall be deemed to have been given on
the date
of such publication or, if published more than once, on the date of
the first
such publication.
If by reason of the suspension of publication of any
Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall
be
impracticable to publish any notice to Holders of Bearer Securities
as
provided above, then such notification to Holders of Bearer
Securities as
shall be made to the satisfaction 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, waiver or
other action 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 if so required for the
Security of any
series.
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. Conflict with Trust Indenture Act. If any
provision
hereof limits, qualifies or conflicts with a provision of the TIA
that is
required thereunder to be a part of and govern this Indenture, such
provision
of the TIA shall control. If any provision of this Indenture
modifies or
excludes any provision of the TIA that may be so modified or
excluded, such
provision shall be deemed to apply to this Indenture as so modified
or to be
excluded, as the case may be.
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SECTION 108. Effect of Headings and Table of Contents.
The Article
and Section headings herein and the Table of Contents are for
convenience only
and shall not affect the construction hereof.
SECTION 109. Successors and Assigns. All covenants and
agreements in
this Indenture by the Issuer shall bind its successors and assigns,
whether so
expressed or not.
SECTION 110. Separability Clause. In case any provision
in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 111. 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 112. Governing Law. This Indenture and the
Securities and
coupons shall be governed by and construed in accordance with the
laws of the
State of New York. This Indenture is subject to the provisions of
the TIA
that are required to be part of this Indenture and shall, to the
extent
applicable, be governed by such provisions.
SECTION 113. Legal Holidays. In any case where any
Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated
Maturity or Maturity of any Security shall not be a Business Day at
any Place
of Payment, then (notwithstanding any other provision of this
Indenture or any
Security or coupon other than a provision in the Securities of any
series
which specifically states that such provision shall apply in lieu
hereof),
payment of interest or any Additional Amounts or principal (and
premium, if
any) need not be made at such Place of Payment on such date, but
may be made
on the next succeeding Business Day at such Place of Payment with
the same
force and effect as if made on the Interest Payment Date,
Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated
Maturity or
Maturity; provided that no interest shall accrue on the amount so
payable for
the period from and after such Interest Payment Date, Redemption
Date,
Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the
case may be.
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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, and the form of any guarantee shall be in substantially
the forms as
shall be established in one or more indentures supplemental hereto
or approved
from time to time by or pursuant to a Board Resolution in
accordance with
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 Issuer may deem appropriate, as are not inconsistent
with the
provisions of this Indenture, 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 and which are furnished to the Trustee in writing.
Unless otherwise specified as contemplated by Section 301,
Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or
engraved or produced by any combination of these methods on a steel
engraved
border or steel engraved borders or may be produced in any other
manner, all
as determined by the officers executing such Securities or coupons,
as
evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be
in substantially the following form:
This is one of the Securities of the series designated therein
referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee
By_______________________
Authorized Officer
Dated:___________________
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<PAGE>
SECTION 203. Securities Issuable in Global Form. If
Securities of or
within a series are issuable in global form, as specified as
contemplated by
Section 301, then, notwithstanding clause (ix) of Section 301 and
the
provisions of Section 302, any such Security shall represent such
of the
Outstanding Securities of such series as shall be specified therein
and may
provide that it shall represent the aggregate amount of Outstanding
Securities
of such series from time to time reflected on the records of the
Trustee,
which records shall be conclusive and binding absent manifest error
and that
the aggregate amount of Outstanding Securities of such series
represented
thereby may from time to time be increased or decreased to reflect
exchanges.
Subject to the provisions of Section 303 and, if applicable,
Section 304, the
Trustee shall deliver and redeliver any Security in permanent
global form in
the manner and upon instructions given by the Person or Persons
specified
therein or in the applicable Issuer Order. If an Issuer Order
pursuant to
Section 303 or 304 has been, or simultaneously is, delivered with
respect to a
particular series, any instructions by the Issuer with respect to
delivery or
redelivery of a Security in global form shall be in writing but
need not
comply with Section 102 and need not be accompanied by an Opinion
of Counsel
with respect to such series for Securities issued subsequent to the
first
issuance of Securities of such series.
The provisions of the last sentence of Section 303 shall apply
to any
Security represented by a Security in global form if such Security
was never
issued and sold by the Issuer and the Issuer delivers to the
Trustee the
Security in global form together with written instructions (which
need not
comply with Section 102 and need not be accompanied by an Opinion
of Counsel)
with regard to the reduction in the principal amount of Securities
represented
thereby, together with the written statement contemplated by the
last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified
as contemplated by Section 301, payment of principal of and any
premium and
interest on any Security in permanent global form shall be made to
the Person
or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as
provided in
the preceding paragraph, the Issuer, the Trustee and any agent of
the Issuer
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.
18
<PAGE>
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. Any Securities issued hereunder may
be
unconditionally guaranteed by a guarantor to be named in an
indenture
supplemental hereto as to payment of principal, premium, if any,
and interest.
The Securities may be issued in one or more series. There
shall be
established in one or more Board Resolutions or pursuant to
authority granted
by one or more Board Resolutions and, subject to Section 303, set
forth, or
determined in the manner provided, in an Officers' Certificate, or
established
in one or more indentures supplemental hereto, prior to the
issuance of
Securities of any series, any or all of the following, as
applicable, each of
which, if so provided, may be determined from time to time by the
Issuer with
respect to unissued Securities of the series when issued from time
to time:
(i) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities
and whether such Securities are senior or subordinated securities);
(ii) the aggregate principal amount and 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, in exchange for, or in
lieu of,
other Securities of the series pursuant to Section 304, 305, 306,
906, 1107 or
1305 and except for any Securities which, pursuant to Section 303,
are deemed
never to have been authenticated and delivered hereunder);
(iii) the percentage of the principal amount at which the
Securities
of the series will be issued and, if other than the principal
amount thereof,
the portion of the principal amount thereof payable upon
declaration of
acceleration of Maturity thereof;
(iv) 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;
(v) the rate or rates (which may be fixed or variable) 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;
19
<PAGE>
(vi) the Place of Payment, which in the case of Bearer
Securities
shall be outside the United States, if any, if other than or in
addition to
the Borough of Manhattan, New York City, 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 Issuer in respect of
the
Securities of the series and this Indenture or any applicable
guarantees may
be served;
(vii) 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 Issuer, if the Issuer is to have the option;
(viii) the obligation, if any, of the Issuer 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;
(ix) if other than denominations of $1,000 and any
integral multiple
thereof, the denominations in which any Registered Securities of
the series
shall be issuable and, if other than denominations of $5,000 and
any integral
multiple thereof, the denomination or denominations in which any
Bearer
Securities of the series shall be issuable;
(x) if other than the Trustee, the identity of each
Security
Registrar and/or Paying Agent and/or transfer agent;
(xi) if other than the principal amount thereof, the
portion of the
principal amount of Securities of the series that shall be payable
upon declarat
ion of acceleration of the Maturity thereof pursuant to Section 502
or the
method by which such portion shall be determined;
(xii) if other than Dollars, the Foreign Currency or
Currencies in
which payment of the principal of (and premium, if any) or
interest, if any,
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;
(xiii) 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;
20
<PAGE>
(xiv) whether the principal of (and premium, if any) or
interest, if
any, or Additional Amounts, if any, on the Securities of the series
are to be
payable, at the election of the Issuer 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;
(xv) provisions, if any, granting special rights to the
Holders of
Securities of the series upon the occurrence of such events as may
be
specified;
(xvi) any deletions from, modifications of or additions to
the Events
of Default or covenants of the Issuer with respect to Securities of
the
series, whether or not such Events of Default or covenants are
consistent with
the Events of Default or covenants set forth herein;
(xvii) 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;
(xviii) 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;
(xix) 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, which Person shall be outside the United States, 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 at a
Paying Agent outside the United States 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;
(xx) 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;
(xxi) whether the Securities of the series are to be
issuable in
global or definitive form, and if the Securities of the series are
to be
issuable in definitive form (whether upon original issue or upon
exchange of a
temporary Security of such series) only upon receipt of certain
certificates
or other documents or satisfaction of other conditions, then the
form and/or
terms of such certificates, documents or conditions;
21
<PAGE>
(xxii) if the Securities of the series are to be issued
upon the
exercise of debt warrants, the time, manner and place for such
Securities to
be authenticated and delivered;
(xxiii) if the Securities of the series are subordinated
in right of
payment to any other class or classes of Debt of the Issuer, the
terms and
conditions of such subordination;
(xxiv) if the Securities of the series are to be
guaranteed, the
terms and conditions of such guarantee;
(xxv) whether and under what circumstances the Issuer will
pay
Additional Amounts as contemplated by Section 1008 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 Issuer will have the
option to
redeem such Securities rather than pay such Additional Amounts (and
the terms
of any such option); and
(xxvi) any other terms of the Securities 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 General Partner on behalf of the Issuer
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.
22
<PAGE>
SECTION 302. Denominations. The Securities of each series
shall be
issuable in such denominations as shall be specified as
contemplated by
Section 301. With respect to Securities of any series denominated
in Dollars,
in the absence of any such provisions with respect to the
Securities of any
series, the Registered Securities of such series, other than
Registered
Securities issued in global form (which may be of any
denomination), shall be
issuable in denominations of $1,000 and any integral multiple
thereof and the
Bearer Securities of such series, other than Bearer Securities
issued in
global form (which may be of any denomination), shall be issuable
in
denominations of $5,000 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 Issuer by the General Partner's Chairman of the Board, its
President or
one of its Vice Presidents, under its corporate seal reproduced
thereon, and
attested by its Secretary or one of its Assistant Secretaries. The
signature
of any of these officers on the Securities and coupons may be
manual or
facsimile signatures of the present or any future such authorized
officer and
may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of
individuals who were at any time the proper officers of the Issuer
or the
General Partner on behalf of the Issuer shall bind the Issuer,
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 Issuer may deliver Securities of any series,
together with
any coupon appertaining thereto, executed by the Issuer to the
Trustee for
authentication, together with an Issuer Order for the
authentication and
delivery of such Securities, and the Trustee (or Paying Agent
outside the
United States in the case of Bearer Securities) in accordance with
the Issuer
Order shall authenticate and deliver such Securities; provided,
however, that,
in connection with its original issuance, no Bearer Security shall
be mailed
or otherwise delivered to any location in the United States; and
provided
further that, unless otherwise specified with respect to any series
of
Securities pursuant to Section 301, a Bearer Security may be
delivered in
connection with its original issuance only if the Person entitled
to receive
such Bearer Security shall have furnished a certificate to
Euroclear or CEDEL,
as the case may be, in the form set forth in Exhibit A-1 to this
Indenture or
such other certificate as may be specified with respect to any
series of
Securities pursuant to Section 301, dated no earlier than 15 days
prior to the
earlier of the date on which such Bearer Security is delivered and
the date on
which any temporary Security first becomes exchangeable for such
Bearer
Security in accordance with the terms of such temporary Security
and this
Indenture. If any Security shall be represented by a permanent
global Bearer
Security, then, for purposes of this Section and Section 304, the
notation of
a beneficial owner's interest therein upon original issuance of
such Security
or upon exchange of a portion of a temporary global Security shall
be deemed
to be delivery in connection with its original issuance of such
beneficial
owner's interest in such permanent global Security. Except as
permitted by
Section 306, neither the Trustee nor any Paying Agent or
Authenticating Agent
shall authenticate and deliver any Bearer Security and the Paying
Agent or
Authenticating Agent outside the United States shall not
authenticate and
deliver any Bearer Security unless all appurtenant coupons for
interest then
matured have been detached and cancelled.
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<PAGE>
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 Issuer 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 Section 315(a) through 315(d)
of the TIA)
shall be fully protected in relying upon;
(i) an Opinion of Counsel stating that:
(a) the form or forms of such Securities and any coupons
have been
established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
and
(c) such Securities, together with any coupons
appertaining thereto,
when completed pursuant to such procedures as may be specified
therein and
executed and delivered by the Issuer 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 Issuer in the
manner and
subject to any conditions specified in such Opinion of Counsel,
will
constitute legal, valid and binding obligations of the Issuer,
enforceable in
accordance with their terms, subject to applicable bankruptcy,
insolvency,
reorganization and other similar laws of general applicability
relating to or
affecting the enforcement of creditors' rights generally and to
general
equitable principles; and
(ii) an Officers' Certificate stating that all
conditions
precedent provided for in this Indenture relating to the issuance
of the
Securities have been complied with, whether or not the Securities
are
Investment Grade, and that, to the best of the knowledge of the
signers of
such certificate, no Event of Default with respect to any of the
Securities
shall have occurred and be continuing.
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<PAGE>
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 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 the Security to which such coupon appertains a
certificate of
authentication substantially in the form provided for herein duly
executed by
the Trustee by manual signature of an authorized signatory, and
such
certificate upon any Security shall be conclusive evidence, and the
only
evidence, that such Security has been duly authenticated and
delivered
hereunder and is entitled to the benefits of this Indenture.
