As filed with the Securities and Exchange Commission on January 20, 1998
Registration No. 333-42441
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMDENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
MID-AMERICA CAPITAL PARTNERS, L.P.
AND
MID-AMERICA FINANCE, INC.
(Exact name of registrants as specified in their charters)
62-1717980
DELAWARE applied for
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Nos.)
C/O CT CORPORATION TRUST COMPANY
1209 ORANGE STREET
WILMINGTON, DELAWARE 19801
(302) 777-0205
(Address, including zip code, and telephone number,
including area code of principal executive office)
C/O CT CORPORATION TRUST COMPANY
1209 ORANGE STREET
WILMINGTON, DELAWARE 19801
(302) 777-0205
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
A. CURTIS GREER II, ESQ.
JOHN A. GOOD, ESQ. MALCOLM P. WATTMAN, ESQ.
BAKER, DONELSON, BEARMAN & CALDWELL CADWALADER, WICKERSHAM & TAFT
165 MADISON AVENUE, SUITE 2000 100 MAIDEN LANE
MEMPHIS, TENNESSEE 38103 NEW YORK, NEW YORK 10038
(901) 577-2148 TELEPHONE (212) 504-6000 TELEPHONE
(901) 577-2303 FACSIMILE (212) 504-6666 FACSIMILE
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement. If the only
securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Amount Proposed Maximum Proposed Maximum Amount of
Title of Securities Being Offering Price Aggregate Registration
Being Registered Registered Per Unit Offering Price Fee
<S> <C> <C> <C> <C>
Commercial Mortgage Pass Through Certificates(1). $150,000,000 100%(2) $150,000,000 $44,250
% Bonds, Due 2003 ............................... (1) (2) (1) (1)
================================================= =============== ================= =================== ====================
</TABLE>
(1) The Commercial Mortgage Pass Through Certificates will evidence, in the
aggregate, all of the beneficial ownership interests in Mid-America
Mortgage Trust, 1998-1, the only assets of which are the $ aggregate
principal amount of % Bonds, Due 2003 of Mid-America Capital Partners,
L.P.
(2) In no event will the maximum aggregate offering price of all securities
issued pursuant to this Registration Statement exceed $150,000,000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE>
Explanatory Note: The purpose of this
amendment is to file Exhibits 4.1, 4.2, 5.1 and 10.3
to the Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. EXHIBITS.
EXHIBITS
NUMBER DESCRIPTION
- ------ -----------
1.1* Underwriting Agreement
3.1** Certificate of Limited Partnership of Mid-America Capital Partners,
L.P.
3.2** Limited Partnership Agreement between MAAC, Inc., as General Partner
and Mid-America Apartments, L.P., a limited partner relating to the
formation of Mid-America Capital Partners, L.P., a Delaware limited
partnership
3.3** Certificate of Incorporation of MAACP, Inc.
3.4** Bylaws of MAACP, Inc.
3.5** Certificate of Incorporation of Mid-America Finance, Inc.
3.6** Bylaws of Mid-America Finance, Inc.
4.1 Form of Restated Supplemental Indenture among Mid-America Capital
Partners, L.P. and Mid-America Apartments, as issuer and La Salle
National Bank, as Trustee
4.2 Form of Trust Agreement between Mid-America Finance, Inc. as
depositor and La Salle National Bank, as Trustee
4.3* Form of Certificate
4.4 Form of Bond (included in Exhibit 4.1)
5.1 Opinion of Baker, Donelson, Bearman & Caldwell, a professional
corporation
10.1** Cash Collateral Account Security, Pledge and Assignment Agreement
among Mid-America Capital Partners, L.P. and Mid-America Apartments,
L.P. and First Union Bank, and Morgan Stanley Mortgage Capital,
Inc., and La Salle National Bank dated November 21, 1997
10.2** Form of Deed of Trust, Assignment of Leases and Rents and Security
Agreement
10.3 Form of First Amendment to Cash Collateral Agreement
12.1* Statement re: Computation of Ratio of Earnings to Fixed Charges
23.1** Consent of KPMG Peat Marwick L.L.P.
23.2** Consent of KPMG Peat Marwick L.L.P.
23.3 Consent of Baker, Donelson, Bearman & Caldwell, a professional
corporation (included in Exhibit 5.1)
23.4* Consent of Cushman & Wakefield
23.5* Consent of Creative Project Management, Inc.
24.1** Power of Attorney (included on the signature page of the
Registration Statement)
25.1* Statement of Eligibility and Qualification of Indenture Trustee on
Form T-1
- ----------------
* To be filed by amendment.
** Previously filed as an Exhibit to the Company's Registration Statement on
Form S-3, File No. 333-42441, and incorporated by reference herein.
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Act of 1933, the Registrants
certify that they have reasonable grounds to believe that they meet all of the
requirements for filing on Form S-3 and have duly caused this Amendment No. 1 to
the Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Memphis, State of Tennessee, on
January 20, 1998.
MID-AMERICA CAPITAL PARTNERS, L.P.
a Delaware limited partnership (Registrant)
By: MAACP, Inc.
Its: General Partner
By:/s/ SIMON R.C. WADSWORTH
Simon R.C. Wadsworth, President
By:/s/ LYNN A. JOHNSON
Lynn A. Johnson, Secretary-Treasurer
MID-AMERICA FINANCE, INC.,
a Delaware corporation (Registrant)
By:/s/ SIMON R.C. WADSWORTH
Simon R. C. Wadsworth, President
By:/s/ LYNN A. JOHNSON
Lynn A. Johnson, Secretary-Treasurer
<PAGE>
INDEX TO EXHIBITS
EXHIBITS
NUMBER DESCRIPTION
- ------ -----------
1.1* Underwriting Agreement
3.1** Certificate of Limited Partnership of Mid-America Capital Partners,
L.P.
3.2** Limited Partnership Agreement between MAAC, Inc., as General Partner
and Mid-America Apartments, L.P., a limited partner relating to the
formation of Mid-America Capital Partners, L.P., a Delaware limited
partnership
3.3** Certificate of Incorporation of MAACP, Inc.
3.4** Bylaws of MAACP, Inc.
3.5** Certificate of Incorporation of Mid-America Finance, Inc.
3.6** Bylaws of Mid-America Finance, Inc.
4.1 Form of Restated Supplemental Indenture among Mid-America Capital
Partners, L.P. and Mid-America Apartments, as issuer and La Salle
National Bank, as Trustee
4.2 Form of Trust Agreement between Mid-America Finance, Inc. as
depositor and La Salle National Bank, as Trustee
4.3* Form of Certificate
4.4 Form of Bond (included in Exhibit 4.1)
5.1 Opinion of Baker, Donelson, Bearman & Caldwell, a professional
corporation
10.1** Cash Collateral Account Security, Pledge and Assignment Agreement
among Mid-America Capital Partners, L.P. and Mid-America Apartments,
L.P. and First Union Bank, and Morgan Stanley Mortgage Capital,
Inc., and La Salle National Bank dated November 21, 1997
10.2** Form of Deed of Trust, Assignment of Leases and Rents and Security
Agreement
10.3 Form of First Amendment to Cash Collateral Agreement
12.1* Statement re: Computation of Ratio of Earnings to Fixed Charges
23.1** Consent of KPMG Peat Marwick L.L.P.
23.2** Consent of KPMG Peat Marwick L.L.P.
23.3 Consent of Baker, Donelson, Bearman & Caldwell, a professional
corporation (included in Exhibit 5.1)
23.4* Consent of Cushman & Wakefield
23.5* Consent of Creative Project Management, Inc.
24.1** Power of Attorney (included on the signature page of the
Registration Statement)
25.1* Statement of Eligibility and Qualification of Indenture Trustee on
Form T-1
- -----------------
* To be filed by amendment.
** Previously filed as an Exhibit to the Company's Registration Statement on
Form S-3, File No. 333-42441, and incorporated by reference herein.
EXHIBIT 4.1
CWT DRAFT: 1/19/98
MID-AMERICA CAPITAL PARTNERS, L.P.
and
MID-AMERICA APARTMENTS, L.P.
as Issuer
and
LASALLE NATIONAL BANK
as Trustee
RESTATED SUPPLEMENTAL INDENTURE
Dated Effective as of November 21, 1997
[___]% First Mortgage Bonds, Due 2003
<PAGE>
TABLE OF CONTENTS(1)
SECTION PAGE
ARTICLE ONE
DEFINITIONS
1.01. Definitions............................................................2
1.02. Incorporation by Reference of Trust Indenture Act.....................14
1.03. Rules of Construction.................................................15
ARTICLE TWO
ISSUANCE, DESCRIPTION, EXECUTION AND EXCHANGE OF SECURITIES
2.01. Designation, Amount and Issue of Securities...........................15
2.02. Authentication and Delivery of Securities.............................15
2.03. Form of Securities and Trustee's Certificate of Authentication........15
2.04. Denomination and Date of Securities; Payment of Principal and Interest;
Global Securities.....................................................16
2.05. Execution of Securities...............................................18
2.06. Exchange and Registration of Transfer of Securities...................19
2.07. Mutilated, Destroyed, Lost or Stolen Securities.......................20
2.08. Cancellation of Surrendered Securities................................21
2.09. Temporary Securities..................................................21
ARTICLE THREE
NO PREPAYMENT OF SECURITIES
3.01. No Prepayment.........................................................21
ARTICLE FOUR
PARTICULAR COVENANTS, REPRESENTATIONS AND WARRANTIES OF ISSUER
4.01. Validity of Securities; Title to Trust Estate; Lien...................21
4.02. Maintenance of Liens and Recording....................................22
4.03. Performance and Enforcement...........................................23
4.04. Payment of Principal of, Premium, if Any, and Interest on Securities..23
4.05. SEC Reports...........................................................23
4.06. Limitation on Debt....................................................24
4.07. Limitation on Secured Debt............................................24
4.08. Unencumbered Assets...................................................24
4.09. Limitation on Transactions with Affiliates............................24
4.10. Appointment of Agents.................................................24
4.11. Paying Agents To Hold Funds in Trust..................................25
4.12. Appointment of Trustee by Issuer......................................25
4.13. Availability of Information...........................................25
4.14. Books of Account; Inspection by Trustee; Notices; Statements as to
Compliance............................................................26
4.15. Payment of Taxes and Other Claims.....................................28
4.16. Corporate Existence and Rights........................................28
4.17. Certificate and Opinion as to Conditions Precedent....................28
4.18. Statements Required in Certificate or Opinion.........................29
4.19. Debt Service Coverage.................................................29
4.20. Restrictions on Partnership...........................................30
4.21. Maintenance of Properties.............................................30
4.22. Insurance.............................................................30
4.23. Permitted Merger......................................................30
4.24. Further Instruments and Acts..........................................30
- --------
(1) The Table of Contents is not part of this Indenture.
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
5.01. Events of Default.....................................................31
5.02. Acceleration..........................................................33
5.03. Other Remedies........................................................33
5.04. Waiver of Past Defaults...............................................34
5.05. Control by Majority...................................................34
5.06. Limitation on Suits...................................................34
5.07. Rights of Holders To Receive Payment..................................35
5.08. Collection Suit by Trustee............................................35
5.09. Trustee May File Proofs of Claim......................................35
5.10. Priorities............................................................35
5.11. Undertaking for Costs.................................................36
5.12. Waiver of Stay or Extension Laws......................................36
ARTICLE SIX
DISCHARGE OF INDENTURE; DEFEASANCE
6.01. Discharge of Liability on Securities; Defeasance......................36
6.02. Conditions to Defeasance..............................................37
6.03. Application of Trust Money............................................38
6.04. Repayment to Issuer...................................................38
6.05. Indemnity for Government Obligations..................................39
6.06. Reinstatement.........................................................39
ARTICLE SEVEN
CONCERNING THE TRUSTEE
7.01. Duties of Trustee.....................................................39
7.02. Rights of Trustee.....................................................40
7.03. Individual Rights of Trustee..........................................41
7.04. Trustee's Disclaimer..................................................41
7.05. Notice of Defaults....................................................42
7.06. Reports by Trustee to Holders.........................................42
7.07. Compensation and Indemnity............................................42
7.08. Replacement of Trustee................................................43
7.09. Successor Trustee by Merger...........................................44
7.10. Eligibility: Disqualification.........................................44
7.11. Preferential Collection of Claims Against Issuer......................44
7.12. Separate and Co-trustees..............................................44
7.13. Servicer..............................................................45
7.14. Advances..............................................................46
7.15. Priorities of Payment.................................................46
7.16. Errors and Omissions Insurance........................................46
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
8.01. Amendments and Supplemental Indentures Without Consent of Holders.....47
8.02. Amendments and Supplemental Indentures With Consent of Holders........47
8.03. Compliance with Trust Indenture.......................................49
8.04. Revocation and Effect of Consents.....................................49
8.05. Notation on or Exchange of Securities.................................49
8.06. Trustee To Sign Amendments............................................49
8.07. Effect of Amendments and Supplemental Indentures......................49
8.08. Waiver of Compliance by Holders.......................................50
ARTICLE NINE
PERMITTED MERGER AND RELEASE OF PORTION OF TRUST ESTATE
9.01. When Issuer May Merge.................................................50
9.02. Conditions Precedent to Permitted Merger..............................50
9.03. Release of Portion of Trust Estate....................................51
9.04. Notice to Holders.....................................................52
9.05. Consolidations and Mergers of, Sales, Leases and Conveyances
by, MAALP ..........................................................52
9.06. Rights and Duties of Successor........................................52
9.07. Officers' Certificate and Opinion of Counsel..........................53
ARTICLE TEN
MEETINGS OF HOLDERS OF SECURITIES
10.01. Purposes for Which Meetings May Be Called ...........................53
10.02. Call Notice and Place of Meetings ...................................53
10.03. Persons Entitled to Vote at Meetings ................................53
10.04. Quorum; Action ......................................................54
10.05. Determination of Voting Rights; Conduct and Adjournment of Meetings..55
10.06. Counting Votes and Recording Action of Meetings .....................55
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
11.01. Trust Indenture Act Controls ........................................56
11.02. Communication by Holders with Other Holders .........................56
11.03. Compliance Certificates and Opinions ................................56
11.04. Form of Documents Delivered to Trustee ..............................56
11.05. Acts of Holders .....................................................57
11.06. Notices .............................................................58
11.07. When Treasury Securities Disregarded ................................59
11.08. Rules by Paying Agent and Registrar .................................59
11.09. Legal Holidays ......................................................59
11.10. Successors ..........................................................59
11.11. Multiple Originals ..................................................60
11.12. Security Agreement ..................................................60
11.13. Separability Clause .................................................60
11.14. Governing Law .......................................................60
11.15. Table of Contents; Headings .........................................60
11.16. Limitation on Recourse ..............................................60
Exhibit A Form of First Mortgage Bond
Exhibit B Mortgaged Properties
Exhibit C Form of Mortgage
Exhibit D Cash Collateral Agreement
Exhibit E Form of Release Certificate
<PAGE>
MID-AMERICA CAPITAL PARTNERS, L.P.
AND
MID-AMERICA APARTMENTS, L.P.
[ ]% First Mortgage Bonds, Due 2003
CROSS-REFERENCE TABLE
Between the Indenture and the Trust Indenture Act of 1939
TIA SECTION INDENTURE SECTION
310(a)(1).............................. 7.10
(a)(2).............................. 7.10
(a)(3).............................. 7.12
(a)(4).............................. Not Applicable
(b)................................. 7.08; 7.10
(c)................................. Not Applicable
311(a)................................. 7.11
(b)................................. 7.11
(c)................................. Not Applicable
312(a)................................. 4.13
(b)................................. 11.02
(c)................................. 11.02
313(a)................................. 7.06
(b)................................. 7.06
(c)................................. 7.06; 11.06
(d)................................. 7.06
314(a)................................. 4.05; 4.14; 11.06
(b)................................. 4.02
(c)(1).............................. 4.17
(c)(2).............................. 4.17
(c)(3).............................. 4.17
(d)................................. Not Applicable
(e)................................. 4.18
315(a)................................. 7.01
(b)................................. 7.05; 11.06
(c)................................. 7.01
(d)................................. 7.01
(e)................................. 5.11
316(a) (last sentence)................. 11.07
(a)(1)(A)........................... 5.05
(a)(1)(B)........................... 5.04
(a)(2).............................. Not Applicable
(b)................................. 5.07
317(a)(1).............................. 5.08
(a)(2).............................. 5.09
(b)................................. 4.11
318(a)................................. 11.01
- ---------------------------
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
-7-
THIS RESTATED SUPPLEMENTAL INDENTURE, dated effective as of November
21, 1997, between MID-AMERICA CAPITAL PARTNERS, L.P., a Delaware limited
partnership (the "PARTNERSHIP"), MID-AMERICA APARTMENTS, L.P., a Tennessee
limited partnership ("MAALP"), and LASALLE NATIONAL BANK, a national banking
association, as trustee hereunder (the "TRUSTEE").
WHEREAS, the Partnership on November 21, 1997 or thereafter executed
and delivered to the Trustee, as beneficiary, Mortgages (as hereinafter defined)
with respect to the land and improvements constituting the multifamily
residential properties set forth on Exhibit B (together with certain other
property as described in the relevant Mortgages, individually, a "MORTGAGED
PROPERTY" and, collectively, the "MORTGAGED PROPERTIES") pursuant to the terms
of the Indenture, dated as of November 21, 1997 (the "ORIGINAL INDENTURE"),
between the Partnership and MAALP, as issuer, and the Trustee, as trustee;
WHEREAS, concurrently with the execution and delivery of the
Original Indenture, the Issuer entered into the Cash Collateral Agreement (as
hereinafter defined);
WHEREAS, the Partnership desires to issue and sell to Mid-America
Finance, Inc. (the "Depositor") the [___]% First Mortgage Bonds, Due 2003 (the
"FIRST MORTGAGE BONDS") of the Partnership, secured by the Mortgages with
respect to the Mortgaged Properties, by the Cash Collateral Agreement and by
other collateral as set forth herein, all on the terms and subject to the
conditions hereof;
WHEREAS, the Partnership has issued its First Mortgage Bridge Notes
on the terms and subject to the conditions of the Original Indenture;
WHEREAS, concurrently with the execution and delivery of this
Restated Supplemental Indenture the Issuer is repaying in full such First
Mortgage Bridge Notes in accordance with their terms, being all of the
securities outstanding under the Original Indenture;
WHEREAS, in connection with the transactions described above, the
parties hereto are hereby restating and supplementing the Original Indenture,
which shall remain in full force and effect; and
WHEREAS, the text of the First Mortgage Bonds is to be substantially
in the form of Exhibit A hereto:
NOW, THEREFORE, THIS RESTATED SUPPLEMENTAL INDENTURE WITNESSETH:
That the Partnership, in consideration of the premises, the acceptance by the
Trustee of the trusts created hereby, the purchase and acceptance of the
Securities by the purchasers thereof, and other good and valuable consideration,
the receipt of which is hereby acknowledged, and in order to secure the payment
and performance of the Obligations according to the terms hereof and to declare
the terms and conditions upon and subject to which the Obligations are to be
secured, has executed and delivered this Indenture and the other Security
Documents and the Partnership hereby pledges, and has thereby pledged or has
caused to be pledged, unto the Trustee and its successors in the trusts hereby
created and assigns forever, subject to the terms hereof and thereof, all of the
Partnership's estate, right, title and interest in, to and under any and all of
the Trust Estate (including, without limitation, any and all extensions and
modifications thereof, any and all rights to make claim for, collect, receive
and receipt for any and all rents, income, revenues, issues, profits, security
and other moneys payable or receivable thereunder or with respect thereto, to
bring proceedings thereunder or for the specific or other enforcement thereof or
with respect thereto, in the name of the Partnership or otherwise, and the right
to make all waivers and agreements, to grant or refuse requests, to give or
withhold notices, and to execute and deliver, in the name and on behalf of the
Partnership, as agent and attorney-in-fact, any and all instruments in
connection therewith and to do any and all things which the Partnership is or
may be entitled to do thereunder, all as limited by and more fully described in
this Indenture and in the other Security Documents and any other instruments
included in the Trust Estate), but no obligation of the Partnership under the
provisions thereof or hereof or with respect thereto or hereto has been impaired
or diminished by virtue thereof, nor has any such obligation been imposed upon
the Trustee;
TO HAVE AND TO HOLD all and singular the Trust Estate, whether now
owned or held or hereafter acquired, unto the Trustee, its successors in the
trusts created hereby and assigns forever;
IN TRUST, NEVERTHELESS, upon the terms herein set forth for the
benefit and security of the Holders of the Securities issued and to be issued
hereunder, and for enforcement of the Obligations, all as herein set forth.
IT IS HEREBY COVENANTED, DECLARED AND AGREED by the Issuer that the
Securities are to be issued and secured, and that the Trust Estate is to be held
and disposed of by the Trustee, upon and subject to the provisions of this
Indenture.
ARTICLE ONE
DEFINITIONS
SECTION 1.01. DEFINITIONS. The terms defined in this Section (except
as herein otherwise expressly provided or unless the context otherwise
requires), for all purposes of this Indenture and of any indenture supplemental
hereto, shall have the respective meanings specified in this Section 1.01.
ACCOUNTS: The term "Accounts" has the meaning specified in the
fourth recital to the Cash Collateral Agreement.
ACTS or ACTS OF HOLDERS: The term "Acts" or "Acts of Holders" has
the meaning specified in Section 11.05.
ADVANCE: The term "Advance" means any Interest Advance, Property
Advance or Fees Advance made by the Trustee. Each reference to the payment or
reimbursement of an Advance shall be deemed to include, whether or not
specifically referred to, payment or reimbursement of interest thereon at the
Advance Rate from and including the date of the making of such Advance through
and including the date of payment or reimbursement.
ADVANCE RATE: The term "Advance Rate" means a rate per annum equal
to the prime rate of the Trustee, as in effect as of each Payment Date,
compounded monthly.
AFFILIATE: The term "Affiliate" means with respect to any Person,
(i) any other Person (or group of Persons acting in concert in respect of such
specified Person) which, directly or indirectly, is in control of, is controlled
by or is under common control with such specified Person or (ii) any other
Person who is a director, executive officer or general partner (a) of such
specified Person, (b) of any Subsidiary of such specified Person or (c) of any
Person described in clause (i) above. For purposes of this definition, "control"
of a Person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise; and the verbs "control" and "controlled" have meanings correlative to
the foregoing.
ANNUAL SERVICE CHARGE: The term "Annual Service Charge" means, as of
any date, the amount which is expensed in any 12-month period for interest on
Debt of MAALP and its Subsidiaries.
APPRAISED VALUE: The term "Appraised Value" means, with respect to
any Mortgaged Property, the fair market value of such Mortgaged Property as
determined by the appraisal of such Mortgaged Property prepared by an Appraiser.
APPRAISER: The term "Appraiser" means an MAI appraiser which shall
be independent within the meaning of the TIA, designated by the Partnership and
reasonably satisfactory to the Trustee.
ASSIGNMENT OF LEASES AND RENTS: The term "Assignment of Leases and
Rents" means the assignment of leases and rents, dated as of November 21, 1997,
from the Partnership to the Trustee, with respect to the Mortgaged Properties.
BANKRUPTCY LAW: The term "Bankruptcy Law" means Title 11, United
States Code, or any similar Federal or state law for the relief of debtors.
BENEFICIAL OWNER: The term "Beneficial Owner" means, with respect to
a Global Certificate, the Person who is the beneficial owner of such Certificate
as reflected on the books of the Depository or on the books of a Person
maintaining an account with such Depository (directly as a Depository
Participant or indirectly through a Depository Participant, in accordance with
the rules of such Depository). The Trustee shall have the right to require, as a
condition to acknowledging the status of any Person as a Beneficial Owner under
this Indenture, that such Person provide evidence at its expense to the Trustee
of its status as a Beneficial Owner hereunder.
BOARD OF DIRECTORS: The term "Board of Directors" means the board of
directors of the general partner of the Issuer.
BORROWER'S CERTIFICATE: The term "Borrower's Certificate" means that
certain certificate of the Partnership, dated November 21, 1997, to the Trustee.
BUSINESS DAY: The term "Business Day" means each day which is not a
Legal Holiday.
CAPITAL STOCK: The term "Capital Stock" means, with respect to any
corporation, any and all shares, interests, rights to purchase, warrants,
options, participations or other equivalents of or interests in (however
designated) corporate stock, including any preferred stock of such corporation.
CASH: The term "Cash" means coin or currency of the United States.
CASH COLLATERAL AGREEMENT: The term "Cash Collateral Agreement"
means the Cash Collateral Account, Security, Pledge and Assignment Agreement
dated as of November 21, 1997, as amended by the First Amendment to Cash
Collateral Account, Security, Pledge and Assignment Agreement dated as of
January 20, 1998, together attached hereto as Exhibit E, all similar agreements
hereafter executed, and all supplements and amendments to the foregoing.
CERTIFICATE TRUST: The term "Certificate Trust" means Mid-America
Mortgage Trust, 1998-1, created under the Trust Agreement.
CERTIFICATE TRUSTEE: The term "Certificate Trustee" means LaSalle
National Bank, as trustee under the Trust Agreement, and its permitted
successors as trustee thereunder.
CERTIFICATES: The term "Certificates" means the Commercial Mortgage
Pass-Through Certificates, Series 1998-1 of the Certificate Trust, issued
pursuant to the Trust Agreement.
CONSOLIDATED INCOME AVAILABLE FOR DEBT SERVICE: The term
"Consolidated Income Available for Debt Service" means, for any period,
Consolidated Net Income plus amounts which have been deducted for (a) interest
on Debt of MAALP and its Subsidiaries, (b) provision of taxes based on income,
(c) amortization of Debt discount, (d) provisions for losses on properties, (e)
depreciation and amortization, (f) the effect of any noncash charge resulting
from a change in accounting principles in determining Consolidated Net Income
for such period and (g) amortization of deferred charges.
CONSOLIDATED NET INCOME: The term "Consolidated Net Income" means,
for any period, the amount of consolidated net income (or loss) of MAALP and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP.
CONTRIBUTION AGREEMENT: The term "Contribution Agreement" means the
Contribution Agreement, dated November 25, 1997, between MAALP and the
Partnership with respect to the contribution of the Mortgaged Properties by
MAALP to the Partnership.
CORPORATE TRUST OFFICE: The term "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, as of the date hereof,
is located at 135 South LaSalle Street, Suite 1625, Chicago, Illinois
60674-4107, Attention: Asset Backed Securities Trust Services Group--Mid-America
1997.
CUSTODIAN: The term "Custodian" means any receiver, trustee,
assignee, liquidator, custodian or similar official under any Bankruptcy Law.
DEBT: The term "Debt" of the Issuer or any Subsidiary means any
indebtedness of the Issuer or such Subsidiary, as applicable, whether or not
contingent, in respect of (i) borrowed money evidenced by bonds, notes,
debentures or similar instrument, (ii) indebtedness secured by any mortgage,
pledge, lien, charge, encumbrance or any security interest existing on property
owned by the Issuer or such Subsidiary, (iii) the reimbursement obligations,
contingent or otherwise, in connection with any letters of credit actually
issued or amounts representing the balance that constitutes an accrued expense
or trade payable or (iv) any lease of property by the Issuer or such Subsidiary
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
under clauses (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 such 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).
DEBT SERVICE: The term "Debt Service" means, with respect to any
period, the amount of debt service on the Securities then Outstanding during
such period (based on an assumed debt service constant of 9.25% per annum).
DEBT SERVICE COVERAGE RATIO: The term "Debt Service Coverage Ratio"
means, with respect to any period prior to the Permitted Merger Date, the ratio
of Net Operating Income of the Partnership for such period to Debt Service.
After the Permitted Merger Date, the term "Debt Service Coverage Ratio" shall
mean, with respect to MAALP, the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge.
DEFAULT: The term "Default" means any condition or event which
constitutes or which, after notice or lapse of time or both, would constitute an
Event of Default hereunder.
DEPOSITOR: The term "Depositor" has the meaning specified in the
third recital hereof.
DEPOSITORY: The term "Depository" means the Depository Trust Company
or a successor appointed by the Security Registrar (which appointment shall be
at the direction of the Issuer if the Issuer is legally able to do so).
DEPOSITORY PARTICIPANT: The term "Depository Participant" means a
Person for whom, from time to time, the Depository effects book-entry transfers
and pledges of securities deposited with the Depository.
EVENT OF DEFAULT: The term "Event of Default" means any event
specified as such in Section 5.01, continued for the period of time, if any, and
after the giving of notice, if any, therein provided.
EXCHANGE ACT: The term "Exchange Act" means the Securities Exchange
Act of 1934, as amended.
FEES ADVANCE: The term "Fees Advance" means any advance made by the
Trustee in respect of any payment of fees or expenses of (a) the Trustee
hereunder, (b) the Certificate Trustee under the Trust Agreement or (c) the
Servicer, if any.
FIRST MORTGAGE BONDS: The term "First Mortgage Bonds" means the
[___]% First Mortgage Bonds, Due 2003 of the Issuer issuable pursuant to this
Indenture.
GAAP: The term "GAAP" means generally accepted accounting principles
as in effect from time to time in the United States, consistently applied.
GLOBAL CERTIFICATE: The term "Global Certificate" means a
certificate in global form representing the aggregate principal amount of First
Mortgage Bonds specified therein in denominations of $100,000 and such greater
denominations as are whole multiples of $1,000.
HOLDER; SECURITYHOLDER: The term "Holder" of a Security and the term
"Securityholder" each mean the Person in whose name such Security is registered
at the time on the Security Register kept for that purpose in accordance with
the terms hereof.
INDENTURE: The term "Indenture" means this Restated Supplemental
Indenture as originally executed or as it may from time to time be amended or
supplemented by one or more indentures supplemental hereto entered into, in each
case pursuant to the applicable provisions hereof.
INDEPENDENT ACCOUNTANTS: The term "Independent Accountants" means a
firm of independent public accountants meeting the requirements therefor under
the Securities Act and rules and regulations of the SEC, which shall be KMPG
Peat Marwick, LLP or another "Big-Six" firm of independent certified public
accountants of nationally recognized standing selected by the Issuer and
reasonably satisfactory to the Trustee.
INDIVIDUAL CERTIFICATE: The term "Individual Certificate" means a
definitive certificate in fully registered form without coupons, representing a
First Mortgage Bond.
INFORMATION STATEMENT: The term "Information Statement" means an
information statement of MAALP in respect of the Permitted Merger prepared in
accordance with the Exchange Act.
INTEREST ADVANCE: The term "Interest Advance" means any advance made
by the Trustee to the Securityholders in respect of interest due on any Payment
Date prior to the Permitted Merger Date.
INTEREST RATE: The term "Interest Rate" means a rate of [_____]% per
annum.
ISSUE: The term "issue" means issue, assume, guarantee, incur or
otherwise become liable for.
ISSUE DATE: The term "Issue Date" means, with respect to the First
Mortgage Bonds, the date of original issuance of the First Mortgage Bonds.
ISSUER: The term "Issuer" means the Partnership until but excluding
the Permitted Merger Date and, from and after the Permitted Merger Date, MAALP,
each until a successor replaces it, and thereafter, means the successor, and,
for purposes of any provision contained herein and required by the TIA, each
other obligor on the Securities.
ISSUER ORDER AND ISSUER REQUEST: The terms "Issuer Order" and
"Issuer Request" mean, respectively, a written order or request signed in the
name of the Issuer by the Chief Executive Officer, the President or any Vice
President, and by the Chief Financial Officer, the Secretary or an Assistant
Secretary of the general partner of the Issuer, and delivered to the Trustee.
LEGAL HOLIDAY: The term "Legal Holiday" has the meaning specified in
Section 11.09.
LIEN: The term "Lien" means any mortgage, pledge, security interest,
conditional sale or other title retention agreement, constructive trust or other
similar lien.
MAALP: The term "MAALP" means Mid-America Apartments, L.P., a
Tennessee limited partnership.
MAALP ENVIRONMENTAL INDEMNITY: The term "MAALP Environmental
Indemnity" means that certain environmental and hazardous substance
indemnification agreement, dated as of November 21, 1997, made by MAALP in favor
of the Trustee, as the same may be amended from time to time.
MAALP EXCHANGE ACT REPORTS: The term "MAALP Exchange Act Reports"
means, collectively, (i) MAALP's effective registration statement on Form 10 (or
any successor form) under the Exchange Act, (ii) MAALP's annual report on Form
10-K under the Exchange Act most recently filed prior to the Permitted Merger
Date (if any) and (iii) each of MAALP's quarterly reports on Form 10-Q under the
Exchange Act and MAALP's current reports on Form 8-K under the Exchange Act
filed prior to the Permitted Merger Date and after the later of (x) the filing
of such registration statement and (y) the filing of such annual report (if
any).
MANAGER'S CONSENT: The term "Manager's Consent" means that certain
manager's consent and subordination of management agreement, dated as of
November 21, 1997, of MAALP, as property manager, for the benefit of the
Trustee, as the same may be amended from time to time.
MATURITY DATE: The term "Maturity Date" means [January 31], 2003.
MATURITY INTEREST RATE: The term "Maturity Interest Rate" has the
meaning specified in the form of First Mortgage Bond included as Exhibit A
hereof.
MONTHLY PAYMENT: The term "Monthly Payment" means the monthly
payment of interest at the Interest Rate due and payable on each Payment Date on
the Securities in accordance with their terms.
MOODY'S: The term "Moody's" means Moody's Investors Service, Inc.
MORTGAGE: The term "Mortgage" means the deed of trust, security
agreement and assignment of rents and leases with respect to each Mortgaged
Property, from the Partnership, as grantor, to the trustee named therein,
substantially in the form attached hereto as Exhibit C, as amended or
supplemented from time to time as permitted hereby or thereby.
MORTGAGED PROPERTY: The term "Mortgaged Property" means all the
right, title and interest of the Partnership in and to the parcel of land
described in Schedule A to each Mortgage and in and to the buildings and
improvements now existing or hereafter constructed on such land and all
definitions of "Mortgaged Property" contained in such Mortgage, except as
released pursuant to the terms hereof and of such Mortgage. The Mortgaged
Properties are listed in Exhibit B hereto.
NET OPERATING INCOME: The term "Net Operating Income" means, with
respect to any period, the excess of Operating Income over Operating Expenses
for such period.
O&M AGREEMENT: The term "O&M Agreement" means that certain
operations and maintenance agreement, dated as of November 21, 1997, between the
Partnership and the Trustee, as the same may be amended from time to time.
OBLIGATIONS: The term "Obligations" means (a) the due and punctual
payment of principal of, premium, if any, and interest on the Securities
according to their tenor and effect, (b) the due and punctual payment by the
Issuer of all other sums due or to become due under the Securities, this
Indenture, the Security Documents and any other documents included in the Trust
Estate and (c) the due and punctual performance and observance of all covenants,
agreements, conditions, obligations and liabilities of the Issuer under or
pursuant to the Securities, this Indenture, the Security Documents and any other
documents included in the Trust Estate.
OFFICER: The term "Officer" means the Chief Executive Officer, the
President, any Vice President, the Chief Financial Officer or the Secretary of
the general partner of the Issuer.
OFFICERS' CERTIFICATE: The term "Officers' Certificate" means a
certificate signed by two Officers.
OPERATING ACCOUNT: The term "Operating Account" has the meaning
specified in Paragraph 3(a) of the Cash Collateral Agreement.
OPERATING EXPENSES: The term "Operating Expenses" means, with
respect to any period prior to the Permitted Merger Date, all expenses paid or
to be paid by the Partnership during such period in connection with the
operation, management, maintenance, repair and use of the Mortgaged Properties,
determined on an accrual basis and, except to the extent otherwise provided in
this definition, in accordance with GAAP. Operating Expenses specifically shall
(a) include management fees, whether or not actually paid, equal to 4% of the
sum of total annual revenue with respect to the Mortgaged Properties, (b)
include capital reserves equal to $200 per unit per annum and (c) be adjusted to
reflect sustainable expense.
OPERATING INCOME: The term "Operating Income" means, with respect to
any period prior to the Permitted Merger, all income of the Partnership during
such period from the operation of the Mortgaged Properties determined, except to
the extent otherwise provided in this definition, in accordance with GAAP.
Operating Income shall be adjusted to reflect sustainable revenues and shall be
calculated without straightlining of rents.
OPINION OF COUNSEL: The term "Opinion of Counsel" means a written
opinion from legal counsel who is acceptable to the Rating Agencies. The counsel
may be an employee of or counsel to the Issuer or the Trustee.
ORIGINAL INDENTURE: The term "ORIGINAL INDENTURE" has the meaning
set forth in the first recital hereof.