Notwithstanding
the foregoing, if any Security shall have been authenticated and
delivered
hereunder but never issued and sold by the Issuer, and the Issuer
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 or sold by the Issuer, for all
purposes of this
Indenture such Security shall be deemed never to have been
authenticated and
delivered hereunder and shall never be entitled to the benefits of
this
Indenture.
SECTION 304. Temporary Securities. (A) Pending the
preparation of definitive Securities of any series, the Issuer may
execute,
and upon Issuer 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 Securities in global form
(which shall be
exchanged in accordance with Section 304(B) or as otherwise
provided in or
pursuant to a Board Resolution), if temporary Securities of any
series are
issued, the Issuer 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
Issuer in a
Place of Payment for that series, without charge to the Holder.
Upon
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<PAGE>
surrender for cancellation of any one or more temporary Securities
of any
series (accompanied by any nonmatured coupons appertaining
thereto), the
Issuer shall execute and the Trustee shall authenticate and deliver
in
exchange therefor a like principal amount of definitive Securities
of the same
series of authorized denominations; provided, however, that no
definitive
Bearer Security shall be delivered in exchange for a temporary
Registered
Security; and provided further that a definitive Bearer Security
shall be
delivered in exchange for a temporary Bearer Security only in
compliance with
the conditions set forth in Section 303. Until so exchanged, the
temporary
Securities of any series shall in all respects be entitled to the
same
benefits under this Indenture as definitive Securities of such
series.
(B) Unless otherwise provided in or pursuant to a Board
Resolution,
this Section 304(B) shall govern the exchange of temporary
Securities issued
in global form other than through the facilities of DTC. If any
such
temporary Security is issued in global form, then such temporary
global
Security shall, unless otherwise provided therein, be delivered to
the London
office of a depositary or common depositary (the "Common
Depositary"), for the
benefit of Euroclear and CEDEL, for credit to the respective
accounts of the
beneficial owners of such Securities (or to such other accounts as
they may
direct).
Without unnecessary delay, but in any event not later than the
date
specified in, or determined pursuant to the terms of, any such
temporary
global Security (the "Exchange Date"), the Issuer shall deliver to
the Trustee
definitive Securities, in aggregate principal amount equal to the
principal
amount of such temporary global Security, executed by the Issuer.
On or after
the Exchange Date, such temporary global Security shall be
surrendered by the
Common Depositary to the Paying Agent outside the United States, as
the
Issuer's agent for such purpose, to be exchanged, in whole or from
time to
time in part, for definitive Securities without charge, and the
Paying Agent
outside the United States 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.
26
<PAGE>
Unless otherwise specified in such temporary global Security,
the
interest of a beneficial owner of Securities of a series in a
temporary global
Security shall be exchanged for definitive Securities of the same
series and
of like tenor following the Exchange Date when the account holder
instructs
Euroclear or CEDEL, as the case may be, to request such exchange on
his behalf
and delivers to Euroclear or CEDEL, as the case may be, a
certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other
form as may
be established pursuant to Section 301), dated no earlier than 15
days prior
to the Exchange Date, copies of which certificate shall be
available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating
Agent
appointed for such series of Securities and each Paying Agent.
Unless
otherwise specified in such temporary global Security, any such
exchange shall
be made free of charge to the beneficial owners of such temporary
global
Security, except that a Person receiving definitive Securities must
bear the
cost of insurance, postage, transportation and the like unless such
Person
takes delivery of such definitive Securities in person at the
offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be
delivered in
exchange for any portion of a temporary global Security shall be
delivered
only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities
of any series shall in all respects be entitled to the same
benefits under
this Indenture as definitive Securities of the same series and of
like tenor
authenticated and delivered hereunder, except that, unless
otherwise specified
as contemplated by Section 301, interest payable on a temporary
global Bearer
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 and Paying Agent outside the United States of a certificate
or
certificates in the form set forth in Exhibit A-2 to this Indenture
(or in
such other forms as may be established pursuant to Section 301),
for credit
without further interest on or after such Interest Payment Date to
the
respective accounts of Persons who are the beneficial owners of
such temporary
global Security on such Interest Payment Date and who have each
delivered to
Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15
days prior to the Interest Payment Date occurring prior to such
Exchange Date
in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms
as may be established pursuant to Section 301). Notwithstanding
anything to
the contrary herein contained, the certifications made pursuant to
this
paragraph shall satisfy the certification requirements of the
preceding two
paragraphs of this Section 304(B) and of the third paragraph of
Section 303 of
this Indenture and the interests of the Persons who are the
beneficial owners
of the temporary global Security with respect to which such
certification was
made will be exchanged for definitive Securities of the same series
and of
like tenor on the Exchange Date or the date of certification if
such date
occurs after the Exchange Date, without further act or deed by such
beneficial
owners. Except as otherwise provided in this paragraph, no
payments of
principal or interest owing with respect to a beneficial interest
in a
temporary global Security will be made unless and until such
interest in such
temporary global Security shall have been exchanged for an interest
in a
definitive Security. Any interest so received by Euroclear and
CEDEL and not
paid as herein provided shall be returned to the Trustee prior to
the
expiration of two years after such Interest Payment Date in order
to be repaid
to the Issuer upon Issuer Request.
SECTION 305. Registration, Registration of Transfer and
Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of
the Trustee
or in any office or agency of the Issuer in a Place of Payment a
register for
each series of Securities (the register maintained in such office
or in any
such office or agency of the Issuer in a Place of Payment being
herein
sometimes referred to collectively as the "Security Register") in
which,
27
<PAGE>
subject to such reasonable regulations as it may prescribe, the
Issuer 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
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 Issuer in a Place of Payment for that
series, the
Issuer shall execute, and the Trustee shall authenticate and
deliver, in the
name of the designated transferee or transferees, one or more new
Registered
Securities of the same series, of any authorized denominations and
of a like
aggregate principal amount, bearing a number not contemporaneously
outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option
of the
Holder, Registered Securities of any series may be exchanged for
other
Registered Securities of the same series, of any authorized
denomination or
denominations and of a like aggregate principal amount, containing
identical
terms and provisions, upon surrender of the Registered Securities
to be
exchanged at any such office or agency. Whenever any such
Registered
Securities are so surrendered for exchange, the Issuer 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 outside the United States, with all unmatured coupons and
all matured
28
<PAGE>
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
Issuer 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
Issuer and
the Trustee or any Paying Agent outside the United States if there
is
furnished to them such security or indemnity as they may require to
hold each
of them harmless. If thereafter the Holder of such Security shall
surrender
to any Paying Agent outside the United States any such missing
coupon in
respect of which such a payment shall have been made, such Holder
shall be
entitled to receive the amount of such payment; provided, however,
that,
except as otherwise provided in Section 1002, interest represented
by coupons
shall be payable only upon presentation and surrender of those
coupons at an
office or agency located outside the United States.
Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered
at any such
office or agency in a permitted exchange for a Registered Security
of the same
series and like tenor after the close of business at such office or
agency on
(i) any Regular Record Date and before the opening of business at
such office
or agency on the relevant Interest Payment Date or (ii) any Special
Record
Date and before the opening of business at such office or agency on
the
related proposed date for payment of Defaulted Interest, such
Bearer Security
shall be surrendered without the coupon relating to such Interest
Payment Date
or proposed date for payment, as the case may be, and interest or
Defaulted
Interest, as the case may be, will not be payable on such Interest
Payment
Date or proposed date for payment, as the case may be, in respect
of the
Registered Security issued in exchange for such Bearer Security,
but will be
payable only to the Holder of such coupon when due in accordance
with the
provisions of this Indenture. Whenever any Securities are so
surrendered for
exchange, the Issuer shall execute, and the Trustee or an
Authenticating Agent
outside the United States shall authenticate and deliver, the
Securities which
the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the depositary
for any
permanent global Security is DTC, then, unless the terms of 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
Issuer or to a nominee of such successor to DTC. If at any time
DTC notifies
the Issuer that it is unwilling or unable to continue as depositary
for the
applicable global Security or Securities or if at any time DTC
ceases to be a
clearing agency registered under the Exchange Act if so required by
applicable
law or regulation, the Issuer shall appoint a successor depositary
with
respect to such global Security or Securities. If (i) a successor
depositary
for such global Security or Securities is not appointed by the
Issuer within
90 days after the Issuer receives such notice or becomes aware of
such
unwillingness, inability or ineligibility, (ii) 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 (iii) the Issuer, 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 Issuer 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
29
<PAGE>
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 Issuer 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. Bearer Securities may not be issued in exchange for any
Registered
global Securities. 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 Issuer
Order with respect thereto to the Trustee, as the Issuer's agent
for such
purpose; provided, however, that no such exchanges may occur during
a period
beginning at the opening of business 15 days before any selection
of
Securities to be redeemed and ending on the relevant Redemption
Date if the
Security for which exchange is requested may be among those
selected for
redemption; and provided further that no Bearer Security delivered
in exchange
for a portion of a permanent global Bearer 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
(i) on any Regular Record Date and before the opening of business
at such
office or agency on the relevant Interest Payment Date or (ii) on
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 Issuer, 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 be duly endorsed, or
be
accompanied by a written instrument of transfer in form
satisfactory to the
Security Registrar, duly executed by the Holder thereof or his
attorney duly
authorized in writing.
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<PAGE>
No service charge shall be made for any registration of
transfer or
exchange of Securities, but the Issuer 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 Issuer or the Trustee, as applicable, shall not be
required (i) to
issue, authenticate, 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 the day of the mailing of
a notice
of redemption of any such Securities selected for redemption 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,
(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, (iii) to exchange any Bearer Security so selected for
redemption
except that such a Bearer Security may be exchanged for a
Registered Security
of that series and like tenor; provided that such Registered
Security shall be
simultaneously surrendered for redemption, or (iv) to issue,
register the
transfer of or exchange any Security which has been surrendered for
repayment
at the option of the Holder, except the portion, if any, of such
Security not
to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. If any
mutilated Security or a Security with a mutilated coupon
appertaining to it is
surrendered to the Trustee, or Paying or Authenticating Agent
outside the
United States in the case of a Bearer Security or coupon, or the
Issuer,
together with, in proper cases, such security or indemnity as may
be required
by the Issuer or the Trustee and such Paying or Authenticating
Agent outside
the United States to hold each of them or any agent of either of
them
harmless, the Issuer shall execute and the Trustee or such Agent
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 Issuer and to the Trustee
or Paying or
Authenticating Agent outside the United States in the case of a
Bearer
Security or coupon (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 hold each of them and any agent of either of
them
harmless, then, in the absence of notice to the Issuer or the
Trustee or such
Paying or Authenticating Agent outside the United States that such
Security or
coupon has been acquired by a bona fide purchaser, the Issuer shall
execute
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<PAGE>
and upon its request the Trustee or such Paying or Authenticating
Agent
outside the United States 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 Issuer 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
Issuer 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 or any agent,
including
without limitation, the reasonable fees and expenses of counsel)
connected
therewith.
Every new Security of any series with its coupons, if any,
issued
pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or
in exchange for a Security to which a destroyed, lost or stolen
coupon
appertains, shall constitute an original additional contractual
obligation of
the Issuer, 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.
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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 Issuer
maintained for such purpose pursuant to Section 1002; provided,
however, that
each installment of interest on any Registered Security may at the
Issuer'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) wire
transfer of funds to an account maintained by the payee located
inside the
United States; provided, that the Trustee shall have received
written wire
instructions by no later than 15 days prior to any relevant payment
date.
Payment of interest may be made, in the case of a Bearer
Security, only
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 where such exchange occurs) on any Regular Record Date
and before
the opening of business (at such office or agency) on the next
succeeding
Interest Payment Date, such Bearer Security shall be surrendered
without the
coupon relating to such Interest Payment Date and interest will not
be payable
on such Interest Payment Date in respect of the Registered Security
issued in
exchange for such Bearer Security, but will be payable only to the
Holder of
such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of
Securities in
accordance with the provisions of Section 301, any interest on any
Registered
Security of any series that is payable, but is not punctually paid
or duly
provided for, on any Interest Payment Date (herein called
"Defaulted
Interest") shall forthwith cease to be payable to the registered
Holder
thereof on the relevant Regular Record Date by virtue of having
been such
Holder, and such Defaulted Interest may be paid by the Issuer, at
its election
in each case, as provided in clause (i) or (ii) below:
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(i) the Issuer 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 Issuer 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 Issuer 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 provided in this clause. 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 Issuer of such Special Record Date and, in the name and
at the
expense of the Issuer, 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. 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 (ii). In case a Bearer Security of any series is
surrendered at the
office or agency in a Place of Payment outside the United States
for such
series in exchange for a Registered Security of such series after
the close of
business at such office or agency on any Special Record Date and
before the
opening of business at such office or agency on the related
proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered
without the coupon relating to such proposed date of payment and
Defaulted
Interest will not be payable on such proposed date of payment in
respect of
the Registered Security issued in exchange for such Bearer
Security, but will
be payable only to the Holder of such coupon when due in accordance
with the
provisions of this Indenture; or
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(ii) the Issuer 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 Issuer 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, 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 Issuer, the
Trustee and
any agent of the Issuer 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, if any, on, such
Registered
Security and for all other purposes whatsoever, whether or not such
Registered
Security be overdue, and neither the Issuer, the Trustee nor any
agent of the
Issuer or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall
pass by delivery. The Issuer, the Trustee and any agent of the
Issuer 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
Issuer, the Trustee nor any agent of the Issuer or the Trustee
shall be
affected by notice to the contrary.