OUTSTANDING: The term "Outstanding," when used with reference to
Securities or principal amount thereof means, subject to the provisions of
Section 11.07, as of any particular time, all Securities authenticated by the
Trustee and delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(b) Securities for the payment in whole of which Cash in the
necessary amount (including premium and interest, if any) shall have been
deposited in trust with the Trustee or any paying agent; and
(c) Securities in lieu of or in substitution or exchange for which
other Securities shall have been authenticated and delivered pursuant to
the terms of Section 2.07, or which have been paid, unless proof
satisfactory to the Issuer and the Trustee is presented that any such
Securities are held by Persons in whose hands any of such Securities is a
valid, binding and legal obligation of the Issuer.
PARTNERSHIP: The term "Partnership" means Mid-America Capital
Partners, L.P., a Delaware limited partnership.
PARTNERSHIP ENVIRONMENTAL INDEMNITY: The term "Partnership
Environmental Indemnity" means that certain environmental and hazardous
substance indemnification agreement, dated as of the date hereof, made by the
Partnership in favor of the Trustee, as the same may be amended from time to
time.
PAYMENT DATE: The term "Payment Date" has the meaning specified in
the form of First Mortgage Bond included as Exhibit A of this Indenture.
PERMITTED ENCUMBRANCES: The term "Permitted Encumbrances" has the
respective meanings specified in each Mortgage and shall include the pledges and
encumbrances pursuant to the Security Documents.
PERMITTED INVESTMENTS: The term "Permitted Investments" has the
meaning specified in Exhibit C to the Cash Collateral Agreement.
PERMITTED MERGER: The term "Permitted Merger" has the meaning
specified in Section 9.01.
PERMITTED MERGER DATE: The term "Permitted Merger Date" has the
meaning specified in Section 9.02(viii).
PERSON: The term "Person" means any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
PRINCIPAL: The term "principal" of a Security means the principal of
the Security plus the premium, if any, payable on the Security which is due or
overdue or is to become due at the relevant time.
PROPERTY ADVANCE: The term "Property Advance" means any advance made
by the Trustee in respect of any payment of taxes, insurance premiums or other
amounts required under any Mortgage to be paid in respect of any Mortgaged
Property prior to the Permitted Merger Date.
QUALIFIED SERVICER: The term "Qualified Servicer" means a Servicer
acceptable to each Rating Agency which is (a) appointed in good faith by the
Trustee pursuant to a servicing agreement prepared by the Issuer which shall be
by and among the Partnership, the Servicer and the Trustee and reasonably
acceptable to the Partnership and the Trustee and shall provide that the
Servicer shall act according to the Servicing Standard and (b) an established
mortgage finance institution, bank or mortgage servicing institution, organized
and doing business under the laws of any state of the United States or the
District of Columbia and authorized under such laws to perform the duties under
such servicing agreement.
RATING AGENCIES: The term "Rating Agencies" means Moody's and S&P.
RELEASE CERTIFICATE: The term "Release Certificate" has the meaning
specified in Section 9.02(iv).
REPAIRS AGREEMENT: The term "Repairs Agreement" means that certain
required repairs agreement, dated as of November 21, 1997, between the
Partnership and the Trustee, as the same may be amended from time to time.
S&P: The term "S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc.
SEC: The term "SEC" means the Securities and Exchange Commission.
SECURED DEBT: The term "Secured Debt" means Debt secured by any
mortgage, lien, charge, pledge, encumbrance or security interest of any kind
upon any of the property of the Issuer or any Subsidiary.
SECURITIES ACT: The term "Securities Act" means the Securities Act
of 1933, as amended.
SECURITY: The term "Security" means any First Mortgage Bond
authenticated by the Trustee and delivered under this Indenture, and the plural
term "Securities" has a correlative meaning.
SECURITY DOCUMENTS: The term "Security Documents" means this
Indenture, the Partnership Environmental Indemnity, the MAALP Environmental
Indemnity, the Borrower's Certificate, the Manager's Consent, the Repairs
Agreement, the O&M Agreement, each Mortgage, the Assignment of Leases and Rents,
the Cash Collateral Agreement and any financing statement on Form UCC-1 and
continuation statement on Form UCC-3 filed with respect to any thereof.
SECURITY REGISTER: The term "Security Register" has the meaning
specified in Section 2.06.
SECURITY REGISTRAR; SECURITY CO-REGISTRAR: The terms "Security
Registrar" and "Security Co-Registrar" have the meanings specified in Section
2.06.
SERVICER: The term "Servicer" means any servicer appointed pursuant
to Section 7.13.
SERVICING STANDARD: The term "Servicing Standard" means, with
respect to the Servicer, servicing of the Mortgaged Properties by the Servicer
in the best interests of and for the benefit of all of the Securityholders (as
determined by the Servicer in the exercise of its good faith and reasonable
judgment) and in accordance with applicable law, the specific terms of the
respective Mortgages, the other Security Documents and this Indenture and, to
the extent not inconsistent with the foregoing, in the same manner in which, and
with the same care, skill and diligence as is normal and usual in the Servicer's
general mortgage servicing and property management activities on behalf of third
parties or on behalf of itself, whichever is higher, with respect to mortgage
loans and properties that are comparable to the Mortgaged Properties, and in
each event with a view to the timely payment of all scheduled payments of
principal and interest or, if the Securities come into and continue in default
and if, in the good faith and reasonable judgment of the Servicer, no
satisfactory arrangements can be made for the collection of the delinquent
payments, the maximization of the recovery to the Securityholders (as a
collective whole) on a present value basis, but in any case without regard to:
(i) any known relationship that the Servicer or any Affiliate
thereof may have with the Issuer or any other parties to the
Security Documents;
(ii) the ownership of any Security by the Servicer or any Affiliate
thereof;
(iii) the Servicer's obligation, if any, to make Advances;
(iv) the right of the Servicer (or any Affiliate thereof) to
receive reimbursement of costs, or the sufficiency of any
compensation for its services hereunder or with respect to any
particular transaction; or
(v) the ownership, servicing or management, for others or itself,
by the Servicer of any other mortgage loans or properties.
STATED MATURITY: The term "Stated Maturity" means, with respect to
any Security, the date specified in such Security as the Maturity Date.
SUBSIDIARY: The term "Subsidiary" means any corporation, limited
liability company, association, partnership or other business entity of which
more than 50% of the total voting power of shares of Capital Stock or other
interests (including limited liability company or partnership interests)
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by (i) the Issuer, (ii) the Issuer and one
or more Subsidiaries or one or more Subsidiaries.
TERMINATION NOTICE: The term "Termination Notice" has the meaning
specified in Paragraph 3(h) of the Cash Collateral Agreement.
TOTAL ASSETS: The term "Total Assets" as of any date means the sum
of (i) Undepreciated Real Estate Assets and (ii) all other assets of the Issuer
and its Subsidiaries on a consolidated basis determined in accordance with GAAP
(but excluding intangibles and accounts receivable).
TOTAL UNENCUMBERED ASSETS: The term "Total Unencumbered Assets"
means the sum of (i) those Undepreciated Real Estate Assets which have not been
pledged, mortgaged or otherwise encumbered by the owner thereof to secure Debt
and (ii) all other assets of the Issuer and its Subsidiaries determined in
accordance with GAAP (but excluding intangibles and accounts receivable) which
have not been pledged, mortgaged or otherwise encumbered by the owner thereof to
secure Debt.
TIA: The term "TIA" means the Trust Indenture Act of 1939 (15
U.S.C. ss.ss. 77aaa--77bbb) as in effect on the date of this Indenture.
TRIGGER NOTICE: The term "Trigger Notice" has the meaning specified
in Paragraph 3(h) of the Cash Collateral Agreement.
TRUST AGREEMENT: The term "Trust Agreement" means that certain
Agreement of Trust of even date herewith by and between the Depositor and the
Certificate Trustee.
TRUSTEE: The term "Trustee" means the corporation or trust company
or national banking association named as Trustee in this Indenture until any
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean such successor Trustee.
TRUST ESTATE: The term "Trust Estate" means all property subject or
intended to be subject to the Lien of this Indenture or constituting a part of
the security for the Obligations or the performance by the Issuer of its
obligations hereunder as of any particular time, including, without limitation,
the Security Documents, all property, rights, interests and privileges of the
Partnership, all estate, right, title and interest of the Partnership in, to and
under any agreement, contract, document or instrument to which it is a party
(including, without limitation, the Contribution Agreement), all Accounts,
Permitted Investments, Cash and U.S. Government Obligations held by or pledged
to the Trustee pursuant hereto or to the Cash Collateral Agreement, all property
subject to the Mortgages and all security interests granted to the Trustee by
the Security Documents (including the after-acquired property clauses thereof)
or subsequently pledged thereunder to the Trustee (whether by the Issuer or any
other Person) and any other money, instruments or property that is held by the
Trustee as security for the Obligations, including, without limitation, all of
the estate, right, title, interest, claim and demand therein, thereto and
thereunder of the Issuer or of any Affiliate of the Issuer and of the Trustee.
TRUST OFFICER: The term "Trust Officer" means, with respect to the
initial Trustee, any officer of the Trustee's Asset Backed Securities Trust
Services Group directly responsible for the matters contemplated by this
Indenture and, with respect to any successor Trustee, any vice president, trust
officer or corporate trust officer of the Trustee, in each case employed by the
corporate trust administration department of the Trustee.
UNDEPRECIATED REAL ESTATE ASSETS: The term "Undepreciated Real
Estate Assets" means, as of any date, the cost (original cost plus capital
improvements) 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.
UNIFORM COMMERCIAL CODE: The term "Uniform Commercial Code" means
the Uniform Commercial Code as in effect in the State of New York from time to
time.
UNITED STATES: The term "United States" means the United States of
America, the Commonwealth of Puerto Rico and each territory and possession of
the United States of America and all areas subject to its jurisdiction.
UNITED STATES PERSON: The term "United States Person" means a Person
who is a citizen, resident or national of the United States (including the
estate of any such Person, any estate or trust the income of which is subject to
United States federal income taxation regardless of its source, or any
corporation, partnership or other entity created or organized in or under the
United States or any political subdivision thereof).
U.S. GOVERNMENT OBLIGATIONS: The term "U.S. Government Obligations"
means direct obligations (or certificates evidencing an ownership interest in
such obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable at the
issuer's option.
UNSECURED DEBT: The term "Unsecured Debt" means Debt which is not
secured by any mortgage, lien, charge, pledge, encumbrance or security interest
of any kind upon any of the properties of the Issuer or any Subsidiary.
VOTING STOCK: The term "Voting Stock" of a corporation means all
classes of Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
WHOLLY OWNED SUBSIDIARY: The term "Wholly Owned Subsidiary" means a
Subsidiary all the Capital Stock of which (other than directors' qualifying
shares) is owned by the Issuer or another Wholly Owned Subsidiary.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture; PROVIDED,
HOWEVER, that prior to the effective registration of the First Mortgage Bonds
under the Securities Act, the provisions of the TIA referred to herein shall be
inapplicable. The following TIA terms used in this Indenture have the following
meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Securityholder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by reference in the TIA to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(2) "or" is not exclusive;
(3) "including" means including, without limitation;
(4) words in the singular include the plural and words in the plural
include the singular; and
(5) the principal amount of any non-interest bearing or other
discount security at any time shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared
in accordance with GAAP and accretion of principal on such security shall
be deemed to be the issuance of Debt.
ARTICLE TWO
ISSUANCE, DESCRIPTION, EXECUTION AND EXCHANGE OF SECURITIES
SECTION 2.01. DESIGNATION, AMOUNT AND ISSUE OF SECURITIES. The First
Mortgage Bonds shall be designated as the Issuer's "[__]% First Mortgage Bonds,
Due 2003." The First Mortgage Bonds will be limited to $150,000,000 in aggregate
principal amount, except as provided in Section 2.07.
SECTION 2.02. AUTHENTICATION AND DELIVERY OF SECURITIES. Upon the
execution and delivery of this Indenture, and from time to time thereafter, the
First Mortgage Bonds shall be executed by the Issuer and such Securities shall
thereupon be delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Securities upon an Issuer Order.
SECTION 2.03. FORM OF SECURITIES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Securities and the Trustee's certificate of authentication
to be borne by the Securities shall be substantially of the tenor and purport as
in Exhibit A to this Indenture recited, in temporary or definitive form, and may
have such letters, numbers or other marks of identification or designation and
such legends or endorsements as the Issuer may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any securities exchange on which the Securities may be
listed, or to conform to usage.
SECTION 2.04. DENOMINATION AND DATE OF SECURITIES; PAYMENT OF
PRINCIPAL AND INTEREST; GLOBAL SECURITIES. (a) The Securities shall be issuable
in registered form without coupons.
(b) The Securities shall be issuable in denominations of $100,000
and such greater denominations as are whole multiples of $1,000. Each Security
shall be dated the Issue Date and shall bear interest on the unpaid principal
amount thereof from and after the most recent Payment Date to which interest has
been paid or, if no interest has been paid, from and after the Issue Date.
(c) The Person in whose name any Security is registered at 5:00 p.m.
New York City time on the fifth Business Day preceding any Payment Date for such
Security shall be entitled to receive the Monthly Payment payable on such
Payment Date, except that, if and to the extent the Issuer shall default in the
payment of the Monthly Payment due on such Payment Date or shall not have duly
provided for the payment thereof and no Advance has been made in respect
thereof, such defaulted payment shall be paid to the Persons in whose names
Outstanding Securities are registered on a subsequent date of record established
by notice given by mail by or on behalf of the Issuer to the Holders of
Securities not less than 10 days preceding such subsequent date of record and
payment of such defaulted Monthly Payment shall be made not less than five days
after such date of record.
(d) The principal of and premium, if any, on the Securities at
maturity or upon redemption in whole or in part shall be payable, together with
accrued interest, upon surrender of the Securities at the offices of the
co-paying agent of the Issuer designated for that purpose, as provided in
Section 4.10. Monthly Payments on Securities will be made in U.S. dollars, by
wire transfer to a bank in the United States in immediately available funds to
the account of each Holder that has furnished written wire transfer instructions
to the Trustee.
(e) The First Mortgage Bonds shall be issued as one or more Global
Certificates registered in the name of a nominee designated by the Depository,
and Beneficial Owners shall hold interests in the Global Certificates through
the book-entry facilities of the Depository in denominations of $100,000 and
such greater denominations as are whole multiples of $1,000. The Global
Certificates shall in all respects be entitled to the same benefits under this
Indenture as any Individual Certificates authenticated and delivered hereunder.
(f) The Issuer, the Trustee and any paying agent may for all
purposes (including the making of payments due on the Global Certificates and
the giving of notice to Holders thereof) deal with the Depository as the
authorized representative of the Beneficial Owners with respect to the Global
Certificates for the purposes of exercising the rights of Securityholders
hereunder. The rights of Beneficial Owners with respect to Global Certificates
shall be limited to those established by law and agreements among such
Beneficial Owners and the Depository and Depository Participants. Except in the
limited circumstances described below, Beneficial Owners of Global Certificates
shall not be entitled to physical certificates for the Global Certificates as to
which they are the Beneficial Owners. Requests and directions from, and votes
of, the Depository as Holder of the Global Certificates shall not be deemed
inconsistent if they are made with respect to different Beneficial Owners.
(g) The Security Registrar may establish a reasonable record date in
connection with solicitations of consents from or voting by Securityholders and
give notice to the Depository of such record date. Without the written consent
of the Issuer and the Security Registrar, no Global Certificate may be
transferred by the Depository except to a successor Depository that agrees to
hold the Global Certificates for the account of the Beneficial Owners.
(h) The Global Certificates (i) shall be delivered by the Trustee to
the Depository and shall be registered in the name of Cede & Co. and (ii) shall
bear legends substantially to the following effect:
"Unless this bond is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Certificate
Registrar for registration of transfer, exchange or payment, and any bond 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.
"EACH TRANSFEREE OF A BENEFICIAL INTEREST IN THIS BOND SHALL BE
DEEMED TO REPRESENT EITHER (A) THAT IT IS NOT, AND IS NOT USING THE ASSETS OF,
AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT PLAN OR ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (B) THAT IT HAS DETERMINED THAT, ASSUMING THIS BOND IS TREATED AS
INDEBTEDNESS WITH NO SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF 29 C.F.R. ss.
2510.3-101, THE PURCHASE AND HOLDING OF A BENEFICIAL INTEREST IN THIS BOND BY
THE TRANSFEREE WOULD NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED
TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE BECAUSE THE
RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER ONE OR MORE OF THE FOLLOWING
PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN SATISFIED: PROHIBITED
TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO TRANSACTIONS EFFECTED BY
IN-HOUSE ASSET MANAGERS); PTCE 95-60 (RELATING TO CERTAIN TRANSACTIONS INVOLVING
INSURANCE COMPANY GENERAL ACCOUNTS); PTCE 91-38 (RELATING TO INVESTMENTS BY BANK
COLLECTIVE INVESTMENT FUNDS); PTCE 90-1 (RELATING TO INVESTMENTS BY INSURANCE
COMPANY POOLED SEPARATE ACCOUNTS); OR PTCE 84-14 (RELATING TO TRANSACTIONS
EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET MANAGER")."
The Global Certificates may be deposited with such other Depository
as the Trustee may from time to time designate, and shall bear such legend as
may be appropriate.
If (i) the Depository advises the Issuer and the Trustee in writing
that the Depository is no longer willing, qualified or able properly to
discharge its responsibilities as Depository, and the Issuer is unable to locate
a qualified successor or (ii) after the occurrence of an Event of Default,
Beneficial Owners owning not less than a majority of the aggregate Outstanding
principal amount of the Global Certificates for the First Mortgage Bonds advise
the Depository through Depository Participants in writing that the continuation
of a book-entry system through the Depository is no longer in the best interest
of the Beneficial Owner or Owners of such Global Certificate, the Trustee shall
notify the affected Beneficial Owners through the Depository of the occurrence
of such event and the availability of Individual Certificates to such Beneficial
Owner or Owners requesting them. Upon surrender to the Trustee of Global
Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall issue the
Individual Certificates to, and the Security Registrar shall register such
Individual Certificates in the names of, the respective Holders thereof. Neither
the Trustee, the Security Registrar nor the Issuer shall be liable for any
actions taken by the Depository or its nominee, including, without limitation,
any delay in delivery of such instructions. Upon the issuance of Individual
Certificates, the Trustee, the Security Registrar and the Issuer shall recognize
the Holders of Individual Certificates as Securityholders hereunder.