None of the Issuer, the Trustee, any Paying Agent or the
Security
Registrar will have any responsibility or liability for any aspect
of the
records relating to or payments made on account of beneficial
ownership
interests of a Security in global form or for maintaining,
supervising or
reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing
herein shall prevent the Issuer, the Trustee or any agent of the
Issuer 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.
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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; provided, however, where the Place of Payment is
located
outside of the United States, the Paying Agent at such Place of
Payment may
cancel the Securities surrendered to it for such purposes prior to
delivering
the Securities to the Trustee. The Issuer may at any time deliver
to the
Trustee for cancellation any Securities previously authenticated
and delivered
hereunder which the Issuer 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
Issuer has not issued and sold, and all Securities so delivered
shall be
promptly cancelled by the Trustee. If the Issuer 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
Issuer.
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 Issuer Request cease to be of further effect with
respect to any
series of Securities specified in such Issuer Request (except as to
any
surviving rights of registration of transfer or exchange of
Securities of such
series herein expressly provided for and any right to receive
Additional
Amounts, as provided in Section 1008), and the Trustee, upon
receipt of an
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Issuer Order, and at the expense of the Issuer, shall execute
instruments in
form and substance satisfactory to the Issuer and the Trustee
acknowledging
satisfaction and discharge of this Indenture as to such series when
(i) 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 Issuer and thereafter repaid to the Issuer 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 (1)
or (2)
below, any coupons appertaining thereto not theretofore delivered
to the
Trustee for cancellation
(1) have become due and payable,
(2) will become due and payable at their Stated Maturity
within one
year, or
(3) if redeemable at the option of the Issuer, 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 Issuer,
and the Issuer, in the case of (1), (2) or (3) 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, if
any, and
any Additional Amounts with respect thereto, to the date of such
deposit (in
the case of Securities which have become due and payable) or to the
Stated
Maturity or Redemption Date, as the case may be;
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(ii) the Issuer has paid or caused to be paid all other
sums payable
hereunder by the Issuer; and
(iii) the Issuer or the General Partner on behalf of the
Issuer 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 Issuer to the Trustee and any predecessor
Trustee under
Section 606, the obligations of the Issuer 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 (i) 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 Issuer acting as its own Paying Agent), to the
Persons entitled
thereto, of the principal (and premium, if any), and interest, if
any, 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. Subject to any
modifications,
additions or deletions relating to any series of Securities as
contemplated
pursuant to Section 301, "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):
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(i) default in the payment of any interest on 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;
(ii) 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;
(iii) default in the deposit of any sinking fund payment,
when and as
due by the terms of any Security of that series;
(iv) default in the performance, or breach, of any
covenant or
warranty of the Issuer 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 Issuer by the
Trustee or
to the Issuer 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;
(v) a default under any bond, debenture, note or other
evidence of
recourse indebtedness for money borrowed by the Issuer (including
a default
with respect to Securities of any series other than that series)
having an
aggregate principal amount outstanding of at least $10,000,000, or
under any
mortgage, indenture or instrument (including this Indenture) under
which there
may be issued or by which there may be issued or by which there by
be secured
or evidenced any recourse indebtedness for money borrowed by the
Issuer having
an aggregate principal amount outstanding of at least $10,000,000,
whether
such indebtedness now exists or shall hereafter be created, which
default (A)
shall constitute a failure to pay any portion of the principal of
such
indebtedness when due and payable after the expiration of any
applicable grace
period with respect thereto and (B) 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, in the case of
Clause (A),
such indebtedness having been discharged or without, in the case of
Clause
(B), such indebtedness having been discharged or such acceleration
having been
rescinded or annulled, in each such case within a period of 10 days
after
there shall have been given, by registered or certified mail, to
the Issuer by
the Trustee or to the Issuer and the Trustee by the Holders of at
least 10% in
principal amount of the Outstanding Securities of that series a
written notice
specifying such default and requiring the Issuer to cause such
indebtedness to
be discharged or cause such acceleration to be rescinded or
annulled, as the
case may be, and stating that such notice is a "Notice of Default"
hereunder;
provided, however, that, subject to the provisions of Sections 601
and 602,
the Trustee shall not be deemed to have knowledge of such default
unless
either (A) a Responsible Officer of the Trustee shall have received
written
notice of such default or (B) the Trustee shall have received
written notice
thereof from the Issuer, from any Holder, from the holder of any
such
indebtedness or from the trustee under any such mortgage, indenture
or other
instrument;
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(vi) the Issuer or any Significant Subsidiary pursuant to
or within
the meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against
it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or
for all or
substantially all of its property, or
(d) makes a general assignment for the benefit of its
creditors;
(vii) a court of competent jurisdiction enters an order or
decree
under any Bankruptcy Law that remains unstayed and in effect for 90
days, and:
(a) is for relief against the Issuer or any Significant
Subsidiary in
an involuntary case,
(b) appoints a Custodian of the Issuer or any Significant
Subsidiary
or for all or substantially all of either of its property, or
(c) orders the liquidation of the Issuer or any
Significant
Subsidiary; or
(viii) 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 of the
United States 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 (or, if any
Securities are
Original Issue Discount Securities or Indexed Securities, such
portion of the
principal as may be specified in the terms thereof) of all the
Securities of
that series to be due and payable immediately, by a notice in
writing to the
Issuer (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.
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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 payme
nt 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
Issuer and the
Trustee, may rescind and annul such declaration and its
consequences if:
(i) the Issuer has paid or deposited with the Trustee a
sum
sufficient to pay in the currency or 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 all sums due and owing to the Trustee
pursuant to
Section 606; and
(ii) 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, if any, 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 Issuer covenants that if:
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(i) 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
(ii) default is made in the payment of the principal of
(or premium,
if any, on) any Security of any series at its Maturity,
then the Issuer 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, if any, 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 and all sums due
and owing to
the Trustee pursuant to Section 606.
If the Issuer 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 Issuer 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 Issuer 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 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 effective 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.
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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 Issuer or any other obligor upon the
Securities or
the property of the Issuer 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 Issuer for the payment of overdue principal, premium, if
any, or
interest, if any) 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, if any, and
Additional Amounts,
if any, owing and unpaid in respect of the Securities and to file
such other
papers or documents as may be necessary or advisable in order to
have the
claims of the Trustee (including any claim for the reasonable
compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or
other similar official) in any such judicial proceeding is hereby
authorized
by each Holder of Securities of such series and coupons to make
such payments
to the Trustee, and in the event that the Trustee shall consent to
the making
of such payments directly to the Holders, to pay to the Trustee any
amount due
to it for the reasonable compensation, expenses, disbursements and
advances of
the Trustee and any predecessor Trustee, their agents and counsel,
and any
other amounts due the Trustee or any predecessor Trustee under
Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to
authorize or consent to or accept or adopt on behalf of any Holder
of a
Security or coupon any plan of reorganization, arrangement,
adjustment or
composition affecting the Securities or coupons or the rights of
any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession
of
Securities or Coupons. All rights of action and claims under this
Indenture
or any of the Securities or coupons may be prosecuted and enforced
by the
Trustee without the possession of any of the Securities or coupons
or the
production thereof in any proceeding relating thereto, and any such
proceeding
instituted by the Trustee shall be brought in its own name as
trustee of an
express trust, and any recovery of judgment shall, after provision
for the
payment of the reasonable compensation, expenses, disbursements and
advances
of the Trustee, its agents and counsel and any other amounts due to
the
Trustee or any predecessor Trustee under Section 606, be for the
ratable
benefit of the Holders of the Securities and coupons in respect of
which such
judgment has been recovered.
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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, if any,
and any Additional Amounts, upon presentation of the Securities or
coupons, or
both, as the case may be, and the notation thereon of the payment
if only
partially paid and upon surrender thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee and any
predecessor
Trustee under Section 606;
SECOND: to the payment of the amounts then due and unpaid
upon the
Securities and coupons for principal (and premium, if any) and
interest, if
any, 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
Issuer.
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:
(i) such Holder has previously given written notice to the
Trustee of
a continuing Event of Default with respect to the Securities of
that series;
(ii) 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;
(iii) such Holder or Holders have offered to the Trustee
indemnity
satisfactory to the Trustee against the costs, expenses and
liabilities to be
incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such
notice,
request and offer of indemnity has failed to institute any such
proceeding;
and
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(v) 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 whatsoever by virtue of, or by
availing to, any
provision of this Indenture to affect, disturb or prejudice the
rights of any
other of such Holders, 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 receive payment of
the
principal of (and premium, if any) and (subject to Sections 305 and
307)
interest, if any, 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
Issuer, 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.
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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:
(i) such direction shall not be in conflict with any rule
of law or
with this Indenture;
(ii) the Trustee may take any other action deemed proper
by the
Trustee which is not inconsistent with such direction; and
(iii) the Trustee need not take any action which might
involve it in
personal liability or be unduly prejudicial to the Holders of
Securities of
such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not
less than a
majority in principal amount of the Outstanding Securities of any
series may
on behalf of the Holders of all the Securities of such series and
any related
coupons waive any past default hereunder with respect to such
series and its
consequences, except a default:
(i) 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
(ii) 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.
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SECTION 514. Waiver of Usury, Stay or Extension Laws. The
Issuer
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 Issuer (to the extent that
it may
lawfully do so) hereby expressly waives all benefit or advantage of
any such
law, and covenants that it will not hinder, delay or impede the
execution of
any power herein granted to the Trustee, but will suffer and permit
the
execution of every such power as though no such law had been
enacted.
SECTION 515. Undertaking for Costs. All parties to this
Indenture
agree, and each Holder of any Security by his acceptance thereof
shall be
deemed to have agreed, that any court may in its discretion
require, in any
suit for the enforcement of any right or remedy under this
Indenture, or in
any suit against the Trustee for any action taken or omitted by it
as Trustee,
the filing by any party litigant in such suit of any undertaking to
pay the
costs of such suit, and that such court may in its discretion
assess
reasonable costs, including reasonable attorneys' fees, against any
party
litigant in such suit having due regard to the merits and good
faith of the
claims or defenses made by such party litigant; but the provisions
of this
Section shall not apply to any suit instituted by the Trustee, to
any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more
than 10% in principal amount of the Outstanding Securities, or to
any suit
instituted by any Holder for the enforcement of the payment of the
principal
of (or premium, if any) or interest, if any, on or any Additional
Amounts
payable with respect to 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 as to which a Responsible Officer of the
Trustee has
received written notice (other than a payment default) with respect
to the
Securities of any series, the Trustee shall transmit in the manner
and to the
extent provided in Section 313(c) of the TIA, 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, if any, 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
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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(iv) 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
Section 315(a) through 315(d) of the TIA:
(i) the Trustee may rely and shall be protected in acting
or
refraining from acting upon any resolution, Officers' Certificate,
other
certificate, statement, instrument, opinion, Opinion of Counsel,
report,
notice, request, Issuer Request, direction, consent, order, Issuer
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;
(ii) any request or direction of the Issuer mentioned
herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order (other
than
delivery of any Security, together with any coupons appertaining
thereto, to
the Trustee for authentication and delivery pursuant to Section 303
which
shall be sufficiently evidenced as provided therein) and any
resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(iii) 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;
(iv) the Trustee may consult with counsel and the advice
of such
counsel or any Opinion of Counsel shall be full and complete
authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder
in good faith and in reliance thereon;
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(v) 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 satisfactory to the Trustee against the
costs, expenses
and liabilities which might be incurred by it in compliance with
such request
or direction;
(vi) the Trustee shall not be bound to make any
investigation into
the facts or matters stated in any resolution, Board Resolution,
Officers'
Certificate, other certificate, statement, instrument, opinion,
Opinion of
Counsel, report, notice, request, Issuer Request, direction,
consent, order,
Issuer Order, bond, debenture, note, coupon or other paper or
document, but
the Trustee 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 Issuer, personally or by agent or
attorney
following reasonable notice to the Issuer;
(vii) 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
(viii) 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 rights or powers conferred upon it by this Indenture.
Notwithstanding anything to the contrary provided herein, 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.
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Whether or not herein expressly so provided, every provision
of this
Indenture relating to the conduct or affecting the conduct or
affecting the
liability of or affording protection to the Trustee shall be
subject to the
provisions of this Section.