If the Trustee or any of its agents has instituted or has been
directed to institute any judicial proceeding in a court to enforce the rights
of the Securityholders under the Securities, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of the Securities, the Trustee or any of
its agents may in its sole discretion determine that the Securities represented
by the Global Certificates shall no longer be represented by such Global
Certificates. In such event, the Issuer will execute and the Trustee will
authenticate and deliver, in exchange for such Global Certificates, Individual
Certificates in an aggregate denomination equal to the aggregate denomination of
such Global Certificates.
(i) Interest on the Securities will be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 2.05. EXECUTION OF SECURITIES. Each Security shall be signed
in the name and on behalf of the Issuer manually or by the President or any Vice
President of its general partner attested by the manual or facsimile signature
of the Secretary or an Assistant Secretary of its general partner, prior to the
authentication of the Security, and the delivery of such Security by the Trustee
upon an Issuer Order, after the authentication thereof hereunder, shall
constitute due delivery of such Security on behalf of the Issuer. In case any
officer of the general partner of the Issuer who shall have signed, or whose
facsimile signature appears on any of the Securities, shall cease to be such
officer before the Securities shall have been authenticated and delivered by the
Trustee or disposed of, such Security nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Security had not
ceased to be such officer. Any Security may be signed on behalf of the Issuer by
such officer as at the actual date of the execution of such Security shall be
the proper officer of the Issuer, although at the date of the execution of this
Indenture any such Person was not such an officer.
Only such Securities as shall bear thereon a certificate of
authentication substantially in the form herein recited, executed by the Trustee
by manual signature of one of its authorized officers, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Security executed by the Issuer shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF SECURITIES.
The Issuer shall keep, at the office or agency to be maintained by the Trustee
for such purpose (the "SECURITY REGISTRAR") at the Corporate Trust Office, a
register (the "SECURITY REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Issuer shall provide for the registration
of the Securities and the registration of transfers of such Securities as in
this Article Two provided; PROVIDED, HOWEVER, in no event shall the Security
Registrar be required to maintain in the Security Register the names of the
individual participants holding beneficial interests in the Securities through
the Depository. Upon written notice to the Trustee and any acting Security
Registrar, the Issuer may appoint a successor Security Registrar for such
purposes. The Issuer may appoint one or more co-registrars (each, a "SECURITY
CO-REGISTRAR") for such purposes. At all reasonable times, any Security Register
shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any Security at the office or agency of any Security
Registrar or any Security Co-Registrar, the Issuer shall execute, and the
Trustee shall authenticate and deliver, in the name of the transferee or
transferees, one or more new Securities of like tenor of any authorized
denominations for an aggregate principal amount equal to the then current
principal balance of the Security presented for registration of transfer.
All Securities presented for registration of transfer or for
exchange or payment, as the case may be, shall (if so required by the Issuer or
the Trustee or the Security Registrar or any Security Co-Registrar) be duly
endorsed by, or be accompanied by a written instrument or instruments of
assignment and transfer in form satisfactory to the Person imposing such
requirement duly executed by, the Holder or his or her attorney duly authorized
in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities (except the costs of mailing), but the Issuer may require
payment of a sum sufficient to cover any tax, assessment or other governmental
charge that may be imposed in connection therewith.
Upon delivery by any Security Registrar or Security Co-Registrar of
a Security in exchange for a Security surrendered to it in accordance with the
provisions of this Indenture, the Security so delivered shall, for all purposes
of this Indenture, be deemed to be fully registered in the Security Register;
PROVIDED, HOWEVER, that in making any determination as to the identity of
Persons who are Holders of Securities, the Trustee shall be fully protected in
relying on the Security Register.
All Securities issued pursuant to this Section 2.06 in exchange for
or upon registration of transfer of Securities shall be the valid obligations of
the Issuer, evidencing the same debt, and entitled to the same benefits and
subject to the same conditions under this Indenture, as the Securities
surrendered for such exchange or registration of transfer.
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN Securities. In
case any Security shall become mutilated, destroyed, lost or stolen, the Issuer
shall execute, and the Trustee shall authenticate and deliver, a new Security or
Securities of like series and tenor, bearing a number not contemporaneously
outstanding in an aggregate principal amount equal to the current principal
balance of, and in substitution for, the Security so mutilated, destroyed, lost
or stolen. In every such case, the applicant for a substitute Security shall, at
the expense of the applicant, furnish to the Issuer, the Trustee, the Security
Registrar and any Security Co-Registrar such security or indemnity as may be
required by them to save each of them harmless. Also, in every case of
destruction, loss or theft, the applicant shall furnish to the Issuer, the
Trustee, the Security Registrar and any Security Co-Registrar evidence to their
satisfaction of the destruction, loss or theft of such Security and of the
ownership thereof. In every case of mutilation, the applicant shall surrender to
the Trustee the Security so mutilated. The Trustee shall authenticate any such
substitute Security and deliver the same. Upon the issuance of any substitute
Security, 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 connected therewith. If required by the Trustee or the Issuer,
such applicant shall furnish an indemnity bond sufficient in the judgment of the
Issuer and the Trustee to protect the Issuer, the Trustee, any paying agent, the
Security Registrar and any Security Co-Registrar from any loss which any of them
may suffer if a Security is replaced. In case any Security shall have become
mutilated, destroyed, lost or stolen, at maturity thereof the Issuer may pay or
authorize the payment of the same instead of issuing a substitute Security as
permitted by this Section 2.07.
Every substitute Security issued pursuant to the provisions of this
Section 2.07 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security shall at any time be found
by anyone, and shall be entitled to all the benefits and is subject to all the
terms and conditions of this Indenture equally and proportionately, with any and
all other Securities duly issued and outstanding hereunder. All Securities shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing provisions are exclusive with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies, notwithstanding any law or statute now
existing or hereafter enacted to the contrary with respect to the replacement or
payment of negotiable instruments or other securities without their surrender.
SECTION 2.08. CANCELLATION OF SURRENDERED SECURITIES. All Securities
surrendered for payment or for substitution or exchange or registration of
transfer hereunder shall be delivered to the Trustee for cancellation and shall
be canceled by the Trustee, and no Securities shall be issued in lieu thereof,
except as otherwise provided in this Indenture. The Trustee shall destroy all
canceled Securities held by it and shall deliver to the Issuer a certificate in
respect of such destruction. If the Issuer shall acquire any of the Securities,
however, such acquisition shall not operate as a satisfaction of the
indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation. Any Securities acquired by the Issuer
and delivered to the Trustee shall be canceled by the Trustee upon receipt of
written instructions from the Issuer.
SECTION 2.09. TEMPORARY SECURITIES. Until definitive securities are
ready for delivery, the Issuer may prepare and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form of
definitive Securities, but may have variations that the Issuer considers
appropriate for temporary Securities. Without unreasonable delay, the Issuer
shall prepare and the Trustee shall authenticate definitive Securities and
deliver them in exchange for temporary Securities.
ARTICLE THREE
NO PREPAYMENT OF SECURITIES
SECTION 3.01. NO PREPAYMENT. The First Mortgage Bonds may not be
prepaid or redeemed prior to maturity.
ARTICLE FOUR
PARTICULAR COVENANTS, REPRESENTATIONS AND WARRANTIES OF ISSUER
The Issuer represents, warrants, covenants and agrees, as of the
date hereof, as of the Issue Date of the First Mortgage Bonds and (except as
specified below) as of the Permitted Merger Date, as follows:
SECTION 4.01. VALIDITY OF SECURITIES; TITLE TO TRUST ESTATE; LIEN.
(a) The Issuer is duly authorized under applicable law and its organizational
documents to create and issue the Securities, to execute and deliver this
Indenture and all instruments included in the Trust Estate which are executed or
delivered by the Issuer and to mortgage and pledge the property included in the
Trust Estate; all corporate and partnership action and governmental consents,
authorizations and approvals necessary or required therefor have been duly and
effectively taken or obtained. The Securities are legal, valid and binding
obligations of the Issuer.
(b) This Indenture, the other Security Documents and any other
instrument included in the Trust Estate are valid and enforceable in accordance
with their terms, and all property included in the Trust Estate is free of all
Liens except for the Mortgages and except as permitted hereby or thereby. The
Issuer has full power and lawful authority to mortgage and pledge the property
included in the Trust Estate, and the Trustee has a valid and enforceable
mortgage and security interest therein, subject only to exceptions permitted
hereby or thereby. Subject to the Permitted Encumbrances, the Issuer shall at
all times preserve, warrant and defend the Trustee's title and right in and to
the property included in the Trust Estate against the claims of all Persons.
Without limiting the generality of the foregoing, in no event shall the Issuer
transfer to any Subsidiary any of its assets subject to the Lien of any of the
Security Documents or this Indenture.
SECTION 4.02. MAINTENANCE OF LIENS AND RECORDING. (a) The Issuer
will maintain and preserve the first priority mortgage Liens and security
interest of the Security Documents and of any other instrument included in the
Trust Estate prior to the Permitted Merger Date for so long as any Security is
Outstanding.
(b) The Issuer will, forthwith after the execution and delivery of
this Indenture and thereafter from time to time prior to the Permitted Merger
Date, cause the Security Documents, any other instrument included in the Trust
Estate and any mortgage, financing statement, continuation statement or similar
instrument relating to any Lien thereof or to any property intended to be
subject to any Lien thereof or subject to the Lien of the Security Documents or
any other instrument included in the Trust Estate to be filed, registered and
recorded in such manner and in such places as may be required by law in order to
publish notice of and fully to protect the validity thereof or the Liens thereof
purported to be created upon the properties subject thereto and the interest and
rights of the Trustee in the Trust Estate. As among the Issuer, the Holders and
the Trustee, the Issuer will pay or cause to be paid all taxes and fees incident
to such filing, registration and recording, and all expenses incident to the
preparation, execution and acknowledgment of the Security Documents, or any
amendments thereto or modifications thereof, of any other instrument included in
the Trust Estate and of any instrument of further assurance, and all Federal or
State stamp taxes or other taxes (except income taxes or franchise taxes of
parties other than the Issuer), duties and charges arising out of or in
connection with the execution and delivery of such instruments.
(c) The Issuer will furnish, in connection with the execution and
delivery of this Indenture and of each supplemental indenture dated prior to the
Permitted Merger Date and each Mortgage referred to herein, an Opinion of
Counsel either stating that in the opinion of such counsel this Indenture or
such supplemental indenture or Mortgage has been properly recorded and filed so
as to make effective the Lien intended to be created thereby, and reciting the
details of such action, or stating that in the opinion of such counsel no such
action is necessary to make such Lien effective.
(d) The Issuer will furnish, by October 1 of each year prior to the
Permitted Merger Date, an Opinion of Counsel addressed to the Trustee either
stating that in the opinion of such counsel such action has been taken with
respect to the recording, filing, rerecording and refiling of this Indenture,
each supplemental indenture, each Mortgage and any other Security Document
referred to herein, as is necessary to maintain the Lien thereof, and reciting
the details of such action, or stating that in the opinion of such counsel no
such action is necessary to maintain such Lien.
SECTION 4.03. PERFORMANCE AND ENFORCEMENT. (a) The Issuer will
faithfully observe and perform, or cause to be observed and performed, all its
covenants, agreements, conditions and requirements contained herein and, subject
to any notice and/or cure periods provided therein, in the other Security
Documents or in any other instrument included in the Trust Estate strictly in
accordance with the terms thereof and will maintain the validity and
effectiveness of such instruments and the pledge thereof to the Trustee. The
Issuer will take no action, nor will it permit any action to be taken, which
will release any party to such instruments from any of its obligations or
liabilities thereunder, or will result in the termination, modification or
amendment, or will impair the validity, of any such instruments except, in each
case, as expressly provided for herein and therein. The Issuer will give the
Trustee written notice of any default by any party to any of such instruments
promptly after it becomes known to the Issuer.
(b) At the request of the Trustee, the Issuer will, at its expense
but subject to the direction and control of the Trustee, take such action, or at
the Trustee's request furnish funds sufficient to enable the Trustee to take
such action under or pursuant to this Indenture, as the Trustee may deem
necessary for enforcing this Indenture, the Security Documents or any other
instrument included in the Trust Estate.
SECTION 4.04. PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST
ON SECURITIES. The Issuer will duly and punctually pay or cause to be paid the
principal of, premium, if any, and interest (without deduction or withholding
for or on account of any taxes except as required by law) on each of the
Securities at the places, at the respective times and in the manner provided in
the Securities and this Indenture. The Issuer shall cause the aggregate Monthly
Payment due on the Securities to be deposited with the Trustee (or, if a paying
agent has been appointed pursuant to Section 4.11, with such paying agent, and
shall simultaneously give notice of such deposit to the Trustee) no later than
11:00 a.m. Chicago time on each Payment Date for disbursement to the
Securityholders. Applicable United States taxes will be withheld from payments
on any Security for any year in which the Trustee has not received from the
Holder thereof, if such Holder is not a United States Person, a properly
executed Form 4224 or Form 1001 (or successor thereto) in accordance with
appropriate U.S. Treasury regulations.
SECTION 4.05. SEC REPORTS. From and after the Permitted Merger Date,
the Issuer shall file with the Trustee and the SEC and provide Securityholders,
within 15 days after filing them with the SEC, copies of its annual report and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe) which
the Issuer is required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act. Notwithstanding that the Issuer may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Issuer shall continue to file with the SEC so long as any Securities
remain Outstanding and provide the Trustee and Securityholders with such annual
reports and such information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which are specified in Sections 13 and 15(d) of the Exchange Act. The
Issuer also shall comply with the other provisions of Section 314(a) of the TIA.
SECTION 4.06. LIMITATION ON DEBT. The Partnership shall not incur or
suffer or permit to exist any Debt except pursuant to this Indenture, the other
Security Documents and the First Mortgage Bonds. From and after the Permitted
Merger Date, MAALP shall not, and shall not permit any Subsidiary to, incur any
Debt, other than inter-company debt representing Debt to which the only parties
are MAALP, its general partner and any of their Subsidiaries that is subordinate
in right of payment to the Securities (but only so long as such Debt is held
solely by any of MAALP, its general partner and any of their Subsidiaries), if,
immediately after giving effect to the incurrence of such additional Debt, the
aggregate principal amount of all outstanding Debt of MAALP and its Subsidiaries
on a consolidated basis is greater than 60% of the sum of Total Assets.
SECTION 4.07. LIMITATION ON SECURED DEBT. From and after the
Permitted Merger Date, in addition to the limitation set forth in Section 4.06,
MAALP 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 is greater
than 40% of Total Assets.
SECTION 4.08. UNENCUMBERED ASSETS. From and after the Permitted
Merger Date, MAALP shall maintain Total Unencumbered Assets of not less than
150% of the aggregate outstanding principal amount of all outstanding Unsecured
Debt.
SECTION 4.09. LIMITATION ON TRANSACTIONS WITH AFFILIATES. The
Partnership shall conduct its activities in accordance with and subject to
limitations set forth in the organizational documents of the Partnership. The
Issuer shall not, and shall not permit any Subsidiary to, conduct any business
or enter into any transaction or series of related transactions (including the
purchase, sale, lease or exchange of any property or the rendering of any
service) with any Affiliate of the Issuer or any legal or beneficial owner of
five percent or more of any class of equity interest of the Issuer or with any
Affiliate of such owner (other than a Wholly Owned Subsidiary of the Issuer)
unless (i) the terms of such business, transaction or series of transactions are
(a) set forth in writing and (b) as favorable to the Issuer or such Subsidiary
as terms that would be obtainable at the time for a comparable transaction or
series of related transactions in arm's-length dealings with an unrelated third
Person and (ii) the Board of Directors has, by resolution, determined in good
faith that such business or transaction or series of related transactions meets
the criteria set forth in clause (i) above.
SECTION 4.10. APPOINTMENT OF AGENTS. As long as any of the
Securities remain Outstanding, the Issuer will maintain one or more agencies
where notices and demands (other than in respect of payment on the Securities)
by Holders of Securities to or upon the Issuer in respect of the Securities or
this Indenture may be served and where the Securities may be presented for
payment by the Issuer and for registration of transfer and for exchange as in
this Indenture provided. In addition, the Issuer hereby appoints the Trustee at
its Corporate Trust Office as the paying agent of the Issuer, but the Issuer
shall have the right at any time and from time to time to vary or terminate any
such appointment as paying agent and to appoint additional and other such
agents. The Issuer will give to the Trustee notice of the location of such
additional and other offices or agencies of the Issuer and of any change in the
location of any of such offices or agencies. No agent appointed by the Issuer
pursuant to this Section 4.10 shall be liable to the Issuer or to the Holder of
any Security except in the case of its own negligent action, its own negligent
failure to act or its own willful misconduct.
The Issuer hereby appoints the Trustee at its Corporate Trust Office
in Chicago, Illinois as Security Registrar and paying agent for the Securities.
SECTION 4.11. PAYING AGENTS TO HOLD FUNDS IN TRUST. Whenever the
Issuer shall appoint a paying agent other than the Trustee, it will cause such
paying agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
4.11,
(a) that it will hold all sums held by it as such agent for the
payment of the principal of, premium, if any, and interest on the
Securities in trust for the benefit of the Holders of the Securities or
the Trustee and will notify the Trustee of the receipt of sums to be so
held, and
(b) that it will give the Trustee notice of any failure by the
Issuer to make any payment of the principal of, premium, if any, or
interest on the Securities when the same shall be due and payable.
SECTION 4.12. APPOINTMENT OF TRUSTEE BY ISSUER. Whenever necessary
to avoid or fill a vacancy in the office of the Trustee, the Issuer will appoint
a successor Trustee in the manner provided in Section 7.08, so that there shall
at all times be a Trustee hereunder.
SECTION 4.13. AVAILABILITY OF INFORMATION. The Issuer shall cause
the Trustee to preserve, in as current a form as is reasonably practicable, the
most recent list available to it of the names and addresses of the Holders of
Securities. From time to time, whenever reasonably requested by the Trustee, but
in any event at intervals of not more than six months, the Issuer will furnish
or make available to the Trustee such information as may be necessary to permit
the Trustee to carry out its duties under this Section 4.13. If at any time the
Trustee shall not be the Security Registrar, the Issuer will furnish or cause to
be furnished to the Trustee monthly not later than five Business Days before
each Payment Date and at such other times as the Trustee may reasonably request
a list in such form as the Trustee may reasonably require of the names and
addresses of Holders of Securities as of such Payment Date.
SECTION 4.14. BOOKS OF ACCOUNT; INSPECTION BY TRUSTEE; NOTICES;
STATEMENTS AS TO COMPLIANCE. (a) The Issuer will keep or cause to be kept proper
books of record and account, in which full, true and correct entries shall be
made of all dealings or transactions of or in relation to the Securities and the
Mortgaged Properties and the business and affairs of the Partnership relating to
the Mortgaged Properties.
(b) The Issuer shall deliver to the Trustee and the Rating Agencies
within one hundred twenty (120) days after the end of each fiscal year of the
Issuer an Officers' Certificate stating whether or not any Default or Event of
Default occurred during such period, describing such Default or Event of
Default, if any, and its status.
(c) The Issuer shall deliver to the Trustee and to the Rating
Agencies within twenty (20) Business Days after the end of each calendar quarter
an Officer's Certificate (i) setting forth the Debt Service Coverage Ratio
calculated as of the last day of such calendar quarter with respect to the
preceding twelve (12) calendar months, (ii) setting forth the calculations used
to determine such Debt Service Coverage Ratio and (iii) stating that the Issuer
thereby confirms compliance with the provisions of this Indenture for
determining such Debt Service Coverage Ratio.
(d) The Issuer agrees promptly to give notice to the Trustee and the
Rating Agencies of:
(i) the occurrence of any Default or Event of Default;
(ii) any (A) default (after any applicable grace or cure period has
expired) under any material provision of any agreement, instrument or
undertaking to which the Issuer or a Subsidiary is a party or by which any
of them or any of their respective properties is bound or (B) litigation,
investigation or proceeding which may exist at any time between the Issuer
or a Subsidiary and any Person, which default or litigation, if adversely
determined, could have a material adverse effect on the business,
operations or condition, financial or otherwise, of the Issuer and its
Subsidiaries, taken as a whole, or any of their properties;
(iii) any litigation or proceeding affecting the Issuer or a
Subsidiary in which the amount involved is $100,000 or more and is either
not covered by insurance or is covered by insurance as to which the
insurer has disclaimed liability or in which injunctive or similar relief
is sought; or
(iv) a material adverse change in the business, operations or
condition, financial or otherwise of the Issuer and its Subsidiaries,
taken as a whole.
Each notice given pursuant to this Section 4.14(d) shall be accompanied by an
Officers' Certificate setting forth details of the occurrence referred to
therein and stating what action, if any, the Issuer proposes to take with
respect thereto.
(e) Not later than forty-five (45) days following the end of each
fiscal quarter of the Issuer's operations commencing with the quarter ending
December 31, 1997, the Issuer will deliver to the Trustee and the Rating
Agencies (a) unaudited financial statements, internally prepared on an accrual
basis in accordance with GAAP, including a balance sheet as of the end of such
quarter and a statement of revenues and expenses through the end of such
quarter. Such statements for each quarter shall be accompanied by an Officers'
Certificate certifying that (A) such financial statements fairly represent the
financial condition and results of operations of the Issuer in accordance with
GAAP and (B) as of the date of such Officers' Certificate, no Default exists
under this Indenture, the Securities, the Mortgage or any other Security
Document or, if so, specifying the nature and status of each such Default and
the action then being taken by the Issuer or proposed to be taken to remedy such
Default.
(f) Not later than ninety (90) days after the end of each fiscal
year of Issuer's operations, the Issuer will deliver to the Trustee and the
Rating Agencies audited financial statements prepared on an accrual basis and
certified by an Independent Accountant in accordance with GAAP including a
balance sheet as of the end of such year and a statement of revenues and
expenses for such year, and stating in comparative form beginning with the 1998
calendar year the figures for the previous fiscal year as well as, prior to the
Permitted Merger Date, the supplemental schedule of net income or loss
presenting the net income or loss for the Mortgaged Properties. Such annual
financial statements shall also be accompanied by an Officer's Certificate in
the form required pursuant to Section 4.14(e).
(g) Not later than forty-five (45) days following the end of each
fiscal quarter of the Issuer's operations prior to the Permitted Merger,
commencing with the quarter ending December 31, 1997, if requested by the
Trustee or the Rating Agencies, the Issuer will deliver to the Trustee and the
Rating Agencies (i) a rent roll, true and complete in all material respects, for
each Mortgaged Property, (ii) a leasing report for each Mortgaged Property and
(iii) a capital expenditure report, in each case in such form as the Trustee or
the Rating Agencies (as the case may be) may reasonably request.
(h) The Issuer will, at any and all times prior to the Permitted
Merger Date, within a reasonable time after written request by the Trustee,
furnish or cause to be furnished to the Trustee and the Rating Agencies, in such
manner and in such detail as may be reasonably requested by the requesting
party, additional information with respect to the Mortgaged Properties.
The statements and other information furnished to the Trustee under
this Section 4.14 are to be retained by the Trustee in its files. Copies of such
information pursuant to this Section shall be provided by the Trustee upon
request to the Holders of Securities, or their duly designated representatives
or agents, at the Issuer's sole expense, and the Trustee shall be under no other
duty with respect to the same.
SECTION 4.15. PAYMENT OF TAXES AND OTHER CLAIMS. Prior to the
Permitted Merger, the Partnership will comply with the provisions regarding
payment of taxes contained in each Mortgage, and after the Permitted Merger, the
Issuer will, and will cause each of its Subsidiaries to, pay or discharge or
cause to be paid or discharged, before any fines or penalties are imposed, (a)
all taxes, assessments and governmental charges levied or imposed upon it or
upon its income, profits or property and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon its
property; PROVIDED, HOWEVER, that the Issuer shall have the right, at its sole
cost and expense, to contest or object to the amount or validity of any tax,
assessment, charge or claim by appropriate legal proceedings, but such right
shall not be deemed or construed in any way as relieving, modifying or extending
the Issuer's covenant to pay such tax, assessment, charge or claim at the time
and in the manner provided in this Section, unless the Issuer has given prior
written notice to the Trustee of its intent so to contest or object and unless
(i) prior to the Permitted Merger Date, such legal proceedings shall operate
conclusively to prevent the sale or forfeiture of the Mortgaged Properties, or
any part thereof, to satisfy such tax, assessment, charge or claim prior to
final determination of such proceedings and (ii) the Issuer shall furnish a good
and sufficient bond from a surety company with a rating from S&P and Moody's no
lower than "BBB" and "Baa2", respectively, or other security reasonably
satisfactory to the Rating Agencies in the amount of the tax, assessment, charge
or claim which is being contested plus any interest and penalty which may be
imposed thereon and which, prior to the Permitted Merger Date, could become a
Lien against the Mortgaged Properties.
SECTION 4.16. CORPORATE EXISTENCE AND RIGHTS. The Issuer will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and
franchises; PROVIDED, HOWEVER, that this Section 4.16 shall not prohibit the
Permitted Merger or any other merger permitted by Article Nine.
SECTION 4.17. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Issuer to the Trustee to take any action
under this Indenture, the Issuer shall furnish to the Trustee:
(1) an Officers' Certificate, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with;
(2) upon the reasonable request of the Trustee or the Rating
Agencies, an Opinion of Counsel, in form and substance reasonably
satisfactory to the Trustee, stating that, in the opinion of such counsel,
all such conditions precedent have been complied with; and
(3) a certificate from Independent Accountants if reasonably
requested by the Trustee or the Rating Agencies, in form and substance
acceptable to each requesting party.
SECTION 4.18. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with regard to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 4.19. DEBT SERVICE COVERAGE. (a) From and after the
Permitted Merger, MAALP shall not, and shall not permit any Subsidiary to, incur
any Debt if the Debt Service Coverage Ratio for the four consecutive fiscal
quarters most recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.50 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 by MAALP or its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds therefrom, including to
refinance other Debt, had occurred at the beginning of such period, (ii) the
repayment or retirement of any other Debt by MAALP or its Subsidiaries since the
first day of such four-quarter period had been incurred, repaid or retired at
the beginning of such period (except that, in making such computation, the
amount of Debt under any revolving credit facility shall be computed based upon
the average daily balance of such Debt during such period), (iii) the income
earned on any increase in Total Assets since the end of such four-quarter
period, including, without limitation, by merger, stock purchase or sale, or
asset purchase or sale, such acquisition or disposition or any related repayment
of Debt, had occurred as of the first day of such period with the appropriate
adjustment with respect to such acquisition or disposition being included in
such pro forma calculation.
(b) If at any time prior to the Permitted Merger Date the Debt
Service Coverage Ratio of the Partnership, as set forth on the Officers'
Certificate delivered pursuant to Section 4.14(c) or otherwise in a notice from
the Issuer to the Trustee, shall be less than 1.30 to 1, the Trustee shall
promptly deliver a Trigger Notice to the agent under the Cash Collateral
Agreement, as provided therein. If at any time after such delivery of a Trigger
Notice the Debt Service Coverage Ratio, as set forth on the Officers'
Certificate delivered pursuant to Section 4.14(c) or otherwise in a notice from
the Issuer to the Trustee, shall be equal to or greater than 1.30 to 1, the
Trustee shall promptly deliver a Termination Notice to the agent under the Cash
Collateral Agreement, as provided therein.
(c) If at any time prior to the Permitted Merger Date the Debt
Service Coverage Ratio of the Partnership shall be less than 1.15 to 1, the
Trustee may, and upon direction from Holders of 25% in principal amount of the
Securities then Outstanding shall, upon ten (10) days' prior written notice to
the Issuer and each property manager of the Mortgaged Properties, terminate or
cause the termination of any or all such property managers and require the
Partnership to retain a different manager or managers satisfactory to the
Trustee or such Holders; PROVIDED, HOWEVER, that before retaining any such
substitute property manager the Trustee shall have received written confirmation
from each Rating Agency that such substitute manager and any related management
agreement will not, in and of themselves, cause a withdrawal, downgrade or
qualification of the then current rating of the Certificates.
SECTION 4.20. RESTRICTIONS ON PARTNERSHIP. The Partnership shall not
have any Subsidiaries, shall not incur any Debt other than the Securities and
Permitted Encumbrances and shall comply with and shall not amend Article I or II
of its limited partnership agreement.
SECTION 4.21. MAINTENANCE OF PROPERTIES. The Issuer will cause all
of its properties used or useful in the conduct of its business or the business
of any Subsidiary to be maintained and kept in good condition, repair and
working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements 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 nothing in this Section shall prevent MAALP or
any Subsidiary except the Partnership from selling or otherwise disposing for
value of its properties in the ordinary course of its business.
SECTION 4.22. INSURANCE. Prior to the Permitted Merger, the
Partnership shall comply with the insurance provisions of each Mortgage, and
after the Permitted Merger, the Issuer will, and will cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with insurers of
recognized responsibility.
SECTION 4.23. PERMITTED MERGER. Prior to the Permitted Merger Date,
MAALP shall diligently use its best efforts to obtain the ratings specified in
Section 9.02(ii) and to become a reporting company under the Exchange Act. If
such ratings are obtained, MAALP and the Partnership, as the case may be, shall
comply with Sections 9.02(i) and (iii) through (xi) and shall effect the
Permitted Merger.
SECTION 4.24. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE FIVE
EVENTS OF DEFAULT AND REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. An "Event of Default" occurs if:
(1) the Issuer defaults in the payment of interest on any Security
when the same becomes due and payable;
(2) the Issuer defaults in the payment of the principal of or
premium, if any, on any Security when the same becomes due and payable at
its Stated Maturity, upon acceleration or otherwise;
(3) the Partnership consolidates with or merges with or into, or
conveys, transfers or leases all or substantially all its assets to, any
Person in any transaction which is not a Permitted Merger;
(4) the Issuer fails to observe or perform any of its covenants or
agreements contained in Sections 4.02, 4.06, 4.07, 4.08, 4.19(a) or 4.20;
(5) the Issuer fails to observe or perform any of its covenants or
agreements set forth in the Securities or this Indenture (other than those
referred to in clauses (1), (2), (3) or (4) above) and the Default, if
subject to being cured, continues for a period of 30 days after the
earlier of knowledge by the Issuer thereof or notice thereof from the
Trustee to the Issuer; PROVIDED that if such Default is not subject to
being cured within such 30-day period and the Issuer (i) has delivered an
Officers' Certificate to the Trustee (a) certifying that such Default is
reasonably subject to cure and that the Issuer has commenced such cure and
(b) setting forth those actions the Issuer has taken and will take to
pursue such cure and (ii) pursues such cure diligently to completion, then
such 30-day period shall be extended for an additional period of 60 days;
(6) following the Permitted Merger Date, MAALP defaults under any
indebtedness for money borrowed by MAALP if (A) such default either (i)
results from the failure to pay the principal of any such indebtedness at
its stated maturity or (ii) relates to an obligation other than the
obligation to pay the principal of such indebtedness at its stated
maturity and results in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due
and payable, (B) the principal amount of such indebtedness, together with
the principal amount of any other such indebtedness in default for failure
to pay principal at stated maturity or the maturity of which has been so
accelerated, aggregates $1,000,000 or more at any one time outstanding and
(C) such indebtedness is not discharged, or such acceleration is not
rescinded or annulled, within ten (10) Business Days after written notice
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 Securities then
Outstanding;
(7) the Issuer or any of its Subsidiaries 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
any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors; or takes any comparable action under any foreign laws
relating to insolvency;
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Issuer or any of its
Subsidiaries in an involuntary case;
(B) appoints a Custodian of the Issuer or any of its
Subsidiaries or for any substantial part of their respective
property; or
(C) orders the winding up or liquidation of the Issuer or any
of its Subsidiaries;
or any similar relief is granted under any foreign laws and the order
or decree remains unstayed and in effect for 60 days;
(9) an "Event of Default" as defined in any Security Document shall
have occurred and be continuing;
(10) any representation, warranty or other statement made by or on
behalf of the Issuer set forth in this Indenture, any other Security
Document or any other instrument included in the Trust Estate or in any
certificate, demand or request delivered to the Trustee or any Holder of
Securities pursuant to this Indenture, any Security Document or any other
instrument included in the Trust Estate, or by or on behalf of MAALP set
forth in the Contribution Agreement, shall prove to have been false or
misleading in any material respect as of the date when made;
(11) any judgment or decree for the payment of money in excess of
$100,000 not covered by insurance is rendered against the Issuer or any of
its Subsidiaries and is not discharged and either (A) an enforcement
proceeding has been commenced by any creditor upon such judgment or decree
or (B) there is a period of 60 days following such judgment or decree
during which such judgment or decree is not discharged, waived or the
execution thereof stayed; or
(12) the general partner of the Partnership fails to comply with
Article 3 or 9 of its charter.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
court or other order, rule or regulation of any administrative or governmental
body.
It is understood and agreed that no failure of the Issuer to
maintain the Debt Service Coverage Ratio specified in Section 4.19(b) or (c)
shall constitute a Default or Event of Default hereunder.
The Issuer shall deliver to the Trustee, within thirty (30) days
after the occurrence thereof, written notice in the form of an Officers'
Certificate of any Default hereunder, its status and what action the Issuer is
taking or proposes to take with respect thereto.
SECTION 5.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 5.01(7) or (8) with respect to the Issuer)
occurs and is continuing, the Trustee by notice to the Issuer, or the Holders of
at least 25% in principal amount of the Securities by notice to the Issuer and
the Trustee, may declare the principal of and accrued interest on all the
Securities and all other amounts due hereunder or thereunder to be due and
payable; PROVIDED that upon the occurrence of an Event of Default described in
clause (7) or (8) of Section 5.01, the principal of and accrued interest on all
of the Securities shall automatically become due and payable, without
presentment, demand or other requirements of any kind, all of which are hereby
expressly waived by the Issuer. Upon such a declaration, such principal,
interest and all other amounts due under the Securities in this Indenture shall
be due and payable immediately.
The Holders of a majority in principal amount of the Securities by
notice to the Trustee may rescind an acceleration and its consequences if (i)
the rescission would not conflict with any judgment or decree, (ii) no amounts
have been paid to the Holders as principal, interest, or premium, if any, on the
Securities as a result of such acceleration, (iii) all existing Events of
Default have been cured or waived except nonpayment of principal or interest
that has become due solely because of acceleration and (iv) all costs and
expenses incurred by the Trustee prior to such waiver have been reimbursed to
the Trustee.
SECTION 5.03. OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture. If the Trustee or an agent on
its behalf purchases any Mortgaged Property at a foreclosure or trustee's sale
by bidding any of or all the amounts outstanding under the Securities, then such
principal, premium, if any, interest and other amounts outstanding under the
Securities (in an aggregate amount equal to the amount bid by the Trustee or an
agent on its behalf) as are specified by the Trustee shall be deemed to be
satisfied and discharged concurrently with such purchase.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of Securities in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
The Trustee shall not commence foreclosure on any Mortgaged Property
unless a Phase I (and, if appropriate, a Phase II) environmental site assessment
of such Mortgaged Property is conducted at the expense of the Issuer, and no
material environmental liabilities or potential liabilities are detected
thereby.
SECTION 5.04. WAIVER OF PAST DEFAULTS. Subject to Section 8.02 and
upon payment to the Trustee of all costs and expenses incurred by the Trustee in
connection with an existing Default or Event of Default, the Holders of a
majority in principal amount of the Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences except (a) an
Event of Default in the payment of the principal of or premium, if any, or
interest on a Security, (b) an Event of Default depriving the Trustee or any
Holder of a Lien upon any of the Mortgaged Properties or other property included
in the Trust Estate or (c) an Event of Default in respect of any covenant or
provision of this Indenture that under Section 8.02 cannot be amended or
modified without the consent of the Holder of each Security affected thereby.
When a Default is waived, it is deemed cured, but no such waiver shall extend to
any subsequent or other Default or Event of Default or impair any consequent
right.
SECTION 5.05. CONTROL BY MAJORITY. The Holders of a majority in
principal amount of the Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture or that the
Trustee determines is unduly prejudicial to the rights of other Securityholders
or would involve the Trustee in personal liability or for which the Trustee has
failed to receive reasonable security or indemnity.
SECTION 5.06. LIMITATION ON SUITS. A Holder of Securities
may not pursue any remedy with respect to this Indenture or the Securities
unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Securities make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within sixty (60)
days after receipt of the request and the offer of security or indemnity;
and
(5) the Holders of a majority of principal amount of the Securities
do not give the Trustee a direction inconsistent with the request during
such 60-day period.
A Holder of Securities may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority over another
Holder.
SECTION 5.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of principal of and interest on the Securities held by such Holder, on
or after the respective due dates expressed in the Securities, or to bring suit
for the enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of such Holder.