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 Issuer, 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
Issuer 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
Issuer, in
its individual or any other capacity, may become the owner or
pledgee of
Securities and coupons and, subject to Sections 310(b) and 311 of
the TIA, may
otherwise deal with the Issuer with the same rights it would have
if it were
not Trustee, Paying Agent, Security Registrar, Authenticating Agent
or such
other agent. The Trustee may become and act as Trustee under other
indentures
under which other securities or certificates of interest or
participations in
other securities of the Issuer are outstanding in the same manner
as if it
were not the Trustee.
SECTION 605. Money Held in Trust. Money held by the
Trustee in trust
hereunder need not be segregated from other funds except to the
extent
required by law. The Trustee shall be under no liability for
interest on any
money received by it hereunder except as otherwise agreed in
writing with the
Issuer.
SECTION 606. Compensation and Reimbursement. The Issuer
agrees:
(i) to pay to the Trustee from time to time such
compensation as may
be agreed in writing with the Trustee from time to time 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);
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(ii) except as otherwise expressly provided herein, to
reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable
expenses, disbursements and advances incurred or made by the
Trustee in
accordance with any provision of this Indenture (including the
reasonable
compensation and the expenses and disbursements of its agents and
counsel and
other persons not regularly in its employ), except to the extent
any such
expense, disbursement or advance as may be attributable to its
negligence or
bad faith; and
(iii) to indemnify each of the Trustee and any predecessor
Trustee
(in its individual capacity and as Trustee), its officers and
directors for,
and to hold each such person harmless against, any loss, claim,
damage,
liability or expense incurred without negligence or bad faith on
its own part,
arising out of or in connection with the acceptance or
administration of the
trust or trusts hereunder, including the costs and expenses of
defending
itself against or investigating 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(vi) or Section
501(vii), 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
Issuer 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, if
any, 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 Section 310(a)(1) of the TIA 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.
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SECTION 608. Resignation and Removal; Appointment of
Successor.
(A) No resignation or removal of the Trustee and no appointment
of a
successor Trustee pursuant to this Article shall become effective
until the
acceptance of appointment by the successor Trustee in accordance
with the
applicable requirements of Section 609.
(B) The Trustee may resign at any time with respect to the
Securities
of one or more series by giving written notice thereof to the
Issuer. 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 with respect to the Securities
of such
series.
(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 Issuer.
(D) If at any time:
(i) the Trustee shall fail to comply with the provisions
of Section
310(b) of the TIA after written request therefor by the Issuer or
by any
Holder of a Security who has been a bona fide Holder of a Security
for at
least six months, or
(ii) the Trustee shall cease to be eligible under Section
607 and
shall fail to resign after written request therefor by the Issuer
or by any
Holder of a Security who has been a bona fide Holder of a Security
for at
least six months, or
(iii) 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 Issuer 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 Section 315(e) of the TIA, any Holder
of a
Security of a series 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
removal of the Trustee with respect to Securities of such series
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 Issuer,
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
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understood that any such successor Trustee may be appointed with
respect to
the Securities of one or more or all of such series and that at any
time there
shall be only one Trustee with respect to the Securities of any
particular
series). If, within one year after such resignation, removal or
incapability,
or the occurrence of such vacancy, a successor Trustee with respect
to the
Securities of any series shall be appointed by Act of the Holders
of a
majority in principal amount of the Outstanding Securities of such
series
delivered to the Issuer 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 Issuer. If
no
successor Trustee with respect to the Securities of any series
shall have been
so appointed by the Issuer 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
or the
Trustee, petition any court of competent jurisdiction for the
appointment of a
successor Trustee with respect to Securities of such series.
(F) The Issuer shall give notice of each resignation and
each removal
of the Trustee with respect to the Securities of any series and
each
appointment of a successor Trustee with respect to the Securities
of any
series in the manner provided for notices to the Holders of
Securities in
Section 106. Each notice shall include the name of the successor
Trustee with
respect to the Securities of such series and the address of its
Corporate
Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (A)
In case of
the appointment hereunder of a successor Trustee with respect to
all
Securities, every such successor Trustee shall execute, acknowledge
and
deliver to the Issuer 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 the written request of
the Issuer
or the successor Trustee, such retiring Trustee shall, upon payment
of its
charges and all sums due to it pursuant to Section 606, 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
Issuer, 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 (i) 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, (ii) 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,
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trusts and duties of the retiring Trustee with respect to the
Securities of
that or those series as to which the retiring Trustee is not
retiring shall
continue to be vested in the retiring Trustee, and (iii) 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 Trustee's 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 written request of the Issuer 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 Issuer
shall
execute any and all instruments for more fully and certainly
vesting in and
confirming to such successor Trustee all such rights, powers and
trusts
referred to in paragraph (A) or (B) of this Section, as the case
may be.
(D) No successor Trustee shall accept its appointment
unless at the
time of such acceptance such successor Trustee shall be qualified
and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or
Succession to
Business. Any corporation into which the Trustee may be merged or
converted
or with which it may be consolidated, or any corporation resulting
from any
merger, conversion or consolidation to which the Trustee shall be
a party, or
any corporation succeeding to all or substantially all of the
corporate trust
business of the Trustee, shall be the successor of the Trustee
hereunder;
provided that 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.
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SECTION 611. Appointment of Authenticating Agent. At any
time when
any of the Securities remain Outstanding, the Trustee may appoint
an
Authenticating Agent or Agents with respect to one or more series
of
Securities which shall be authorized to act on behalf of the
Trustee to
authenticate Securities of such series issued upon original
issuance,
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
Issuer. 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 Issuer
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 Issuer. 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 Issuer. 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
Issuer and
shall give notice of such appointment to all Holders of Securities
of the
series with respect to which such Authenticating Agent will serve
in the
manner set forth in Section 106. Any successor Authenticating
Agent upon
acceptance of its appointment hereunder shall become vested with
all the
rights, powers and duties of its predecessor hereunder, with like
effect as if
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originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions
of this Section.
The Issuer 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.
THE CHASE MANHATTAN BANK
as Trustee
By:____________________________,
as Authenticating Agent
By:____________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders.
Every
Holder of Securities or coupons, by receiving and holding the same,
agrees
with the Issuer and the Trustee that neither the Issuer 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
Section
312 of the TIA, 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 Section
312(b) of the
TIA.
SECTION 702. Reports by Trustee. Within 60 days after
March 15 of
each year commencing with the first March 15 after the first
issuance of
Securities pursuant to this Indenture, the Trustee shall transmit
by mail to
all Holders of Securities as provided in Section 313(c) of the TIA
a brief
report dated as of such March 15 if required by Section 313(a) of
the TIA.
SECTION 703. Reports by Issuer. The Issuer will:
(i) 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 Issuer with the conditions and covenants of this Indenture as
may be
required from time to time by such rules and regulations; and
(ii) 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 Section 313(c) of the TIA, such summaries of any
information,
documents and reports required to be filed by the Issuer pursuant
to Section
1006 and paragraph (i) of this Section as may be required by rules
and
regulations prescribed from time to time by the Commission.
SECTION 704. Issuer to Furnish Trustee Names and Addresses
of
Holders. The Issuer will furnish or cause to be furnished to the
Trustee:
(i) semiannually, not later than 10 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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(ii) at such other times as the Trustee may request in
writing,
within 30 days after the receipt by the Issuer 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 Issuer and
Sales, Leases
and Conveyances Permitted Subject to Certain Conditions. The
Issuer may
consolidate with, or sell, lease or convey all or substantially all
of its
assets to, or merge with or into any other Person; provided, that
in any such
case, (i) either the Issuer shall be the continuing entity, or the
successor
(if other than the Issuer) entity shall be a Person organized and
existing
under the laws of the United States or a State thereof and such
successor
entity shall expressly assume the due and punctual payment of the
principal of
(and premium, if any) and any interest (including all Additional
Amounts, if
any, payable pursuant to Section 1008) 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
Issuer by
supplemental indenture, complying with Article Nine hereof,
satisfactory to
the Trustee, executed and delivered to the Trustee by such Person,
(ii)
immediately after giving effect to such transaction and treating
any
indebtedness which becomes an obligation of the Issuer or any
Subsidiary as a
result thereof as having been incurred by the Issuer 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, and (iii) an Officers' Certificate
and
Opinion of Counsel covering such conditions, including that such
transaction
and such supplemental indenture comply with this Article and that
all
conditions precedent herein and in Article 9 have been complied
with, shall be
delivered to the Trustee.
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 Issuer, 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
Issuer, any
or all of the Securities issuable hereunder which theretofore shall
not have
been signed by the Issuer and delivered to the Trustee; and, upon
the order of
such successor entity, instead of the Issuer, and subject to all
the terms,
conditions and limitations in this Indenture prescribed, the
Trustee or Paying
Agent outside the United States shall authenticate and shall
deliver any
Securities which previously shall have been signed and delivered by
the
officers of the Issuer to the Trustee for authentication, and any
Securities
which such successor entity thereafter shall cause to be signed and
delivered
to the Trustee for that purpose. All the Securities so issued
shall in all
respects have the same legal rank and benefit under this Indenture
as the
Securities theretofore or thereafter issued in accordance with the
terms of
this Indenture as though all of such Securities had been issued at
the date of
the execution hereof.
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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 corporation, complies with the provisions of this Article
and that
all conditions precedent herein provided for relating to such
transaction have
been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of
Holders.
Without the consent of any Holders of Securities of any series or
coupons, the
Issuer, 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:
(i) to evidence the succession of another Person to the
Issuer and
the assumption by any such successor of the covenants of the Issuer
herein and
in the Securities contained;
(ii) to add to the covenants of the Issuer 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
Issuer;
(iii) to add any additional Events of Default for the
benefit of the
Holders of all or any series of Securities (and if such Events of
Default are
to be for the benefit of less than all series of Securities,
stating that such
Events of Default are expressly being included solely for the
benefit of such
series); provided, however, that in respect of any such additional
Events of
Default such supplemental indenture may provide for a particular
period of
grace after default (which period may be shorter or longer than
that allowed
in the case of other defaults) or may provide for an immediate
enforcement
upon such default or may limit the remedies available to the
Trustee upon such
default or may limit the right of the Holders of a majority in
aggregate
principal amount of that or those series of Securities to which
such
additional Events of Default apply to waive such default;
(iv) 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;
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(v) 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;
(vi) to secure the Securities;
(vii) to establish the form or terms of Securities of any
series and
any related coupons as permitted by Sections 201 and 301;
(viii) 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;
(ix) 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
(x) to supplement any of the provisions of this Indenture
to such
extent as shall be necessary to permit or facilitate the defeasance
and
discharge of any series of Securities pursuant to Sections 401,
1402 and 1403;
provided, that any such action shall not adversely affect the
interests of the
Holders of Securities of such series and any related coupons or any
other
series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of
Holders. With
the consent of the Holders of not less than a majority in principal
amount of
all Outstanding Securities of a series affected by such
supplemental
indenture, by Act of said Holders delivered to the Issuer and the
Trustee, the
Issuer, 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:
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(i) 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 Issuer
to pay
Additional Amounts pursuant to Section 1008 (except as contemplated
by Section
801(i) and permitted by Section 901(i)), 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, the
principal amount of any Security or any premium or any Additional
Amount
payable in respect thereof 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);
(ii) 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
(iii) modify any of the provisions of this Section,
Section 513 or
Section 1009, except to increase the required percentage to effect
such action
or to provide that certain other provisions of this Indenture
cannot be
modified or waived without the consent of the Holder of each
Outstanding
Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to
approve the particular form of any proposed supplemental indenture,
but it
shall be sufficient if such Act shall approve the substance
thereof.
A supplemental indenture which changes or eliminates any
covenant or
other provision of this Indenture which has expressly been included
solely for
the benefit of one or more particular series of 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.
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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 and
that such supplemental indenture constitutes the legal, valid and
binding
obligation of the Issuer (or successor thereto) enforceable against
such
entity in accordance with its terms (subject to customary
exceptions). 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 TIA 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 satisfactory to
the Trustee
as to any matter provided for in such supplemental indenture. If
the Issuer
shall so determine, new Securities of any series so modified as to
conform, in
the opinion of the Trustee and the Issuer, to any such supplemental
indenture
may be prepared and executed by the Issuer 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 Issuer covenants and agrees for the
benefit of the
Holders of each series of Securities that it will duly and
punctually pay by
no later than 11:00 a.m. New York City time on any payment date the
principal
of (and premium, if any) and interest, if any, on and any
Additional Amounts
payable in respect of the Securities of that series in accordance
with the
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terms of such series of Securities, any coupons appertaining
thereto and this
Indenture. Unless otherwise specified as contemplated by Section
301 with
respect to any series of Securities, any interest due on and any
Additional
Amounts payable in respect of Bearer Securities on or before
Maturity, other
than Additional Amounts, if any, payable as provided in Section
1008 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 Issuer, 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 Issuer 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
Issuer 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
Issuer will
maintain: (i) in the Borough of Manhattan, New York City, 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
Issuer 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); (ii) 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 1008); provided, however, that if the
Securities of that
series are listed on the Luxembourg Stock Exchange or any other
stock exchange
located outside the United States and such stock exchange shall so
require,
the Issuer will maintain a Paying Agent for the Securities of that
series in
Luxembourg or any other required city located outside the United
States, as
the case may be, so long as the Securities of that series are
listed on such
exchange; and (iii) 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 Issuer
in respect of the Securities of that series and this Indenture may
be served.