SECTION 5.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default in
payment of interest, premium, if any, or principal specified in Section 5.01(l)
or (2) occurs and is continuing, the Trustee may recover judgment in its own
name and as trustee of an express trust against the Issuer for the whole amount
of principal and interest remaining unpaid and the amounts provided for in
Section 7.07.
SECTION 5.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee or an
agent on its behalf may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the Securityholders allowed in any judicial proceedings relative to the Issuer,
its creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the Holders in any election of a trustee in
bankruptcy or other Person performing similar functions, and any Custodian in
any such judicial proceeding is hereby authorized by each Holder to make
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 it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 7.07.
SECTION 5.10. PRIORITIES. If the Trustee collects any money
pursuant to this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: as set forth in clauses FIRST, SECOND, THIRD, FOURTH and
FIFTH of Section 7.15, in such order of priority;
THIRD: to the payment of any remaining Obligations; and
FOURTH: to the payment of the remainder, if any, to the Issuer, its
successors or assigns or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may determine.
The Trustee may fix a record date and payment date for any payment
to Securityholders pursuant to this Section. At least 15 days before such record
date, the Issuer shall mail to each Securityholder a notice that states the
record date, the payment date and amount to be paid.
SECTION 5.11. UNDERTAKING FOR COSTS. 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, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 5.07 or a suit by Holders of
more than 10% in principal amount of the Securities.
SECTION 5.12. WAIVER OF STAY OR EXTENSION LAWS. The Issuer (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any 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 shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 6.01. DISCHARGE OF LIABILITY ON SECURITIES; Defeasance. (a)
When (i) the Issuer delivers to the Trustee all Outstanding Securities (other
than Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
Outstanding Securities have become due and payable and the Issuer irrevocably
deposits with the Trustee funds sufficient to pay at maturity all Outstanding
Securities, including interest thereon (other than Securities replaced pursuant
to Section 2.07) and if in either case the Issuer pays all other Obligations,
then this Indenture shall, subject to Sections 6.01(c) and 6.06, cease to be of
further effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Issuer (accompanied by an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to such
satisfaction and discharge have been met pursuant to this Indenture and
applicable law) and at the cost and expense of the Issuer.
(b) Subject to Sections 6.01(c), 6.02, 6.06 and 7.07, the Issuer at
any time may terminate (i) all its obligations under the Securities and this
Indenture ("legal defeasance option") or (ii) its obligations with respect to
the Securities under Sections 4.01, 4.02, 4.03, 4.05, 4.06, 4.07, 4.08, 4.09,
4.14 (with respect to clauses (a), (c), (d)(ii) through (d)(iv), and (e) through
(h)), 4.15, 4.20, 4.21, 4.22 and 4.23 and Article Nine and the operation of
Sections 5.01(3), 5.01(4), 5.01(5) (with respect to those provisions of Article
Four cited in this clause (ii)), 5.01(6), 5.01(7) (with respect to any
Subsidiary), 5.01(8) (with respect to any Subsidiary), 5.01(10), 5.01(11) and
5.01(12) ("covenant defeasance option"). The Issuer may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Issuer exercises its legal defeasance option, payment of the
Securities may not be accelerated because of an Event of Default. If the Issuer
exercises its covenant defeasance option, payment of the Securities may not be
accelerated because of an Event of Default specified in Sections 5.01(3),
5.01(4), 5.01(5) (with respect to those provisions of Article Four cited in
clause (ii) above), 5.01(6), 5.01(7) (with respect to any Subsidiary), 5.01(8)
(with respect to any Subsidiary), 5.01(10), 5.01(11) or 5.01(12) or because of
the failure of the Issuer to comply with Article Nine.
Upon satisfaction of the conditions set forth herein and upon
request of the Issuer, the Trustee shall acknowledge in writing the discharge of
those obligations that the Issuer terminates and prior to the Permitted Merger
Date shall, at the expense of the Issuer, execute such documents prepared by the
Issuer causing the Liens created by the Security Documents and this Indenture to
be released.
(c) Notwithstanding clauses (a) and (b) above, the Issuer's
obligations in Sections 2.06, 2.07, 2.09, 4.10, 4.11, 4.12, 4.13, 4.14 (with
respect to clauses (b) and (d)(i)), 4.17, 4.18, 6.04, 6.05, 6.06, 7.07 and 7.08
shall survive until the Securities have been paid in full. Thereafter, the
Issuer's obligations in Sections 6.04, 6.05 and 7.07 shall survive.
SECTION 6.02. CONDITIONS TO DEFEASANCE. The Issuer may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Issuer irrevocably deposits in trust with the Trustee Cash
or U.S. Government Obligations for the payment of principal of, premium (if any)
and interest on, the Securities to the date of maturity or redemption, as the
case may be;
(2) the Issuer delivers to the Trustee a certificate from
Independent Accountants expressing their opinion that the payments of principal
and interest when due and without reinvestment on the deposited U.S. Government
Obligations plus any deposited Cash without investment will provide Cash at such
times and in such amounts (but, in the case of the legal defeasance option only,
not more than such amounts) as will be sufficient to pay principal and interest
when due on all Securities to maturity;
(3) 123 days pass after the deposit described in clause (1) above is
made and during the 123-day period no Default specified in Section 5.01(7) or
(8) with respect to the Issuer occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Issuer;
(6) the Issuer delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, and is not
required to be registered as, an investment company under the Investment Company
Act of 1940, as amended, and that the Trustee has a perfected first priority
security interest in the Cash and/or U.S. Governmental Obligations deposited
pursuant to Section 6.02(1);
(7) in the case of the legal defeasance option, 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 this Indenture there has been a change in
applicable Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Securities
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 time as would have been the case if
such defeasance had not occurred;
(8) in the case of the covenant defeasance option, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities 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 time
as would have been the case if such covenant defeasance had not occurred;
(9) the Rating Agencies have each provided written confirmation that
such defeasance will not, in and of itself, cause the withdrawal, downgrade or
qualification of any rating of the Securities or (after the Permitted Merger
Date) the unsecured debt of MAALP; and
(10) the Issuer delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities as contemplated by this Article 6
have been complied with.
SECTION 6.03. APPLICATION OF TRUST MONEY. The Trustee shall hold in
trust Cash or U.S. Government Obligations deposited with it pursuant to this
Article 6. It shall apply the deposited Cash and the Cash from U.S. Government
obligations through the paying agent and in accordance with this Indenture to
the payment of principal of and interest on the Securities.
SECTION 6.04. REPAYMENT TO ISSUER. The Trustee and the paying agent
shall promptly turn over to the Issuer upon request any excess Cash or
securities held by them pursuant to this Article Six. Subject to any applicable
abandoned property law, the Trustee and the paying agent shall pay to the Issuer
upon request any Cash held by them for the payment of principal or interest that
remains unclaimed for two years, and, thereafter, Holders of Securities entitled
to the Cash must look to the Issuer for payment as general creditors.
SECTION 6.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Issuer shall
pay and shall indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against deposited U.S. Government Obligations or the principal
and interest received on such U.S. Government Obligations.
SECTION 6.06. REINSTATEMENT. If the Trustee or paying agent is
unable to apply any Cash or U.S. Government Obligations in accordance with this
Article 6 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Issuer's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 6 until such time as the Trustee
or paying agent is permitted to apply all such Cash or U.S. Government
obligations in accordance with this Article 6; PROVIDED, HOWEVER, that, if the
Issuer has made any payment of interest on or principal of any Securities
because of the reinstatement of its obligations, the Issuer shall be subrogated
to the rights of the Holders of such Securities to receive such payment from the
Cash or U.S. Government Obligations held by the Trustee or paying agent.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default of which
a Trust Officer has actual knowledge has occurred and is continuing, the Trustee
shall exercise its rights and powers and use the same degree of care and skill
in its exercise as a prudent Person would exercise or use under the
circumstances in the conduct of such Person's own affairs.
(b) Except during the continuance of an Event of Default of which a
Trust Officer has actual knowledge:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and the Security Documents and no others and
no implied covenants or obligations shall be read into this Indenture and
the other Security Documents against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to
determine whether or not they conform on their face to the requirements of
this Indenture and the other Security Documents to the extent expressly
set forth herein and therein.
(3) following the Permitted Merger Date, the Trustee shall not be
required to perform any of its duties required to be performed pursuant to
the provisions of the Security Documents with respect to which the Lien
has been released pursuant to Section 9.03.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b)
of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.05.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Issuer.
(f) No provision of this Indenture or the other Security Documents
shall require the Trustee to pay any Advances, expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties
hereunder and thereunder, or in the exercise of any of its rights and powers, if
it believes that repayment of such Advances or funds or adequate indemnity
against such risk or liability is not assured to it.
(g) The Issuer hereby delivers to the Trustee the following
documents or instruments with respect to the Obligations: (i) a counterpart of
this Indenture; (ii) the Partnership Environmental Indemnity; (iii) the MAALP
Environmental Indemnity; (iv) the Borrower's Certificate; (v) the Manager's
Consent; (vi) the Repairs Agreement; (vii) the O&M Agreement; (viii) a copy of
each Mortgage, stamped as recorded; (ix) the Assignment of Leases and Rents; (x)
the Cash Collateral Agreement; (xi) a copy of each financing statement on Form
UCC-1 filed in respect of the Cash Collateral Agreement, if any, stamped as
filed. The Trustee shall have no responsibility to check any such document or to
determine its validity, except to verify that it has been received and appears
regular on its face.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely and shall
be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel to the effect that it is
authorized to act or refrain from acting.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers, PROVIDED that the Trustee's conduct does not constitute negligence or
bad faith.
(e) Any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Order.
(f) Whenever in the administration of this Indenture and the other
Security Documents 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 a certificate executed by an Officer
of the appropriate Person or an Opinion of Counsel.
(g) The Trustee shall be under no obligation to exercise any of the
rights or power vested in it by this Indenture or to honor the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(h) The Trust shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, note or other
paper or document provided to it in accordance with the provisions of this
Indenture, PROVIDED, HOWEVER, that the Trustee shall examine such certificates
and opinions to determine whether or not such certificates and opinions conform
to the requirements of this Indenture to the extent set forth herein; and
PROVIDED, FURTHER, that the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Issuer,
personally or by agent or attorney, upon reasonable advance written notice, with
such examination to be conducted during the Issuer's normal business hours and
in a manner that does not unreasonably interfere with the Issuer's conduct of
its affairs, and the Trustee's costs of any such examination shall be borne by
the Issuer or, if requested by one or more Holders, then by the Holder(s)
requesting that such examination be made.
(i) The Trustee shall have no liability or responsibility for any
actions or omissions to act of the Issuer or any other Person.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Issuer or its Affiliates with the same rights it
would have if it were not Trustee. Any paying agent, Security Registrar or
Security Co-Registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no
representation as to the validity, adequacy or enforceability of this Indenture,
the Securities or any of the Security Documents or the perfection or priority of
any security interest granted by this Indenture or the Security Documents, or as
to the value, title, condition, fitness for use of, or maintenance or
sufficiency of insurance on, or otherwise with respect to, any tangible property
or any substitute therefor included within the Trust Estate. The Trustee, shall
not be accountable for the Issuer's use of the proceeds from the Securities, and
it shall not be responsible for any statement in the Securities other than its
certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default or an Event of
Default occurs and is continuing and is actually known to a Trust Officer, the
Trustee shall mail to each Holder of Securities notice of the Default or Event
of Default within 30 days after it occurs. Except in the case of a Default in
payment of principal of, premium (if any) or interest on any Security, the
Trustee may withhold the notice if and so long as the Trustee in good faith
determines that withholding the notice is in the interests of Holders of
Securities. The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Section
5.01(l) or Section 5.01(2) of this Indenture, if the Trustee is then acting as
paying agent, or (ii) any Default or Event of Default of which a Trust Officer
shall have received written notification indicating that an event exists which
is a Default or an Event of Default or concerning which a Trust Officer has
obtained actual knowledge, and such notification shall not be deemed to include
receipt of information contained in any report or other document furnished under
Section 4.05 of this Indenture.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. As promptly as
practicable after each May 15 beginning with the May 15 following the date
hereof, and in any event prior to July 15 in each year and within 12 months from
the date the prior report hereunder was transmitted to the Holders of
Securities, the Trustee shall mail to each Holder of Securities in accordance
with TIA ss. 313(c), a brief report dated as of May 15 that complies with TIA
ss. 313(a). The Trustee also shall comply with TIA ss. 313(b).
A copy of each such report at the time of its mailing to Holders of
Securities shall be filed by the Issuer with the SEC and each stock exchange on
which the Securities are listed. The Issuer agrees to notify the Trustee
promptly whenever the Securities become listed on any stock exchange and of any
delisting thereof.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Issuer shall pay to
the Trustee monthly a trustee fee mutually agreed upon as reasonable
compensation for its services. The Trustee's compensation shall not be limited
by any law on compensation of a trustee of an express trust. The Issuer shall
reimburse the Trustee promptly upon request for all reasonable out-of-pocket
expenses incurred by it in connection with the administration of this trust and
the performance of its duties hereunder and under any other Security Documents,
including the reasonable compensation and expenses of the Trustee's agents and
counsel and the cost of any environmental site assessments referred to in the
third paragraph of Section 5.03. The Issuer shall indemnify the Trustee, making
payment on a current basis, against any loss, liability or expense (including
reasonable attorneys' fees and the cost of any environmental site assessments
referred to in the third paragraph of Section 5.03) incurred by it (unless such
loss, liability or expense is determined in a final non-appealable judgment to
have been incurred due to the Trustee's bad faith or negligence) in connection
with the administration of this trust and the performance of its duties
hereunder and under the other Security Documents. The Trustee shall notify the
Issuer promptly of any claim for which it may seek indemnity but its failure to
do so shall not affect the Trustee's right to indemnification hereunder.
To secure the Issuer's payment obligations in this Section and
Section 7.14, the Trustee shall have a Lien prior to (i) the lien of the
Securities and (ii) all other liens, if any, on all Cash or property held or
collected by the Trustee.
The Issuer's payment obligations pursuant to this Section shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of an Event of Default specified in subsection 5.01(7) or (8),
the expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign by so
notifying the Issuer. The Holders of a majority in principal amount of the
Securities may remove the Trustee by so notifying the removed Trustee and paying
to the removed Trustee all fees, costs and other expenses (including
indemnification payments and reimbursements of Advances (if any) owed to the
Trustee hereunder) and may appoint a successor Trustee. The Issuer may remove
the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, then, unless the Holders of Securities have
appointed a successor Trustee as provided above, the Issuer shall promptly
appoint a successor Trustee.
The Issuer will provide to the successor Trustee written
confirmation from each of the Rating Agencies that the appointment of such
successor Trustee will not, in and of itself, cause the withdrawal, downgrade or
qualification of the then current rating of the First Mortgage Bonds or (after
the Permitted Merger Date) the unsecured debt of MAALP. A successor Trustee
shall deliver a written acceptance of its appointment to the retiring Trustee
and to the Issuer. Immediately after receiving such acceptance, the retiring
Trustee shall, upon the payment of all fees, costs and expenses (including
indemnification payments and reimbursement of Advances), if any, owed to it
hereunder, transfer all property held by it as Trustee to the successor Trustee,
subject to the Lien provided for in Section 7.07, the resignation or removal of
the retiring Trustee shall then become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder of Securities.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer or the
Holders of a majority in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder of
Securities may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation, without any further act, shall
be the successor Trustee.
SECTION 7.10. ELIGIBILITY: DISQUALIFICATION. The Trustee shall at
all times satisfy the requirements of TIA ss.ss. 310(a)(1) and (a)(5). The
Trustee shall have a combined capital and surplus of at least $100,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with TIA ss. 310(b) during the period of time required thereby.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST Issuer. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated therein.
SECTION 7.12. SEPARATE AND CO-TRUSTEES.
(a) If at any time the Trustee shall deem it necessary for the
purpose of meeting legal requirements applicable to it in the performance of its
duties as mortgagee, trustee or beneficiary (or similar capacity) under any of
the Mortgages, the Trustee shall have the power to appoint one or more Persons
to act as separate trustees or co-trustees thereunder, jointly with the Trustee,
except as set forth in subsection (b)(1), of any of the Mortgaged Properties
subject to the Lien thereof, and any such Persons shall be such separate trustee
or co-trustee, with such powers and duties consistent with the Mortgages and
this Indenture as shall be specified in the instrument appointing him, her or
it. If the Trustee shall request the Issuer so to do, the Issuer shall join with
the Trustee in the execution of such instrument, but the Trustee shall have the
power to make such appointment without making such request.
(b) Every separate trustee and co-trustee shall, to the extent not
prohibited by law, be subject to the following terms and conditions:
(1) the rights, powers, duties and obligations conferred or imposed
upon such separate or co-trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate or co-trustee
jointly, as shall be provided in the instrument appointing him or it,
except to the extent that under any law of any jurisdiction in which any
particular act is to be performed any nonresident trustee shall be
incompetent or unqualified to perform such act, in which event such
rights, powers, duties and obligations shall be exercised and performed by
such separate trustee or co-trustee;
(2) all powers, duties, obligations and rights conferred upon the
Trustee (i) in respect of the custody of all cash deposited hereunder or
under the Cash Collateral Agreement or the Mortgages, (ii) in respect of
the making or recovery of any Advances hereunder or under the Cash
Collateral Agreement and (iii) to the extent not conferred or imposed upon
such separate or co-trustee pursuant to clause (b)(1) shall, in each case,
be exercised solely by the Trustee; and
(3) the Trustee may at any time by written instrument accept the
resignation of or remove any such separate trustee or co-trustee, and upon
the request of the Trustee, the Issuer shall join with the Trustee in the
execution, delivery and performance of all instruments and agreements
necessary or proper to make effective such resignation or removal, but the
Trustee shall have the power to accept such resignation or to make such
removal without making such request. A successor to a separate trustee or
co-trustee so resigning or removed may be appointed in the manner
otherwise provided herein.
(c) Such separate trustee or co-trustee, upon acceptance of such
trust, shall be vested with the estates or property specified in such
instrument, either jointly with the Trustee, or separately, as may be provided
therein, subject to all the trusts, conditions and provisions of the Mortgages;
and every such instrument shall be filed with the Trustee. Any separate trustee
or co-trustee may, at any time, by written instrument constitute the Trustee his
agent or attorney-in-fact with full power and authority, to the extent permitted
by law, to do all acts and things and exercise all discretion authorized or
permitted by him, for and in his behalf and in his name. If any separate trustee
or co-trustee shall be dissolved, become incapable of acting, resign, be removed
or die, all the estates, property, rights, powers, trusts, duties and
obligations of said separate trustee or co-trustee, so far as permitted by law,
shall vest in and be exercised by the Trustee, without the appointment of a
successor to said separate trustee or co-trustee, until the appointment of a
successor to said co-trustee is necessary as provided in this Section.
(d) Any notice, request or other writing, by or on behalf of any
Holder delivered to the Trustee shall be deemed to have been delivered to all
separate trustees and co-trustees.
(e) No trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder.
SECTION 7.13. SERVICER. Upon the occurrence of an Event of Default
or any event requiring the Trustee to exercise any discretion to give its
consent or to act or refrain from acting under any Mortgage or other Security
Document, in any case prior to the Permitted Merger Date, the Trustee may, and
at the direction of the Holders of 25% or more in principal amount of Securities
Outstanding shall, appoint a servicer at the expense of the Issuer to act on
behalf of the Trustee hereunder and under such other Security Documents. Any
Servicer appointed pursuant to this Section shall be a Qualified Servicer,
PROVIDED that, the Trustee shall have no liability (a) for any loss, liability,
cost or other expense incurred in connection with the Trustee's performance or
failure to perform under the Security Documents resulting from the Trustee's
failure (after good-faith efforts) to appoint a Servicer that meets the
definition of Qualified Servicer and is willing to enter into the Servicing
Agreement or (b) for any action or failure to act of a Qualified Servicer.
SECTION 7.14. ADVANCES. Prior to the Permitted Merger Date, the
Trustee shall make any Advances as and to the extent that (a) payments for which
Advances are made have not been made by the Issuer as required and (b) the
Trustee determines in its sole discretion that such Advances would be ultimately
recoverable from amounts on deposit in the Accounts or otherwise from the Issuer
or the Mortgaged Properties. The Trustee shall be entitled to the reimbursement
of any outstanding Advances made by it, together with interest thereon at the
Advance Rate, and the Issuer hereby covenants and agrees promptly to reimburse
the Trustee therefor. Prior to the Permitted Merger Date, the Trustee may make
withdrawals from the Operating Account to reimburse Advances as provided in
Paragraph 3(p) of the Cash Collateral Agreement.
SECTION 7.15 PRIORITIES OF PAYMENT. The Trustee shall apply any
amounts received pursuant to this Indenture (except for amounts due under
Section 7.07 and timely paid), including, without limitation, any amounts
deposited by the Issuer pursuant to Section 4.04 and any amounts in the
Operating Account or any other Account, in the following order:
FIRST: to reimburse the Trustee for any unreimbursed Advances
including, without limitation, Advances for any unpaid fees or
unreimbursed expenses of the Trustee or the Certificate Trustee, plus
interest thereon at the Advance Rate;
SECOND: to make payments from the Accounts, if any, as required by
the Cash Collateral Agreement;
THIRD: to make Monthly Payments;
FOURTH: to make payments of principal on the First Mortgage Bonds,
to the extent that any such payments are then due and owing;
FIFTH: to make payments on the First Mortgage Bonds of interest at
the Maturity Interest Rate, to the extent that any such payments are then
due and owing and have not been paid pursuant to clause THIRD above; and
SIXTH: to pay any other amounts due and owing hereunder;
PROVIDED, HOWEVER, that any amounts collected by the Trustee pursuant to Article
Five shall be paid out as provided in Section 5.10.
SECTION 7.16. ERRORS AND OMISSIONS INSURANCE. The Trustee shall keep
in force during the term of this Indenture a policy or policies of insurance
covering loss occasioned by the errors and omissions of its officers and
employees in connection with its obligations hereunder in customary form and
amounts issued by an insurer or insurers with a claims-paying ability acceptable
to the Rating Agencies.
ARTICLE EIGHT
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 8.01. AMENDMENTS AND SUPPLEMENTAL INDENTURES WITHOUT CONSENT
OF HOLDERS. Without the consent of any Holders of Securities, 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 amendments hereof or
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to evidence the succession of another Person to the Issuer
pursuant to the terms hereof and the assumption by any such successor of the
covenants of the Issuer herein and in the Securities contained; or
(b) to add to the covenants of the Issuer for the benefit of the
Holders of all or any of the Securities or to surrender any right or power
herein conferred upon the Issuer; or
(c) to add any additional Events of Default for the benefit of the
Holders of all or any of the Securities; PROVIDED, HOWEVER, that in respect of
any such additional Events of Default such amendment or 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 the Securities; or
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee as provided in Section 7.08; or
(e) 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 in any material respect; or
(f) 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 the Securities pursuant to Section 6.01 and subject to the
conditions set forth in Section 6.02; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities in any material
respect.
SECTION 8.02. AMENDMENTS AND SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS. With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such amendment or
supplemental indenture, the Issuer, when authorized by or pursuant to a Board
Resolution, and the Trustee may enter into one or more amendments hereof 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 under this
Indenture; PROVIDED, HOWEVER, that no such amendment or supplemental indenture
shall be entered into unless the Trustee has received written confirmation from
each of the Rating Agencies that such action will not, in and of itself, cause
the withdrawal, downgrade or qualification of the then current rating of the
First Mortgage Bonds or (after the Permitted Merger Date) the unsecured debt of
MAALP; and PROVIDED, FURTHER, that no such amendment or supplemental indenture
shall, without the consent of the Holder of each Outstanding Security affected
thereby:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or extend the time for payment of interest on
any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) reduce the premium payable on any Security;
(5) make any Security payable in money other than that stated in the
Security;
(6) make any change in Section 5.04 or 5.07 or this Section;
(7) waive any Default in the payment of principal of or interest on
any Security, or any Event of Default depriving the Trustee or any Holder
of a Lien upon any of the Mortgaged Properties included in the Trust
Estate; or
(8) release any property from the Lien of the Mortgages except in
accordance with the terms thereof and of this Indenture.
It shall not be necessary for the consent of the Holders of the
Securities under this Section 8.02 to approve the particular form of any
proposed amendment or supplement, but it shall be sufficient if such consent
shall approve the substance thereof.
After an amendment or supplement under this Section becomes
effective, the Issuer shall mail to Holders a notice briefly describing such
amendment or supplement. The failure to mail such notice to all Holders shall
not affect the validity of an amendment or supplement under this Section.
SECTION 8.03. COMPLIANCE WITH TRUST INDENTURE. Every amendment to or
supplement of this Indenture or the Securities shall comply with the TIA as then
in effect as evidenced by an Opinion of Counsel delivered to the Trustee at the
expense of the Issuer.
SECTION 8.04. REVOCATION AND EFFECT OF CONSENTS. A consent to an
amendment, supplement or waiver by a Holder of a Security shall bind such Holder
and every subsequent Holder of that Security or portion of the Security that
evidences the same debt as the consenting Holder's Security, even if notation of
the consent is not made on the Security. However, any such Holder or subsequent
Holder may revoke the consent as to such Holder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment, supplement or waiver becomes effective. After an amendment,
supplement or waiver becomes effective, it shall bind every Holder unless it
makes a change described in clauses (1) through (6) and the first subclause of
clause (7) of Section 8.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
Debt as the consenting Holder's Security.
The Issuer may, but shall not be obligated to, fix a record date for
the purpose of determining the Securityholders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who are Securityholders at such
record date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consents shall be valid or effective for more than 120
days after such record date.
SECTION 8.05. NOTATION ON OR EXCHANGE OF SECURITIES. If an
amendment, supplement or waiver changes the terms of a Security, the Issuer may
direct the Trustee to require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security regarding
the changed terms and return it to the Holder. Alternatively, if the Issuer so
determines, the Issuer in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 8.06. TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment, supplement or waiver authorized pursuant to this Article if the
amendment, supplement or waiver does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may but need
not sign it. In signing such amendment, supplement or waiver the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment,
supplement or waiver is authorized or permitted by this Indenture.
SECTION 8.07. EFFECT OF AMENDMENTS AND SUPPLEMENTAL INDENTURES. Upon
the execution of any amendment or supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such amendment or
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 8.08. WAIVER OF COMPLIANCE BY HOLDERS. Anything in this
Indenture to the contrary notwithstanding, any of the acts which the Issuer is
required to do or is prohibited from doing by any of the provisions of this
Indenture may, to the extent that such provisions might be changed or eliminated
by a supplemental indenture pursuant to Section 8.02 hereof upon consent of the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding, be omitted or done by the Issuer if there is obtained the
prior written consent thereto of the Holders of a majority of the aggregate
principal amount of the Securities at the time Outstanding, or the prior written
waiver of compliance with any such provision or provisions signed by such
Holders. The Issuer agrees promptly to file with the Trustee a duplicate
original of each such consent or waiver.
ARTICLE NINE
PERMITTED MERGER AND RELEASE OF PORTION OF TRUST ESTATE
SECTION 9.01. WHEN ISSUER MAY MERGE. The Partnership shall not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, except in compliance with, and upon
satisfaction of the conditions set forth in Sections 9.02 through 9.04 (a
"PERMITTED MERGER"). After the Permitted Merger Date, MAALP shall not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all its assets to, any Person, except in compliance with Sections
9.05 through 9.07.
SECTION 9.02. CONDITIONS PRECEDENT TO PERMITTED MERGER. The
Partnership shall merge with and into MAALP, with MAALP as the surviving
partnership, upon satisfaction of the following conditions:
(i) no Advances shall be outstanding and no Default or Event of
Default shall exist hereunder;
(ii) MAALP shall have obtained a rating by S&P and Moody's on its
unsecured debt, including the First Mortgage Bonds following the Permitted
Merger, of at least "BBB-" and "Baa3", respectively;
(iii) MAALP shall be a reporting company under the Exchange Act
pursuant to an effective registration on Form 10 (or any successor form for
registration under the Exchange Act);
(iv) the Trustee shall have received an Officers' Certificate
substantially in the form of Exhibit F (the "RELEASE CERTIFICATE");
(v) the Trustee shall have received an Opinion of Counsel (which
may, as to factual matters, rely on an Officers' Certificate) stating that, upon
the filing with public authorities referred to in clause (viii) below, all the
conditions to the Permitted Merger will have been satisfied, this Indenture will
remain in full force and effect and the First Mortgage Bonds will be the legal,
valid and binding obligations of MAALP, enforceable against MAALP in accordance
with their terms and entitled to the benefits of this Indenture, and opining as
to such other matters as the Trustee may reasonably request;
(vi) the Trustee shall have received any other information and/or
documentation which the Issuer may consider relevant or necessary or which the
Trustee may reasonably request;
(vii) the Partnership and MAALP shall have prepared such amendments
to their organizational documents and such other documentation as may be
required by applicable law to effect the Permitted Merger, all in form and
substance acceptable to the Trustee and the Rating Agencies and their respective
legal counsel and suitable for filing with public authorities, if such filing is
required;
(viii) all such filings with public authorities as may be required
to effect the Permitted Merger shall have been made, and MAALP shall have given
notice to the Trustee of the date of the last such filing (the "PERMITTED MERGER
DATE");
(ix) the Issuer shall pay all costs and expenses in connection with
the Permitted Merger, including but not limited to the fees of the Trustee and
the fees and expenses of experts and counsel to the Trustee;
(x) the Issuer shall have entered into a binding amendment or
supplement to this Indenture specifically providing that MAALP shall assume the
obligations under the First Mortgage Bonds and containing such other covenants,
and shall have complied with such other conditions, as the Rating Agencies may
request;
(xi) MAALP shall not have consolidated with or merged with or into,
or conveyed, transferred or leased all or substantially all its assets to, any
Person, except in compliance with Section 9.05 through 9.07; and
(xii) the Partnership and MAALP shall have supplied written notice
of the proposed Permitted Merger, at least 60 days prior to the Permitted Merger
Date, to the Certificate Trustee and each holder of a beneficial interest in the
Certificates, which notice shall be accompanied by the MAALP Exchange Act
Reports and the Information Statement.
SECTION 9.03. RELEASE OF PORTION OF TRUST ESTATE. Upon the
occurrence of a Permitted Merger, the Lien of the Mortgages on the Mortgaged
Properties and of the Security Documents shall be released and the Security
Documents (except for this Indenture, the Partnership Environmental Indemnity
and the MAALP Environmental Indemnity) and such Mortgaged Properties shall be
released from the Trust Estate. At the sole expense of MAALP, after receipt of
the notice from MAALP referred to in Section 9.02(viii), the Trustee shall
execute and deliver to MAALP such documentation prepared by MAALP and delivered
to the Trustee as may be required in accordance with this Indenture, the
Mortgages and the other Security Documents to effect such release.
SECTION 9.04. NOTICE TO HOLDERS. Within five (5) Business Days after
the Permitted Merger Date, the Trustee shall give notice of the Permitted Merger
to each Holder of the First Mortgage Bonds.
SECTION 9.05. CONSOLIDATIONS AND MERGERS OF, SALES, LEASES AND
CONVEYANCES BY, MAALP. Following the Permitted Merger Date, subject to Section
9.07, MAALP may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other partnership or
corporation, provided that in any case, (i) either MAALP shall be the continuing
partnership or the successor partnership or corporation shall be a partnership
or corporation organized and existing under the laws of the United States or a
state thereof and such successor partnership or corporation shall expressly
assume (if the Permitted Merger has occurred) the due and punctual payment of
the principal of (and premium, if any) and any interest on all of the Securities
according to their tenor, and shall expressly assume, in any case, the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by MAALP by supplemental indenture, satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation or
partnership and (ii) immediately after giving effect to such transactions and
treating any indebtedness which becomes an obligation of MAALP or any Subsidiary
as a result thereof as having been incurred by MAALP or such Subsidiary at the
time of such transaction, no Event of Default or any event which, after notice
or the lapse of time or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 9.06. RIGHTS AND DUTIES OF SUCCESSOR. In case of any such
consolidation, merger, sale, lease or conveyance and upon any such assumption by
the successor corporation or partnership, such successor corporation or
partnership shall succeed to and be substituted for MAALP with the same effect
as if it had been named herein as Issuer, and MAALP shall be relieved of any
further obligation under this Indenture and the Securities. Such successor
corporation or partnership thereupon may cause to be signed and may issue either
in its own name or in the name of MAALP any or all of the Securities issuable
hereunder which theretofore shall not have been signed by MAALP and delivered to
the Trustee; and, upon the order of such successor corporation or partnership
instead of MAALP and subject to all the terms, conditions and limitations in
this Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the Officers
of the general partner of MAALP to the Trustee for authentication, and any
Securities which such successor corporation or partnership 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 time of the execution hereof.
In case of any such consolidation, merger, sale, lease, or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
SECTION 9.07. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 9.05 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 or
partnership complies with the provisions of this Article and that all conditions
precedent herein provided for relating to such transaction have been complied
with and, in the case of any such transaction occurring after the Permitted
Merger, written confirmation from each of the Rating Agencies that the unsecured
debt rating of such successor corporation or partnership after giving effect to
such transaction shall not be less than the unsecured debt rating of MAALP
immediately prior to such transaction.
ARTICLE TEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 10.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of Holders of Securities 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 such Securities.
SECTION 10.02. CALL NOTICE AND PLACE OF MEETINGS. (a) The Trustee
may at any time call a meeting of Holders of Securities for any purpose
specified in Section 10.01, to be held at such time and at such place, as the
Trustee shall determine. Notice of every meeting of Holders of Securities,
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 11.06, and 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
shall have requested the Trustee to call a meeting of the Holders of Securities
for any purpose specified in Section 10.01, 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 an amount above specified, as the case may be,
may determine the time and the place for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 10.03. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled
to vote at any meeting of Holders of Securities, a Person shall be (a) a Holder
of one or more Outstanding Securities, or (b) a Person appointed by an
instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities 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 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 10.04. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities shall constitute a
quorum for a meeting of Holders of Securities. 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 that 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 10.02(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 which shall constitute a
quorum.
Except as limited by the proviso to Section 8.02, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Securities; PROVIDED, HOWEVER,
that, except as limited by the proviso to Section 8.02, 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 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.
Any resolution passed or decision taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 10.05, if
any action is to be taken at a meeting of Holders of Securities 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:
(a) there shall be no minimum quorum requirement for such
meeting; and
(b) the principal amount of the Outstanding Securities 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 10.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any provisions of this Indenture to
the contrary, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities in regard to proof of the
holding of Securities 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 may 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 11.05 and the
appointment of any proxy shall be proved in the manner specified in Section
11.05. 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 11.05 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 10.02(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 represented at the meeting.
(c) At any meeting each Holder of a Security or proxy shall be
entitled to one vote for each $1,000 principal amount of the Outstanding
Securities held or presented by him or her; 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 not the right to vote, except as a Holder
of a Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant to
Section 10.02 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 represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION 10.06. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The
vote upon any resolution submitted to any meeting of Holders of Securities shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Securities or of their representatives by proxy and the principal amounts and
serial numbers of the Outstanding Securities 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 a 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 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 10.02 and, if applicable, Section 10.04.
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 records so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 11.02. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders
of Securities may communicate pursuant to TIA ss. 312(b) with other Holders with
respect to their rights under this Indenture or the Securities. The Issuer, the
Trustee, the Security Registrar and anyone else shall have the protection of TIA
ss. 312(c).
SECTION 11.03. 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 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.
SECTION 11.04. 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 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 of
the Issuer 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 of the Issuer stating that the information as to
such factual matters is in the possession of the Company, unless such counsel
knows that the certificate or opinion or representations as to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 11.05. 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 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.
Except as herein otherwise expressly provided, such actions shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture,
if made in the manner provided in this Section.
(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 the certificate of any 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 Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient, and the
Trustee may in any instance require further proof with respect to any of the
matters referred to in this Section.
(d) The principal amount and serial numbers of Securities held by
any Person, and the date of his holding the same, shall be proved by the
Securities Register.
(e) If the Issuer shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Issuer may at its option, by Board Resolution, fix in advance a record date for
the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver, or other Act, but the Issuer
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; PROVIDED, that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver, or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any paying agent or the Issuer in reliance thereon, whether
or not notation of such action is made upon such Security.
SECTION 11.06. NOTICES. Any notice or communication shall be
sufficiently given if in writing and delivered in person or by telecopy (receipt
confirmed) or mailed by first-class mail, return receipt requested, addressed as
follows:
if to the Partnership:
Mid-America Capital Partners, L.P.