The Issuer 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
Issuer 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 1008) at the offices specified in the Security,
in London,
England, and the Issuer hereby appoints the same as its agent to
receive such
respective presentations, surrenders, notices and demands, and the
Issuer
hereby appoints the Trustee its agent to receive all such
presentations,
surrenders, notices and demands.
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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 Issuer 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 1008) shall be made at the office
of the
designated agent of the Issuer's Paying Agent in the Borough of
Manhattan, New
York City, 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 Issuer in accordance with this Indenture, is illegal or
effectively
precluded by exchange controls or other similar restrictions.
The Issuer 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 Issuer 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 Issuer 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 Issuer hereby designates as a Place of Payment for
each series
of Securities the office or agency of the Issuer in the Borough of
Manhattan,
New York City, 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 Issuer 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 Issuer 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 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.
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Whenever the Issuer shall have one or more Paying Agents for
any series
of Securities and any related coupons, it will, before each due
date of the
principal of (and premium, 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 Issuer will promptly notify the
Trustee of
its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee
to execute
and deliver to the Trustee an instrument in which such Paying Agent
shall
agree with the Trustee, subject to the provisions of this Section,
that such
Paying Agent will:
(i) hold all sums held by it for the payment of principal
of (and
premium, if any) or interest on Securities or Additional Amounts 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;
(ii) give the Trustee notice of any default by the Issuer
(or any
other obligor upon the Securities) in the making of any such
payment of
principal (and premium, if any) or interest or Additional Amounts;
and
(iii) 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 Issuer may at any time, for the purpose of obtaining the
satisfaction
and discharge of this Indenture or for any other purpose, pay, or
by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by
the Issuer 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 Issuer
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
Issuer, in
trust for the payment of the principal of (and premium, if any) or
interest,
if any, 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 Issuer upon Issuer Request or (if then held by
the
Issuer) shall be discharged from such trust; and the Holder of such
Security
shall thereafter, as an unsecured general creditor, look only to
the Issuer
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for payment of such principal of (and premium, if any) or interest,
if any,
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 Issuer 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
Issuer 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 Issuer.
SECTION 1004. Existence. Subject to Article Eight, the
Issuer will
do or cause to be done all things necessary to preserve and keep in
full force
and effect its existence, rights and franchises; provided, however,
that the
Issuer shall not be required to preserve any 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 Issuer and that the
loss
thereof is not disadvantageous in any material respect to the
Holders.
SECTION 1005. Payment of Taxes and Other Claims. The
Issuer will pay
or discharge or cause to be paid or discharged, before the same
shall become
delinquent, (i) all taxes, assessments and governmental charges
levied or
imposed upon it or any Subsidiary or upon the income, profits or
property of
the Issuer or any Subsidiary, and (ii) all lawful claims for labor,
materials
and supplies which, if unpaid, might by law become a lien upon the
property of
the Issuer or any Subsidiary; provided, however, that the Issuer
shall not be
required to pay or discharge or cause to be paid or discharged any
such tax,
assessment, charge or claim whose amount, applicability or validity
is being
contested in good faith by appropriate proceedings.
SECTION 1006. Provision of Financial Information. The
Operating
Partnership will within 15 days of each of the respective dates on
which the
Operating Partnership is required to file documents pursuant to
Sections 13(a)
or 15(d) of the Exchange Act (i) transmit by mail to all Holders,
as their
names and addresses appear in the Security Register, without cost
to such
Holders, and (ii) file with the Trustee, copies of the annual
reports and
quarterly reports which the Operating Partnership is required to
file with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act.
If the
Operating Partnership is no longer required to file such documents
with the
Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act,
the
Operating Partnership will provide copies of documents containing
comparative
financial information concerning the Operating Partnership in the
manner and
within the times set forth in the preceding sentence.
SECTION 1007. Statement as to Compliance. The Issuer will
deliver to
the Trustee, within 120 days after the end of each fiscal year, a
brief
certificate from the General Partner's principal executive officer,
principal
financial officer or principal accounting officer as to the
Issuer'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 1007, such compliance
shall be
determined without regard to any period of grace or requirement of
notice
under this Indenture.
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SECTION 1008. Additional Amounts. If any Securities of a
series
provide for the payment of Additional Amounts, the Issuer 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(i), 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 Issuer or the General Partner on behalf of the Issuer will
furnish the
Trustee and the Issuer'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 Issuer will pay to the Trustee or such Paying Agent the
Additional Amounts
required by the terms of such Securities. If the Trustee or any
Paying Agent,
as the case may be, shall not so receive the above-mentioned
certificate, then
the Trustee or such Paying Agent shall be 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 Issuer 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 Issuer's not, or the General Partner's on behalf of
the Issuer
not, furnishing such an Officers' Certificate.
SECTION 1009. Waiver of Certain Covenants. The Issuer may
with
respect to Securities of any series omit in any particular instance
to comply
with any term, provision or condition set forth in Sections 1004 to
1008,
inclusive, and with any other term, provision or condition with
respect to the
Securities of any series specified in accordance with Section 301
(except any
such term, provision or condition which could not be amended
without the
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consent of all Holders of Securities of such series pursuant to
Section 902),
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
shall, 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 Issuer 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.
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SECTION 1102. Election to Redeem; Notice to Trustee. The
election of
the Issuer to redeem any Securities shall be evidenced by or
pursuant to a
Board Resolution. In case of any redemption at the election of the
Issuer of
less than all of the Securities of any series, the Issuer 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, the Redemption Price per $1000 aggregate
principal
amount of Securities redeemed 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 Issuer or
the General
Partner on behalf of the Issuer 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 with the same terms are
to be
redeemed, the particular Securities to be redeemed shall be
selected not more
than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding
Securities of such series issued on such date with the same terms
not
previously called for redemption, pro rata or by lot or 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 Issuer 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 ea
ch 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.
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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:
(i) the Redemption Date,
(ii) the Redemption Price, accrued interest to the
Redemption Date
payable as provided in Section 1106, if any, and Additional
Amounts, if any,
(iii) 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,
(iv) in case any Security is to be redeemed in part only,
that on and
after the Redemption Date, upon surrender of such Security, the
holder will
receive, without a charge, a new Security or Securities of
authorized
denominations for the principal amount thereof remaining
unredeemed,
(v) 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,
(vi) 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,
(vii) that the redemption is for a sinking fund, if such
is the case,
(viii) 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 Issuer, the Trustee for such series and any Paying Agent is
furnished,
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(ix) 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 Issuer, on which such exchanges may
be made,
and
(x) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be
given by the
Issuer or, at the Issuer's written request, by the Trustee in the
name and at
the expense of the Issuer and once given, shall be irrevocable.
SECTION 1105. Deposit of Redemption Price. At least one
Business Day
prior to any Redemption Date, the Issuer shall deposit with the
Trustee or
with a Paying Agent (or, if the Issuer is acting as its own Paying
Agent,
which it may not do in the case of a sinking fund payment under
Article
Twelve, segregate and hold in trust as provided in Section 1003) an
amount of
money in the currency or currencies, currency unit or units or
composite
currency or currencies in which the Securities of such series are
payable
(except as otherwise specified pursuant to Section 301 for the
Securities of
such series) sufficient to pay on the Redemption Date the
Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment
Date) accrued
interest 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 Issuer
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 Issuer 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.
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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 Issuer 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 Paying Agent outside the United
States 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.
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 Issuer or the Trustee so requires, due
endorsement by,
or a written instrument of transfer in form satisfactory to the
Issuer and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized
in writing) and the Issuer shall execute and the Trustee shall
authenticate
and deliver to the Holder of such Security without service charge
a new
Security or Securities of the same series, of any authorized
denomination as
requested by such Holder in aggregate principal amount equal to and
in
exchange for the unredeemed portion of the principal of the
Security so
surrendered.
ARTICLE TWELVE
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.
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SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities.
The Issuer may, in satisfaction of all or any part of any mandatory
sinking
fund payment with respect to the Securities of a series, (i)
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 (ii) apply as a
credit
Securities of such series which have been redeemed either at the
election of
the Issuer 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 Issuer; 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.
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 Issuer or the General Partner on behalf of the Issuer
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 Issuer 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 Issuer 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.
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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 Issuer covenants that at least one Business
Day prior to
the Repayment Date it will deposit with the Trustee or with a
Paying Agent
(or, if the Issuer is acting as its own Paying Agent, segregate and
hold in
trust as provided in Section 1003) an amount of money in the
currency or
currencies, currency unit or units or composite currency or
currencies in
which the Securities of such series are payable (except as
otherwise specified
pursuant to Section 301 for the Securities of such series)
sufficient to pay
the principal (or, if so provided by the terms of the Securities of
any
series, a percentage of the principal) of, and (except if the
Repayment Date
shall be an Interest Payment Date) accrued interest on, all the
Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any
series subject
to repayment at the option of the Holders thereof will contain an
"Option to
Elect Repayment" form on the reverse of such Securities. In order
for any
Security to be repaid at the option of the Holder, the Trustee must
receive at
the Place of Payment therefor specified in the terms of such
Security (or at
such other place or places of which the Issuer 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 (i) 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 (ii) a telegram, facsimile transmission
or a letter
from a member of a national securities exchange, or the National
Association
of Securities Dealers, Inc., or a commercial bank or trust company
in the
United States setting forth the name of the Holder 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, facsimile
transmission or
letter; provided, however, that such telegram, 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
Issuer.
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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 Issuer on the
Repayment Date
therein specified, and on and after such Repayment Date (unless the
Issuer
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 principal amount of such Security so to be
repaid shall be
paid by the Issuer, 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 Issuer 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 Issuer
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.
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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 Issuer
shall
execute and the Trustee shall authenticate and deliver to the
Holder of such
Security, without service charge and at the expense of the Issuer,
a new
Registered Security or Securities of the same series, of any
authorized
denomination specified by the Holder, in an aggregate principal
amount equal
to and in exchange for the portion of the principal of such
Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to
Effect
Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is
made for either or both of (i) defeasance of the Securities of or
within a
series under Section 1402 or (ii) 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 Issuer 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 Issuer's
exercise
of the above option applicable to this Section with respect to any
Securities
of or within a series, the Issuer 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 Issuer 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 (i) and (ii) 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
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<PAGE>
thereto are concerned (and the Trustee, at the expense of the
Issuer, shall
execute proper instruments acknowledging the same), except for the
following
which shall survive until otherwise terminated or discharged
hereunder: (i)
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,
(ii) the Issuer'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 1008, (iii)
the rights,
powers, trusts, duties and immunities of the Trustee hereunder and
(iv) this
Article. Subject to compliance with this Article Fourteen, the
Issuer 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 Issuer's
exercise of the
above option applicable to this Section with respect to any
Securities of or
within a series, the Issuer shall be released from its obligations
under
Sections 1004 to 1008, inclusive, and, if specified pursuant to
Section 301,
its obligations under any other covenant, with respect to 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
1008,
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 Issuer 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(iv) or 501(viii) 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:
(i) The Issuer 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, (i) 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, (ii) Government
Obligations
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<PAGE>
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
one day before 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 (iii) 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
payments are due and payable in accordance with the terms of this
Indenture
and of such Securities and any coupons appertaining thereto.
(ii) 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 Issuer is a
party or by
which it is bound.
(iii) 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(vi) and 501(vii)
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).
(iv) In the case of an election under Section 1402, the
Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that
(i) the
Issuer 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.
(v) In the case of an election under Section 1403, the
Issuer 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.
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(vi) The Issuer 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 (a) as a result of a deposit
pursuant to
subsection (i) above and the related exercise of the Issuer'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 Issuer,
with respect to the trust funds representing such deposit or by the
Trustee
for such trust funds or (b) all necessary registrations under said
Act have
been effected.
(vii) After the 91st day following the deposit, the trust
funds will
not be subject to the effect of any applicable bankruptcy,
insolvency,
reorganization or similar laws affecting creditors' rights
generally.
(viii) Notwithstanding any other provisions of this
Section, such
defeasance or covenant defeasance shall be effected in compliance
with any
additional or substitute terms, conditions or limitations which may
be imposed
on the Issuer 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 Issuer 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(i) has
been made,
(i) 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(i) has been made in
respect of such
Security or (ii) a Conversion Event occurs in respect of the
currency or
currency unit in which the deposit pursuant to Section 1404(i) 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 Issuer shall pay and indemnify the Trustee against any
tax, fee or
other charge imposed on or assessed against the Government
Obligations
deposited pursuant to Section 1404 or the principal and interest
received in
respect thereof other than any such tax, fee or other charge which
by law is
for the account of the Holders of such Outstanding Securities and
any coupons
appertaining thereto.
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Anything in this Article to the contrary notwithstanding,
subject to
Section 606, the Trustee shall deliver or pay to the Issuer from
time to time
upon Issuer Request any money or Government Obligations (or other
property and
any proceeds therefrom) held by it as provided in Section 1404
which, in the
opinion of a nationally recognized firm of independent public
accountants
expressed in a written certification thereof delivered to the
Trustee, are in
excess of the amount thereof which would then be required to be
deposited to
effect a defeasance or covenant defeasance, as applicable, in
accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting
of Holders of Securities of any series may be called at any time
and from time
to time pursuant to this Article to make, give or take any request,
demand,
authorization, direction, notice, consent, waiver or other action
provided by
this Indenture to be made, given or taken by Holders of Securities
of such
series.
SECTION 1502. Call, Notice and Place of Meetings. (A)
The Trustee
may at any time call a meeting of Holders of Securities of any
series for any
purpose specified in Section 1501, to be held at such time and at
such place
in the Borough of Manhattan, New York City, or in London as the
Trustee shall
determine. Notice of every meeting of Holders of Securities of any
series,
setting forth the time and the place of such meeting and in general
terms the
action proposed to be taken at such meeting, shall be given, in the
manner
provided in Section 106, not less than 21 nor more than 180 days
prior to the
date fixed for the meeting.
(B) In case at any time the Issuer, pursuant to a Board
Resolution,
or the Holders of at least 10% in principal amount of the
Outstanding
Securities of any series shall have requested the Trustee to call
a meeting of
the Holders of Securities of such series for any purpose specified
in Section
1501, by written request setting forth in reasonable detail the
action
proposed to be taken at the meeting, and the Trustee shall not have
made the
first publication of the notice of such meeting within 21 days
after receipt
of such request or shall not thereafter proceed to cause the
meeting to be
held as provided herein, then the Issuer or the Holders of
Securities of such
series in the amount above specified, as the case may be, may
determine the
time and the place in the Borough of Manhattan, New York City, or
in London
for such meeting and may call such meeting for such purposes by
giving notice
thereof as provided in subsection A. of this Section.
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<PAGE>
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 (i) a Holder of one or more Outstanding Securities of such
series or (ii) 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 Issuer and
its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to
vote a
majority in principal amount of the Outstanding Securities of a
series shall
constitute a quorum for a meeting of Holders of Securities of such
series;
provided, however, that if any action is to be taken at such
meeting with
respect to a consent or waiver which this Indenture expressly
provides may be
given by the Holders of not less than a specified percentage in
principal
amount of the Outstanding Securities of a series, the Persons
entitled to vote
such specified percentage in principal amount of the Outstanding
Securities of
such series shall constitute a quorum. In the absence of a quorum
within 30
minutes after the time appointed for any such meeting, the meeting
shall, if
convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a
period of not
less than 10 days as determined by the chairman of the meeting
prior to the
adjournment of such meeting. In the absence of a quorum at the
reconvening of
any such adjourned meeting, such adjourned meeting may be further
adjourned
for a period of not less than 10 days as determined by the chairman
of the
meeting prior to the adjournment of such adjourned meeting. Notice
of the
reconvening of any adjourned meeting shall be given as provided in
Section
1502(A), except that such notice need be given only once not less
than five
days prior to the date on which the meeting is scheduled to be
reconvened.
Notice of the reconvening of any adjourned meeting shall state
expressly the
percentage, as provided above, of the principal amount of the
Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented
at 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.
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<PAGE>
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:
(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 Issuer or by Holders of Securities as provided in Section
1502(B), in
which case the Issuer 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.
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(C) At any meeting each Holder of a Security of such
series or proxy
shall be entitled to one vote for each $1,000 principal amount of
the
Outstanding Securities of such series held or represented by him;
provided,
however, that no vote shall be cast or counted at any meeting in
respect of
any Security challenged as not Outstanding and ruled by the
chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no
right to vote, except as a Holder of a Security of such series or
proxy.
(D) Any meeting of Holders of Securities of any series
duly called
pursuant to Section 1502 at which a quorum is present may be
adjourned from
time to time by Persons entitled to vote a majority in principal
amount of the
Outstanding Securities of such series represented at the meeting,
and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of
Meetings. The
vote upon any resolution submitted to any meeting of Holders of
Securities of
any series shall be by written ballots on which shall be subscribed
the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial
numbers of the
Outstanding Securities of such series held or represented by them.
The
permanent chairman of the meeting shall appoint two inspectors of
votes who
shall count all votes cast at the meeting for or against any
resolution and
who shall make and file with the secretary of the meeting their
verified
written reports in duplicate of all votes cast at the meeting. A
record, at
least in duplicate, of the proceedings of each meeting of Holders
of
Securities of any Series shall be prepared by the secretary of the
meeting and
there shall be attached to said record the original reports of the
inspectors
of 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 Issuer and another to the
Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots
voted at the meeting. Any record so signed and verified shall be
conclusive
evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders. Any
request,
demand authorization, direction, notice, consent, waiver or other
action
provided by this Indenture to be given or taken by a specified
percentage
in principal amount of the Holders of any or all series may be
embodied in and evidenced by one or more instruments of
substantially
similar tenor signed by such specified percentage of Holders of
such
series in person or by agent duly appointed in writing; and, except
as
herein otherwise expressly provided, such action shall become
effective when
such instrument or instruments are provided, such action shall
become
effective when such instrument or instruments are delivered to the
Trustee.
Proof of execution of any instrument or of a writing appointing any
such agent
shall be sufficient for any purpose of this Indenture and (subject
to Article
Six) conclusive in favor of the Trustee and the Issuer, if made in
the manner
provided in this Article.
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<PAGE>
SECTION 1508. Proof of Execution of Instruments. Subject
to Article
Six, the execution of any instrument by a Holder or his agent or
proxy may be
proved in accordance with such reasonable rules and regulations as
may be
prescribed by the Trustee or in such manner as shall be
satisfactory of the
Trustee.
* * * * *
This Indenture may be executed in any number of counterparts,
each of
which so executed shall be deemed to be an original, but all such
counterparts
shall together constitute but one and the same Indenture.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be
duly executed, all as of the day and year first above written.
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc., its
General Partner
By:/s/ M. Scott Collins
___________________________
Name: M. Scott Collins
Title: Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK
as Trustee
By:/s/ Richard Lorenzen
__________________________
Name: Richard Lorenzen
Title: Senior Trust Officer
86
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be
delivered]
This is to certify that, as of the date hereof, and except as
set forth
below, the above-captioned Securities held by you for our account
(i) are
owned by person(s) that are not citizens or residents of the United
States,
domestic 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 Price Development Company,
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.
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: __________________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
___________________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of 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 Price Development Company, Limited Partnership
or its agent
that such financial institution will comply with the requirements
of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and
the regulations thereunder), or (iii) is owned by United States or
foreign
financial institution(s) for purposes of resale during the
restricted period
(as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also
described in
clause (i) or (ii)) have certified that they have not acquired the
Securities
for purposes of resale directly or indirectly to a United States
person or to
a person within the United States or its possessions.
As used herein, "United States" means the United States of
America
(including the States and the District of Columbia); and its
"possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for
exchange (or, if relevant, collection of any interest) any portion
of the
temporary global Security representing the above-captioned
Securities excepted
in the above-referenced certificates of Member Organizations and
(ii) as of
the date hereof we have not received any notification from any of
our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted
herewith for
exchange (or, if relevant, collection of any interest) are no
longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with
certain tax legislation in the United States. If administrative or
legal
proceedings are commenced or threatened in connection with which
this
certificate is or would be relevant, we irrevocably authorize you
to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: _____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[ ]
as Operator of the Euroclear System
[CEDEL S.A.]
By:______________________________
<PAGE>
Exhibit 4.9
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
AND
THE CHASE MANHATTAN BANK
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 11, 1998
Supplementing the Indenture
Dated as of March 11, 1998
$100,000,000 7.29% Senior Notes due 2008
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of the 11th day of
March,
1998, between PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP, a
limited
partnership organized and existing under the laws of the State of
Maryland
(the "Issuer"), having its principal office at 35 Century Park-Way,
Salt Lake
City, Utah 84115 and The Chase Manhattan Bank, a banking
corporation organized
under the laws of the State of New York (the "Trustee"), having its
principal
corporate trust office at 450 West 33rd Street, New York, New York
10001;
WHEREAS, the Issuer has heretofore executed and delivered
to the
Trustee an Indenture dated as of March 11, 1998 (the "Original
Indenture" and,
together with this First Supplemental Indenture, the "Indenture")
providing
for the issuance by the Issuer from time to time of its unsecured
debt
securities to be issued in one or more series (in the Original
Indenture and
herein called the "Securities"); and
WHEREAS, the Issuer, in the exercise of the power and
authority
conferred upon and reserved to it under the provisions of the
Original
Indenture, has duly determined to make, execute and deliver to the
Trustee
this First Supplemental Indenture to the Original Indenture in
order to
establish the form and terms of, and to provide for the creation
and issuance
of a series of Securities designated as the $100,000,000 7.29%
Senior Notes
due 2008 under the Original Indenture; and
WHEREAS, all things necessary to make the Securities,
when executed
by the Issuer and authenticated and delivered by the Trustee or any
Authenticating Agent and issued upon the terms and subject to the
conditions
hereinafter and in the Indenture set forth against payment
therefor, the
valid, binding and legal obligations of the Issuer and to make this
First
Supplemental Indenture a valid, binding and legal agreement of the
Issuer,
have been done;
NOW, THEREFORE, for and in consideration of the premises
and of the
covenants contained in the Original Indenture and in this First
Supplemental
Indenture and for other good and valuable consideration the receipt
and
sufficiency of which are hereby acknowledged, it is mutually
covenanted and
agreed as follows:
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions. Each capitalized term that
is used
herein and is defined in the Original Indenture shall have the
meaning
specified in the Original Indenture unless such term is otherwise
defined
herein.
"Adjusted Total Assets" as of any date means the sum of
(i) $296.1
million, which represents the amount determined by multiplying the
sum of the
shares of Common Stock of the General Partner and the OP Units of
the Issuer
not held by the General Partner issued in connection with the
General
Partner's initial public offering on January 21, 1994 ("IPO") by
the IPO price
($17.50), (ii) $106.7 million, which represents the principal
amount of
outstanding Debt of the Issuer on the date of the IPO and (iii) the
purchase
price or cost of any real estate assets or mortgages receivable
acquired
(including the value of any OP Units issued in connection
therewith) or
developed or capital improvements incurred 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 in the case
of (i),
(ii) and (iii) for the proceeds of any real estate assets disposed
of by the
Issuer.
"Annual Debt Service Charge" means the amount which was
payable in
the four consecutive fiscal quarters most recently ended for
interest on Debt.
"Commission" means the United States Securities and
Exchange
Commission.
"Consolidated Income Available for Debt Service" for any
period
means Consolidated Net Income plus amounts which have been deducted
for (i)
Consolidated Interest Expense, (ii) provision for taxes of the
Issuer 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 non-cash charge resulting from
a change
in accounting principles, (vii) charges for early extinguishment of
Debt, less
amounts which have been added in determining Consolidated Net
Income during
such period, and (viii) amortization of deferred charges.
2
<PAGE>
"Consolidated Interest Expense" means, for any period,
and without
duplication, all interest (including the interest component of
rentals on
capitalized leases, letter of credit fees, commitment fees and
other like
financial charges) and all amortization of Debt discount on all
Debt
(including, without limitation, payment-in-kind, zero coupon and
other like
securities), but excluding legal fees, title insurance charges,
other
out-of-pocket fees and expenses incurred in connection with the
issuance of
Debt and the amortization of any such Debt issuance costs that are
capitalized, all determined in accordance with GAAP.
"Consolidated Net Income" for any period means the amount
of
consolidated net income (or loss) of the Issuer and its
Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Currently Adjusted Total Assets" means Adjusted Total
Assets as of
the end of the fiscal quarter covered in the Issuer'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 required under the
Exchange
Act, with the Trustee) prior to the incurrence of such additional
Debt and the
increase in Adjusted Total Assets from the end of such quarter,
including,
without limitation, any increase in Adjusted Total Assets caused by
the
incurrence of such additional Debt.
"Debt" means any indebtedness of the Issuer or any
Subsidiary
whether or not contingent, in respect of (i) borrowed money or
evidenced by
bonds, notes, debentures or similar interest instruments, (ii)
indebtedness
secured by any mortgage, pledge, lien, charge, encumbrance or any
security
interest existing on property owned by the Issuer or any
Subsidiary, (iii) the
reimbursement obligations, contingent or otherwise, in connection
with any
letters of credit actually issued or amounts representing the
balance deferred
and unpaid of the purchase price of any property except any such
balance that
constitutes an accrued expense or trade payable or (iv) any lease
of property
by the Issuer or any of its Subsidiaries as lessee which is
reflected in the
Issuer'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 Issuer's Consolidated Balance Sheet in
accordance
with GAAP, and also includes, to the extent not otherwise included,
any
obligation of the Issuer or any Subsidiary to be liable for, or to
pay, as
obligor, guarantor or otherwise (other than for purposes of
collection in the
ordinary course of business), indebtedness of another person (other
than the
Issuer or any Subsidiary).
"Exchange Act" means the Securities Exchange Act of 1934,
as
amended.
"Intercompany Debt" means indebtedness owed by the
General Partner,
the Issuer or any Subsidiary solely to the General Partner, the
Issuer or any
Subsidiary.
3
<PAGE>
"IPO" shall mean the January 21, 1994 initial public
offering of the
General Partner.
"Issuer" shall mean Price Development Company, Limited
Partnership,
a Maryland limited partnership.
"Make-Whole Amount" has the meaning specified in Section
204.
"Notes" have the meaning specified in Section 201.
"OP Units" means units of limited partner interest in the
Issuer.
"Redemption Price" has the meaning specified in Section
204.
"Reinvestment Rate" has the meaning specified in Section
204.
"Secured Debt" means Debt secured by any mortgage, lien,
charge,
encumbrance, trust deed, deed of trust, deed to secure Debt,
security
agreement, pledge, conditional sale or other title retention
agreement,
capitalized lease, or other security interest or agreement granting
or
conveying security title to or a security interest in real property
or other
tangible assets.
"Senior Executive Group" means, collectively, those
individuals
holding the offices of Chairman, President, Chief Executive
Officer, Chief
Operating Officer or any Vice President of the General Partner.
"Stated Maturity Date" shall mean March 11, 2008.
"Statistical Release" has the meaning specified in
Section 204.
"Subsidiary" means (i) any corporation, partnership,
joint venture,
limited liability company or other entity the majority of the
shares of the
non-voting capital stock or other equivalent ownership interests of
which
(except directors' qualifying shares) are at the time directly or
indirectly
owned by the Issuer, and the majority of the shares of the voting
capital
stock or other equivalent ownership interests of which (except
directors'
qualifying shares) are at the time directly or indirectly owned by
the Issuer,
the General Partner, any other Subsidiary and/or more individuals
of the
Senior Executive Group (or, in the event of death or disability of
any such
individuals, his/her respective legal representative(s)), or such
individual's
successors in office as an officer of the General Partner and (ii)
any other
entity (other than the General Partner) the accounts of which are
consolidated
with the accounts of the Issuer.
4
<PAGE>
"Trustee" means The Chase Manhattan Bank.
"Undepreciated Real Estate Assets" as of any date means
the amount
of real estate assets of the Issuer and its Subsidiaries on such
date, before
depreciation and amortization determined on a consolidated basis in
accordance
with GAAP.
"Unencumbered Currently Adjusted Total Assets" means
Currently
Adjusted Total Assets minus the value of any properties of the
Issuer and its
Subsidiaries that are encumbered by any mortgage, charge, pledge,
lien,
security interest or other encumbrance of any kind, including the
value of any
capital stock of any Subsidiary that is so encumbered. For
purposes of this
definition, the value of each of the 38 properties owned by the
Issuer at the
time of the IPO shall be determined by reference to each such
property's
contribution to net operating income of the Issuer at the time of
the IPO and
the value of each property acquired since the IPO shall be equal to
the
purchase price or cost of each such acquired property.
"Unsecured Debt" means Debt that is not Secured Debt.
Section 102. Section References. Each reference to
a particular
section set forth in this First Supplemental Indenture shall,
unless the
context otherwise requires, refer to this First Supplemental
Indenture.
ARTICLE TWO
TITLE AND TERMS OF THE NOTES
Section 201. Title of the Notes. Pursuant to Section
901 of the
Original Indenture, this First Supplemental Indenture hereby
establishes a
series of Securities of the Issuer respectively designated as the
$100,000,000
7.29% Senior Notes due 2008 (the "Notes"). For purposes of the
Original
Indenture, the Notes shall constitute a separate series of
Securities.
Section 202. Amount and Denominations; DTC. The
aggregate
principal amount of the Notes that may be issued under this First
Supplemental
Indenture is limited to $100,000,000.
The Notes shall be issuable only in a single fully
registered global
note in book-entry form, without coupons, and shall initially be
registered in
the name of The Depository Trust Company ("DTC"), or its nominee
who is hereby
designated as "Holder" under the Original Indenture. The
authorized
denominations of the Notes shall be $1,000 and integral multiples
thereof.
5
<PAGE>
Section 203. Principal and Interest.
The Notes will bear interest at a rate of 7.29% per
annum from
the date of issuance or from the immediately preceding Interest
Payment Date
(as defined below) to which interest has been paid, payable
semi-annually in
arrears on each March 11 and September 11 (each, an "Interest
Payment Date"),
commencing September 11, 1998 , and on the Stated Maturity, to the
persons
(the "Holders") in whose names the Notes are registered in the
Security
Register at the close of business on the date 15 calendar days
prior to such
Interest Payment Date (each, a "Regular Record Date") regardless of
whether
such day is a Business Day (as defined below). Interest on the
Notes will be
computed on the basis of a 360-day year of twelve 30-day months.
Installments of principal of $250 will be paid on each $1,000
principal
amount of the Notes outstanding on each March 11 (each, a
"Principal Payment
Date"), commencing on March 11, 2005. The maximum aggregate
principal payment
on each Principal Payment Date shall equal $25.0 million.
In each case, principal on the Notes will be payable to the
Holders in
whose names the Notes are registered in the Security Register at
the close of
business on the date 15 calendar days prior to such Principal
Payment Date
regardless of whether such day is a Business Day.
If any Interest Payment Date, Principal Payment Date or a
Stated
Maturity falls on a day that is not a Business Day, the required
payment shall
be made 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, Principal Payment Date
or Stated
Maturity, as the case may be. "Business Day" means any day, other
than a
Saturday or Sunday or legal holiday, on which banking institutions
in The City
of New York are open for business.
Section 204. Optional Redemption. The Notes are
subject to
redemption at the option of the Issuer, in whole or in part at any
time, from
time to time, at a redemption price (the "Redemption Price") equal
to the sum
of (i) the principal amount of the Notes being redeemed plus
accrued and
unpaid interest to the redemption date and (ii) the Make-Whole
Amount, if any.
If notice has been given as provided in the Original
Indenture and
funds for the redemption of the Notes called for redemption shall
have been
made available on the redemption date referred to in such notice,
such Notes
shall cease to bear interest on the date fixed for such redemption
specified
in such notice and the only right of the Holders from and after the
redemption
date will be to receive payment of the Redemption Price upon
surrender of such
Notes in accordance with such notice.
6
<PAGE>
Notice of any optional redemption of any Notes will be
given to
Holders at their addresses, as shown in the Security Register for
such Notes,
not less than 30 nor more than 60 days prior to the date fixed for
redemption. The notice of redemption will specify, among other
items, the
Redemption Price and the principal amount of the Notes held by such
Holder to
be redeemed.
If less than all the Notes are to be redeemed at the
option of the
Issuer, the Issuer will notify the Trustee at least 45 days prior
to giving
notice of redemption (or such shorter period as is satisfactory to
the
Trustee) of the aggregate principal amount of the Notes to be
redeemed and
their redemption date. The Trustee shall select, pro rata, by lot
or in such
manner as it shall deem fair and appropriate, Notes to be redeemed
in whole or
in part. Notes may be redeemed in part in the authorized
denomination of
$1,000 or in any integral multiple thereof.
As used herein:
"Make-Whole Amount" means, in connection with any optional
redemption or
accelerated payment of any Notes being so redeemed or accelerated,
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
and the
amount of any interest (exclusive of interest accrued to the date
of
redemption or accelerated payment) that would have been payable in
respect of
each 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,
as calculated and certified by the Issuer to the Trustee in an
Officers'
Certificate.
"Reinvestment Rate" means 0.25% plus the arithmetic mean of
the yields on
treasury securities at a constant maturity for the most recent week
under the
heading "Week Ending" published in the most recent Statistical
Release under
the caption "Treasury Constant Maturities" for the maturity
(rounded to the
nearest month) corresponding to the remaining life to maturity, as
of the
payment date of the principal being redeemed or paid. If no
maturity exactly
corresponds to such maturity, yields for the two published
maturities most
closely corresponding to such maturity shall be calculated pursuant
to the
immediately preceding sentence and the Reinvestment Rate shall be
interpolated
or extrapolated from such yields on a straight-line basis, rounding
in each of
such relevant periods to the nearest month. For the purpose 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.
7
<PAGE>
"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 under
the Indenture, then such other reasonably comparable index which
shall be
designated by the Issuer in an Officers' Certificate to the
Trustee.
Section 205. Form and Other Terms of the Notes.
Attached hereto as Exhibits A is the form of the Notes,
which form
is hereby established as the form in which the Notes shall be
executed,
authenticated and delivered in accordance with the provisions of,
and shall in
all respect be subject to, the terms, conditions and covenants of
the Original
Indenture and this First Supplemental Indenture. All of the terms
and
provisions set forth in Exhibit A are incorporated herein by
reference.
ARTICLE THREE
ADDITIONAL COVENANTS
With respect to the Notes, the following will be
additional
covenants to follow Section 1009 of the Original Indenture:
SECTION 1010. Limitations on Incurrence of Debt. The Issuer
will not,
and will not permit any Subsidiary to, incur any Debt, other than
Intercompany
Debt, if, immediately after giving effect to the incurrence of such
additional
Debt, the aggregate principal amount of all outstanding Debt of the
Issuer and
its Subsidiaries on a consolidated basis determined in accordance
with GAAP is
greater than 60% of the sum of (without duplication) (i) the
Adjusted Total
Assets of the Issuer and its Subsidiaries as of the end of the
fiscal quarter
covered in the Issuer'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 required under the Exchange Act, with the Trustee)
prior to the
incurrence of such additional Debt and (ii) the increase in
Adjusted Total
Assets from the end of such quarter, including, without limitation,
any
increase in Adjusted Total Assets caused by the incurrence of such
additional
Debt (such increase together with the Adjusted Total Assets shall
be referred
to as the "Currently Adjusted Total Assets").
SECTION 1011. Limitations on Incurrence of Secured Debt. In
addition to
the foregoing limitation on the incurrence of Debt, the Issuer will
not, and
will not permit any Subsidiary to, incur any Secured Debt if,
immediately
after giving effect to the incurrence of such additional Secured
Debt, the
aggregate principal amount of all outstanding Secured Debt of the
Issuer and
its Subsidiaries on a consolidated basis determined in accordance
with GAAP is
greater than 40% of the Currently Adjusted Total Assets.
SECTION 1012. Debt Service Coverage. In addition to the
foregoing
limitation on the incurrence of Debt, the Issuer and its
Subsidiaries will
maintain a ratio of Consolidated Income Available for Debt Service
to Annual
Debt Service Charge for the four consecutive fiscal quarters most
recently
ended prior to the date on which such additional Debt is to be
incurred of not
less than 1.5 to 1, on a pro forma basis after giving effect to the
incurrence
of such Debt and to the application of the proceeds therefrom, and
calculated
on the assumption that (i) such Debt and any other Debt incurred
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
since the
first day of such four-quarter period had occurred at the beginning
of such
period (except that, in making such computation under this
subsection (ii) or
subsection (i) above, the amount of Debt under any revolving credit
facility
8
<PAGE>
shall be computed based upon the average daily balance of such Debt
during
such period) and (iii) any increase or decrease in Adjusted Total
Assets, or
any other acquisition or disposition by the Issuer or any
Subsidiary of any
asset or group of assets, since the first day of such four-quarter
period,
including, without limitation, by merger, stock purchase or sale,
or asset
purchase or sale, had occurred at the beginning of such period, in
each case
with the appropriate adjustments to net income and Debt levels with
respect to
such increase, decrease or other acquisition or disposition being
included in
such pro forma calculation. For purposes of the adjustments
referred to in
clause (iii) of the preceding sentence, any income earned (or loss
incurred)
as a result of any such increase, decrease or other acquisition or
disposition
referred to in clause (iii) for a period of less than such
four-quarter period
shall be annualized for such four-quarter period.
SECTION 1013. Maintenance of Unencumbered Currently Adjusted
Total
Assets. The Issuer shall maintain at all times Unencumbered
Currently
Adjusted Total Assets of not less than 150% of the aggregate
principal amount
of all outstanding Unsecured Debt of the Issuer and its
Subsidiaries on a
consolidated basis.
The covenants set forth in Sections 1010, 1011, 1012
and 1013 shall not restrict the Issuer from refinancing existing
Debt, provided that the outstanding principal amount of such Debt
is
not increased.
SECTION 1014. Insurance. The Issuer will, and will cause
each of its
Subsidiaries to, keep all of their respective insurable properties
insured
against loss or damage at least equal to their then fully insurable
value with
financially sound and reputable insurance companies.
SECTION 1015. Maintenance of Properties. The
Issuer will cause all of its respective 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 Issuer 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
Issuer shall not be prevented from selling or otherwise disposing
of for value its properties in the ordinary course of business.
9
<PAGE>
ARTICLE FOUR
MISCELLANEOUS PROVISIONS
Each and every term and condition contained in the
Original
Indenture shall apply to this First Supplemental Indenture with the
same force
and effect as if the same were herein set forth in full, with such
omissions,
variations and modifications thereof as may be appropriate to make
the same
conform to this First Supplemental Indenture. As supplemented by
this First
Supplemental Indenture, the Original Indenture shall be read, taken
and
construed as one and the same instrument; provided, however, that
the rights,
duties and obligations of the Trustee in this First Supplemental
Indenture
shall be limited to those matters expressly relating to the Notes.
Nothing contained in this First Supplemental Indenture
shall or
shall be construed to confer upon any person other than a Holder of
the Notes,
the Issuer and the Trustee any right or interest to avail itself or
himself,
as the case may be, of any benefit under any provision of the
Original
Indenture or this First Supplemental Indenture. Except as amended
hereby, the
Original Indenture is in all respects ratified and confirmed and
all of the
terms thereof shall remain in full force and effect.
This First Supplemental Indenture shall be governed by,
and
construed in accordance with, the laws of the State of New York.
This First 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
instruments.
The Trustee accepts the amendment of the Original
Indenture effected
by this First Supplemental Indenture and agrees to execute the
trust created
by the Original Indenture as hereby amended, but only upon the
terms and
conditions set forth in the Original Indenture, including the terms
and
provisions defining and limiting the liabilities and
responsibilities of the
Trustee, which terms and provisions shall in like manner define and
limit its
liabilities and responsibilities in the performance of the trust
created by
the Original Indenture as hereby amended, and without limiting the
generality
of the foregoing, the Trustee shall not be responsible in any
manner
whatsoever for or with respect to any of the recitals or statements
contained
herein, all of which recitals or statements are made solely by the
Issuer or
the General Partner on behalf of the Issuer, or for or with respect
to (i) the
validity or sufficiency of this First Supplemental Indenture or any
of the
terms or provisions hereof, (ii) the proper authorization hereof by
the Issuer
or the General Partner on behalf of the Issuer by corporate action
or
otherwise, (iii) the due execution hereof by the Issuer or the
General Partner
on behalf of the Issuer or (iv) the consequences (direct or
indirect and
whether deliberate or inadvertent) of any amendment herein provided
for, and
the Trustee makes no representation with respect to such matters.
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
First
Supplemental Indenture to be duly executed as of the day and year
first above
written.
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc., its sole
general partner
By:/s/ M. Scott Collins
---------------------------
Name: M. Scott Collins
Title: Vice President and
Chief Financial Officer
THE CHASE MANHATTAN BANK, as Trustee
By:/s/ Richard Lorenzen
----------------------------
Name: Richard Lorenzen
Title: Senior Trust Officer
11
<PAGE>
Exhibit
A
[Form of Face of Note]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR
REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE
OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE,
OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP
7.29% SENIOR NOTES DUE 2008
REGISTERED PRINCIPAL AMOUNT
NO.: 1 $100,000,000
CUSIP No.:74144RAB8
PRICE DEVELOPMENT COMPANY, LIMITED PARTNERSHIP, a limited
partnership
duly organized and existing under the laws of the State of Maryland
(hereinafter called the "Issuer"), for value received, hereby
promises to pay
to CEDE & CO. or registered assigns, upon presentation, the maximum
aggregate
principal sum of ONE HUNDRED MILLION DOLLARS ($100,000,000) in
installments of
TWENTY FIVE MILLION DOLLARS ($25,000,000) on each Principal Payment
Date,
commencing on March 11, 2005, at the office or agency of the
Issuer, and to
pay interest on the outstanding principal amount thereon from the
date of
issuance, or from and including the immediately preceding Interest
Payment
Date to which interest has been paid or duly provided for,
semi-annually in
arrears on March 11 and September 11 in each year, commencing
September 11,
1998, at the rate of 7.29% per annum, computed on the basis of a
360-day year
comprised of twelve 30-day months until the entire principal hereof
is paid or
made available for payment. Installments of principal on each
Principal
Payment Date shall be in an amount equal to $250 for each $1,000
principal
amount of Securities then outstanding.
If any Principal Payment Date or Interest Payment Date would
otherwise be
a day that is not a Business Day, such Principal Payment Date or
Interest
Payment Date will be postponed to the next succeeding Business Day.
The
principal so payable, and punctually paid or duly provided for on
any
Principal Payment Date will be paid to the Holders in whose names
this
Security (or one or more Predecessor Securities) is registered at
the close of
business on the 15th calendar day (whether or not a Business Day)
next
preceding such Principal Payment Date. The interest so payable,
and
punctually paid or duly provided for on any Interest Payment Date
will, as
provided for in the Indenture, be paid to the person 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 15th
calendar day (whether or not a Business Day) next preceding such
Interest
Payment Date. 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 either be paid to the Person 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 more than 15 days and not less than 10 days prior to
such Special
Record Date, or may be paid at any time in any other lawful manner
not
inconsistent with the requirements of any securities exchange on
which 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.
<PAGE>
Payment of the principal of, or Make-Whole Amount, if
any, and
interest on, the Securities will be made at the office or agency of
the
Trustee maintained for that purpose in the City of New York as
provided in the
Indenture 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 Issuer payment of
interest may be
made by (i) check mailed to the address of the Person entitled
thereto as such
address shall appear in the Security Register or (ii) by wire
transfer of
funds to an account of the Person entitled thereto maintained
within the
United States; provided, however, that the Trustee shall have
received written
wire instructions from the Holder, by no later than the Regular
Record Date
for such Interest Payment Date. If this Security is in global
form, all such
payments will be made by wire transfer of immediately available
funds.
Securities of this series may be redeemed at any time at
the option
of the Issuer, in whole or in part, upon notice of not more than 60
nor less
than 30 days prior to the redemption date, at a Redemption Price
equal to the
sum of (i) the principal amount of the Securities being redeemed
plus accrued
and unpaid interest to the redemption date and (ii) the Make-Whole
Amount, if
any, with respect to such Securities.
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 IN THIS PLACE.
<PAGE>
Unless the Certificate of Authentication hereon has been
executed by
or on behalf of the Trustee by manual signature, 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>
IN WITNESS WHEREOF, JP Realty, Inc., the sole general
partner of the
Issuer, has caused this instrument to be duly executed on behalf of
the Issuer
and its corporate seal to be affixed and attested.
PRICE DEVELOPMENT COMPANY,
LIMITED PARTNERSHIP
By: JP Realty, Inc.,
its General Partner
ATTEST:
By: ______________________
(Corporate Seal)
Dated: By:
name:
title:
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated
therein
referred to in the within-mentioned Indenture.
The Chase Manhattan Bank,
as Trustee
By: Dated:
Authorized Officer
<PAGE>
[Form of Reverse of Note] 7.29% SENIOR NOTES DUE
2008
This Security is one of a duly authorized issue of
securities of the
Issuer designated as the $100,000,000 7.29% Senior Notes due 2008
(herein
called the "Securities"), issued and to be issued in one or more
series under
an Indenture, dated as of March 11, 1998, as supplemented by the
First
Supplemental Indenture, dated as of March 11, 1998, and as the same
may be
supplemented from time to time thereafter in accordance with the
terms thereof
(as so supplemented, herein called the "Indenture"), between the
Issuer and
The Chase Manhattan Bank, a banking corporation organized under the
laws of
the State of New York, 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 the 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 Issuer, 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 series designated on the first page
hereof,
limited in aggregate principal amount to $100,000,000.
As used herein:
"Make-Whole Amount" means, in connection with any
optional
redemption or accelerated payment of any Security being so redeemed
or
accelerated, 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 and the amount of any interest (exclusive of
interest accrued
to the date of redemption or accelerated payment) that would have
been payable
in respect of each 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 Securities being redeemed or paid, as calculated and
certified
by the Issuer to the Trustee in an Officers' Certificate.
"Reinvestment Rate" means 0.25% plus the arithmetic mean
of the
yields on treasury securities at a constant maturity for the most
recent week
under the heading "Week Ending" published in the most recent
Statistical
Release under the caption "Treasury Constant Maturities" for the
maturity
(rounded to the nearest month) corresponding to the remaining life
to
maturity, as of the payment date of the principal being redeemed or
paid. If
no maturity exactly corresponds to such maturity, yields for the
two published
maturities most closely corresponding to such maturity shall be
calculated
pursuant to the immediately preceding sentence and the Reinvestment
Rate shall
be interpolated or extrapolated from such yields on a straight-line
basis,
rounding in each of such relevant periods to the nearest month.
For the
purpose 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.
<PAGE>
"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 under
the Indenture, then such other reasonably comparable index which
shall be
designated by the Issuer in an Officers' Certificate to the
Trustee.
The covenants set forth in Article 10 of the Indenture
and Sections
1010, 1011, 1012, 1013 ,1014 and 1015 of the First Supplemental
Indenture
shall be fully applicable to this Security.
The Indenture contains provisions for defeasance at any
time of (a)
the entire indebtedness of the Issuer on this Security and (b)
certain
restrictive covenants and the related defaults and Events of
Default
applicable to the Issuer, in each case, upon compliance by the
Issuer with
certain conditions set forth in the Indenture, which provisions
apply to this
Security.
If any Event of Default with respect to Securities of
this series
shall occur and be continuing, the principal of, and any premium
and
Make-Whole Amount, if any, on, the outstanding Securities of this
series may
be declared due and payable in the manner and with the effect
provided in the
Indenture.
As provided in and subject to the provisions of the
Indenture, the
Holder of this Security shall not have the right to institute any
proceeding
with respect to the Indenture or for the appointment of a receiver
or trustee
or for any other remedy thereunder, unless such Holder shall have
previously
given the Trustee written notice of a continuing Event of Default
with respect
to the Securities of this series, the Holders of not less than 25%
in
principal amount of the Securities of this series at the time
Outstanding
shall have made written request to the Trustee to institute
proceedings in
respect of such Event of Default as Trustee, offered the Trustee
indemnity
satisfactory to the Trustee, and the Trustee shall not have
received from the
Holders of a majority in principal amount of Securities of this
series at the
time Outstanding a direction inconsistent with such request, and
the Trustee
shall have failed to institute any such proceeding, for 60 days
after receipt
of such notice, request and offer of indemnity. The foregoing
shall not apply
to any suit instituted by the Holder of this Security for the
enforcement of
any payment of principal hereof (and premium or Make-Whole Amount,
if any) or
any interest thereon in respect thereon on or after the respective
due dates
expressed herein.
The Indenture permits, with certain exceptions as therein
provided,
the amendment thereof and the modification of the rights and
obligations of
the Issuer and the rights of the Holders of the Securities of each
series to
be affected under the Indenture at any time by the Issuer and the
Trustee with
the consent of the Holders of not less than a majority in principal
amount of
the Securities of each series at the time Outstanding affected
thereby. The
Indenture also contains provisions permitting the Holders of
specified
percentages in principal amount of the Securities of each series at
the time
Outstanding, on behalf of the Holders of all Securities of such
series, to
waive compliance by the Issuer with certain provisions of the
Indenture and
certain past defaults under the Indenture and their consequences.
Any such
consent or waiver by the Holder of this Security shall be
conclusive and
binding upon such Holder and upon all future Holders of this
Security and of
any Security issued upon the registration of transfer hereof or in
exchange
hereof or in lieu hereof, whether or not notations of such consent
or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of
this
Security or of the Indenture shall alter or impair the obligation
of the
Issuer, which is absolute and unconditional, to pay the principal
of, or
premium or Make-Whole Amount, if any, on, and interest on this
Security at the
times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations
therein set forth, the transfer of this Security is registrable in
the
Security Register, upon surrender of this Security for registration
of
transfer at the office or agency of the Issuer in any Place of
Payment where
the principal of, or premium or Make-Whole Amount, if any, on, and
interest on
this Security are payable, duly endorsed by, or accompanied by a
written
instrument of transfer in form satisfactory to the Issuer and the
Security
Registrar duly executed by, the Holder hereof or his attorney duly
authorized
in writing, and thereupon one or more new Securities of this
series, of
authorized denominations and for the same aggregate principal
amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in
registered form
without coupons in denominations of $1,000 and any integral
multiple thereof.
As provided in the Indenture and subject to certain limitations
therein set
forth, Securities of this series are exchangeable for a like
aggregate
principal amount of Securities of this series of a different
authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration
of
transfer or exchange, but the Issuer 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 Issuer, the Trustee and any agent of the Issuer 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 Issuer, the Trustee nor any such agent shall be affected by
notice to the
contrary.
All terms used in this Security not defined herein which
are defined
in the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS
SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE
OF NEW YORK.
Pursuant to a recommendation promulgated by the Committee
on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP"
numbers to
be printed on the Securities of this series as a convenience to the
Holders of
such Securities. No representation is made as to the correctness
or accuracy
of such CUSIP numbers as printed on the Securities, and reliance
may be placed
only on the other identification numbers printed hereon.
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<PAGE>