1209 Orange Street
Wilmington, Delaware 19801
Attn: Simon R.C. Wadsworth
6584 Poplar Avenue, Suite 340
Memphis, Tennessee 38138
Attn: Simon R.C. Wadsworth
with a copy to:
John A. Good, Esq.
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, Suite 2000
Memphis, Tennessee 38103
if to MAALP:
Mid-America Apartments, L.P.
6584 Poplar Avenue, Suite 340
Memphis, Tennessee 38138
Attn: Simon R.C. Wadsworth
with a copy to:
John A. Good, Esq.
Baker, Donelson, Bearman & Caldwell
165 Madison Avenue, Suite 2000
Memphis, Tennessee 38103
if to the Trustee, the Corporate Trust Office.
The Partnership, MAALP or the Trustee by notice to each other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder of Securities shall
be mailed to such Holder at his address as it appears on the registration books
of the Security Registrar and shall be sufficiently given if so mailed within
the time prescribed.
Failure to mail a notice or communication to a Holder of Securities
or any defect in it shall not affect its sufficiency with respect to other
Holders. If a notice or communication is mailed in the manner provided above, it
is duly given, whether or not the addressee receives it.
SECTION 11.07. WHEN TREASURY SECURITIES DISREGARDED. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Issuer or
by any Affiliate of the Issuer shall be disregarded and deemed not to be
Outstanding, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which a Trust Officer actually knows are so owned shall be so
disregarded. Also, subject to the foregoing, only Securities Outstanding at the
time shall be considered in any such determination.
SECTION 11.08. RULES BY PAYING AGENT AND REGISTRAR. The Security
Registrar and the paying agent may make reasonable rules for their functions.
SECTION 11.09. LEGAL HOLIDAYS. A "LEGAL HOLIDAY" is a Saturday, a
Sunday or a day on which banking institutions are not required to be open in the
State of New York, the State of Tennessee or the State of Illinois. If a Payment
Date is a Legal Holiday, payment shall be made on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the intervening period
on such amounts to be paid on such Payment Date; PROVIDED that if the Maturity
Date is a Legal Holiday, interest shall accrue for such intervening period. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 11.10. SUCCESSORS. All agreements of the Issuer in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.11. MULTIPLE ORIGINALS. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement. One signed copy is
enough to prove this Indenture.
SECTION 11.12. SECURITY AGREEMENT. This Indenture shall constitute a
security agreement under the Uniform Commercial Code. Upon the occurrence of any
Event of Default, and in addition to any other rights available under this
Indenture, any Security Document or any other instruments included in the Trust
Estate or otherwise available at law or in equity, the Trustee shall have all
rights and remedies of a secured party on default under the Uniform Commercial
Code to enforce the assignments and security interests contained herein and in
addition shall have the right, subject to compliance with any mandatory
requirements of applicable law, to sell or apply any or all of the Trust Estate
and any other rights and other interests assigned or pledged hereby at public or
private sale. All amounts received hereunder shall be applied first to all costs
and expenses incurred by the Trustee and its agents, if any, in connection with
such collection and enforcement and thereafter as provided in this Indenture.
SECTION 11.13. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities 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 11.14. GOVERNING LAW. This Indenture and each of the
Securities issued hereunder shall be deemed to be contracts made under the laws
of the State of New York and shall for all purposes be governed by, and
construed in accordance with, the laws of such State without giving effect to
applicable principles of conflicts of law to the extent that the application of
the laws of another jurisdiction would be required thereby.
SECTION 11.15. TABLE OF CONTENTS; HEADINGS. The table of contents
and the titles and headings of the Articles and Sections of this Indenture have
been inserted for convenience of reference only, are not being considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 11.16. LIMITATION ON RECOURSE. Notwithstanding any provision
to the contrary herein or in the Mortgages or the Securities, prior to the
Permitted Merger Date neither the Trustee nor any Securityholder shall have any
recourse to any partner of the Partnership or to any asset of any such partner
(except for the Partnership) in order to satisfy the indebtedness for the
payment of principal and interest evidenced by the Securities or any other
obligations of the Issuer hereunder or under any Security Documents. The
foregoing sentence shall not be deemed or construed to be a release of the
indebtedness evidenced by the Securities or in any way to impair, limit or
otherwise affect the Lien of the Mortgage or other Security Documents or to
prevent the Trustee or any Securityholder from naming the general partner of the
Partnership or its successors or assigns as a defendant to any action to enforce
any remedy so long as there is no personal or deficiency money judgment sought
or entered against such general partner or its successors or assigns for payment
of principal and interest evidenced by the Securities or any other obligation of
the Issuer hereunder or under any Security Document.
LASALLE NATIONAL BANK hereby accepts the trusts in this Indenture
declared and provided and agrees to perform its duties hereunder for the benefit
of the Holders, upon the terms and conditions hereinabove set forth.
<PAGE>
IN WITNESS WHEREOF, MID-AMERICA CAPITAL PARTNERS, L.P. has caused
this Indenture to be signed and acknowledged in its name and on its behalf by
the President of its general partner and the same to be attested by the
Secretary of such general partner; MID-AMERICA APARTMENTS, L.P. has caused this
Indenture to be signed and acknowledged in its name and on its behalf by the
Chief Financial Officer of its general partner and the same to be attested by
the Secretary of such general partner; and LASALLE NATIONAL BANK has caused this
Indenture to be signed and delivered by one of its Senior Vice Presidents and
the same to be attested by one of its Authorized Persons, all as of the day and
year first above written.
MID-AMERICA CAPITAL PARTNERS, L.P.
By: MAACP, Inc.
its general partner
By
Name: Simon R.C. Wadsworth
Title: President
Attest:
Name: Lynn A. Johnson
Title: Secretary
MID-AMERICA APARTMENTS, L.P.
By: Mid-America Apartment Communities,
Inc., its general partner
By
Name: Simon R.C. Wadsworth
Title: Chief Financial Officer
Attest:
Name: Lynn A. Johnson
Title: Secretary
LASALLE NATIONAL BANK, as Trustee
By
Name: Russell M. Goldenberg
Title: Senior Vice President
Attest:
Name:
Title: Authorized Person
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this [__]th day of February 1998, before me personally came Simon
R.C. Wadsworth, to me known, and who, sworn, did depose and say that he resides
at 274 Grove Park Road, Memphis, Tennessee 38117, that he is the President of
MAACP, Inc., one of the corporations described in and which executed the above
instrument; and that he signed his name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
Name:
Commission Expires
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this [__]th day of February 1998, before me personally came Simon
R.C. Wadsworth, to me known, and who, sworn, did depose and say that he resides
at 274 Grove Park Road, Memphis, Tennessee 38117, that he is the Chief Financial
Officer of Mid-America Apartment Communities, Inc., one of the corporations
described in and which executed the above instrument; and that he signed his
name thereto by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
Name:
Commission Expires
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this [__]th day of February 1998, before me personally came
Russell M. Goldenberg, to me known, and who, sworn, did depose and say that he
resides at 6757 Taos Court Lisle, Illinois 60532, that he is the Senior Vice
President of LaSalle National Bank, one of the corporations described in and
which executed the above instrument; and that he signed his name thereto by like
authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
Name:
Commission Expires
<PAGE>
A-1
EXHIBIT A
to Indenture
FORM OF
FIRST MORTGAGE BOND
<PAGE>
-7-
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE CERTIFICATE REGISTRAR FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY BOND 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.
EACH TRANSFEREE OF A BENEFICIAL INTEREST IN THIS BOND SHALL BE DEEMED TO
REPRESENT EITHER (A) THAT IT IS NOT, AND IS NOT USING THE ASSETS OF, AN EMPLOYEE
BENEFIT PLAN OR OTHER RETIREMENT PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(B) THAT IT HAS DETERMINED THAT, ASSUMING THIS BOND IS TREATED AS INDEBTEDNESS
WITH NO SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF 29 C.F.R. ss. 2510.3-101,
THE PURCHASE AND HOLDING OF A BENEFICIAL INTEREST IN THIS BOND BY THE TRANSFEREE
WOULD NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE BECAUSE THE RELEVANT CONDITIONS
FOR EXEMPTIVE RELIEF UNDER ONE OR MORE OF THE FOLLOWING PROHIBITED TRANSACTION
CLASS EXEMPTIONS HAVE BEEN SATISFIED: PROHIBITED TRANSACTION CLASS EXEMPTION
("PTCE") 96-23 (RELATING TO TRANSACTIONS EFFECTED BY IN-HOUSE ASSET MANAGERS);
PTCE 95-60 (RELATING TO CERTAIN TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL
ACCOUNTS); PTCE 91-38 (RELATING TO INVESTMENTS BY BANK COLLECTIVE INVESTMENT
FUNDS); PTCE 90-1 (RELATING TO INVESTMENTS BY INSURANCE COMPANY POOLED SEPARATE
ACCOUNTS); OR PTCE 84-14 (RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED
PROFESSIONAL ASSET MANAGER").
<PAGE>
[ ]% FIRST MORTGAGE BOND, DUE 2003
New York, New York
$ [______________] __, 1998
FOR VALUE RECEIVED, MID-AMERICA CAPITAL PARTNERS, L.P., a Delaware
limited partnership ("ISSUER", which term includes any successor Issuer as
defined in the Indenture hereinafter referred to), promises to pay to CEDE &
CO., or registered assigns ("PAYEE") [____________] DOLLARS ($[__________]) (the
"PRINCIPAL AMOUNT"), together with interest from the date hereof at the Interest
Rate (as defined below). Interest accruing hereunder shall be calculated on the
basis of a 360-day year of twelve 30-day months.
WHEN USED HEREIN, the following capitalized terms shall have the
following meanings:
"ACCELERATION PREMIUM" shall mean an amount equal to the greater of
(a) one percent (1%) of the Principal Amount and (b) the amount equal to the
remainder obtained by subtracting (x) the Principal Amount from (y) the present
value as of the date of such acceleration of the remaining scheduled payments of
principal and interest on this Bond (including the Principal Amount payable on
the Maturity Date) determined by discounting such payments at the Discount Rate.
"BOND" shall mean this [__]% First Mortgage Bond.
"CALCULATION DATE" shall mean the date of any declaration that the
principal amount of this Bond is due and payable pursuant to Paragraph 5 hereof.
"CLOSING DATE" shall be [____________ __], 1998.
"COMMENCEMENT DATE" shall be [____________] 1, 1998.
"DISCOUNT RATE" shall mean the rate which, when compounded monthly,
is equivalent to the yield, calculated by linear interpolation (rounded to the
nearest one-thousandth of one percent) of the yields of noncallable United
States Treasury obligations with terms (one longer and one shorter) most nearly
approximating the period from the Calculation Date to the Maturity Date, as
determined by the Trustee on the basis of Federal Reserve Statistical Release
H.15 Selected Interest Rates under the heading U.S. Governmental
Security/Treasury Constant Maturities or other recognized source of financial
market information selected by the Trustee for the week prior to the Calculation
Date.
"INTEREST RATE" shall mean a rate of [____________] percent
([_]%) per annum.
"MATURITY INTEREST RATE" shall mean the Interest Rate, if the
Permitted Merger shall have occurred, or the Maturity Default Rate, if the
Permitted Merger shall not have occurred.
"MATURITY DATE" shall be [January 31], 2003.
"MATURITY DEFAULT RATE" shall be the greater of (a) the Interest
Rate plus 2% per annum or (b) the Treasury Rate plus 2.80% per annum.
"PAYMENT DATE" shall be the first Business Day of each month
commencing on the first full calendar month after the Closing Date and
continuing to and including the Maturity Date.
"PRINCIPAL AMOUNT" shall be [______________________________]
DOLLARS ($[________]).
"TREASURY RATE" shall mean a rate per annum equal to the yield, as
of the Maturity Date, calculated by linear interpolation (rounded to the nearest
one-thousandth of one percent) of the yields of noncallable United States
Treasury obligations with terms of twenty (20) years (one longer and one
shorter) most nearly approximating the period from the Maturity Date to
[________ __], 2023, as determined by the Trustee on the basis of Federal
Reserve Statistical Release H.15 Selected Interest Rates under the heading U.S.
Governmental Security/Treasury Constant Maturities or other recognized source of
financial market information selected by the Trustee for the week prior to the
Maturity Date.
Capitalized terms not otherwise defined herein shall have the
meanings given to them in the Indenture dated as of November [__], 1997 (the
"INDENTURE") between the Issuer named therein and LaSalle National Bank, as
trustee (together with its successors and assigns under the Indenture, the
"TRUSTEE").
1. The Principal Amount and interest thereon shall be due and
payable in lawful money of the United States as follows:
(a) Commencing on the Commencement Date and continuing until
all amounts outstanding hereunder have been paid in full, all accrued and unpaid
interest at the Interest Rate shall be due and payable on each Payment Date.
(b) In the event that the Issuer has not paid the entire
Principal Amount of this Bond and any other amounts outstanding hereunder on or
before the Maturity Date, the following subparagraphs shall apply:
(i) From and after the Maturity Date, interest
shall accrue at the Maturity Interest Rate on the unpaid Principal Amount
outstanding on this Bond and, to the extent permitted by applicable law, on any
other amounts payable under this Bond or under the Indenture and shall be
immediately due and payable. Any payments received after the Maturity Date shall
be applied as set forth in Section 7.15 of the Indenture.
(ii) Prior to the Permitted Merger Date, pursuant to
the Cash Collateral Agreement, the Trustee shall apply all other funds in the
Accounts as set forth in Section 7.15 of the Indenture.
(d) Amounts due on this Bond shall be payable, without any
counterclaim, setoff or deduction whatsoever, at the place and in the manner set
forth in the Indenture.
2. This Bond is one of a duly authorized issue of securities of
Issuer designated as its [__]% First Mortgage Bonds, limited in aggregate
principal amount to $150,000,000, and issued under and entitled to the benefit
of the Indenture. This Bond has been duly executed and delivered by Issuer to
the Trustee. Reference is made to the Indenture and all indentures supplemental
thereto for a description of the nature, limitations and extent of the security,
and the rights, obligations, duties and immunities thereunder of the Trustee,
the Issuer and the Holders of the Securities.
3. This Bond may not be prepaid or redeemed prior to the Maturity
Date.
4. As provided in the Indenture, the obligations of the Issuer under
the First Mortgage Bonds and the Indenture are secured prior to the Permitted
Merger Date by Mortgages granted by the Issuer, as mortgagor (or grantor, in the
case of a deed of trust), to the Trustee, as mortgagee (or beneficiary, in the
case of a deed of trust), and by the Assignment of Leases and Rents, the Cash
Collateral Agreement and the other Security Documents.
5. If an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal amount of this Bond may become or be
declared to be due and payable, and upon such declaration shall become due and
payable, and the Trustee may exercise all available remedies under any or all of
the Mortgages and the other Security Documents, in the manner, with the effect
and subject to the conditions provided in the Indenture. Upon such declaration,
provided that such declaration occurs prior to the Permitted Merger Date, the
Issuer agrees to pay the Acceleration Premium to the Payee.
6. Pursuant to the terms and conditions in the Indenture, the Issuer
at any time may terminate some or all of its obligations under the First
Mortgage Bonds and the Indenture if the Issuer deposits with the Trustee money
or U.S. Government obligations for the payment of principal and interest on the
First Mortgage Bonds to maturity.
7. THE INDENTURE AND THIS BOND SHALL BE DEEMED TO BE CONTRACTS MADE
UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF SUCH STATE WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
This Bond shall not be or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture.
[NO FURTHER TEXT ON THIS PAGE]
<PAGE>
IN WITNESS WHEREOF, Issuer has caused this Bond to be executed and
delivered as of the day and year first above written.
MID-AMERICA CAPITAL PARTNERS, L.P.,
a Tennessee limited partnership
By: MAACP, Inc., its general
partner
By
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
LASALLE NATIONAL BANK, as Trustee,
certifies that this is one of the
First Mortgage Bonds referred to in
the Indenture.
By:
Authorized Signatory
<PAGE>
- ------------------------------------------------------------------------------
ASSIGNMENT FORM
To assign this First Mortgage Bond, fill in the form below: I or we
assign and transfer this First Mortgage Bond to
- ------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
- ------------------------------------------------------------------------------
(insert assignee's social security or taxpayer I.D. number)
and irrevocably appoint
_______________________________________________________ agent to transfer
this First Mortgage Bond on the books of the Issuer. The agent may
substitute another to act for him.
Date:
Signature:
(Sign exactly as your name appears on the
first page of this First Mortgage Bond)
- ------------------------------------------------------------------------------
<PAGE>
B-1
EXHIBIT B
to Indenture
MORTGAGED PROPERTIES AND APPRAISED VALUES
MORTGAGED PROPERTY APPRAISED VALUE
<PAGE>
C-1
EXHIBIT C
to Indenture
FORM OF
MORTGAGE
<PAGE>
D-1
EXHIBIT D
to Indenture
FORM OF
CASH COLLATERAL AGREEMENT
<PAGE>
E-1
EXHIBIT E
to Indenture
FORM OF
RELEASE CERTIFICATE
<PAGE>
F-3
EXHIBIT F
to Indenture
OFFICERS' CERTIFICATE
RELEASE PURSUANT TO
SECTION 9.03
To: LaSalle National Bank, as trustee (the "Trustee") under the
Indenture, dated as of November __, 1997 (the "Indenture"),
between Mid-America Capital Partners, L.P. (the "Partnership")
and Mid-America Apartments, L.P. ("MAALP" and, together with the
Partnership, the "Issuer") and the Trustee.
This Certificate is issued pursuant to Section 9.02(iv) of the Indenture.
Except as the context otherwise requires, all capitalized terms used in this
Officers' Certificate without definition have the meanings specified in the
Indenture.
The undersigned officers of the Issuer hereby certify in the name and on
behalf of the Issuer as follows:
(i) MAALP has obtained a rating by Moody's and S&P of its unsecured debt,
including the First Mortgage Bonds following the Permitted Merger, of at least
"BBB-" and "Baa3" respectively. The rating letters of Moody's and S&P are
attached hereto as Annex A-1 and Annex A-2, respectively;
(ii) MAALP is a reporting company under the Exchange Act pursuant to an
effective registration statement on Form 10 thereunder;
(iii) no later than [specify date at least 60 days prior to date of the
Release Certificate], the Partnership and MAALP have supplied written notice of
the proposed Permitted Merger to the Certificate Trustee and each holder of a
beneficial interest in the Certificates, which notice was accompanied by the
MAALP Exchange Act Reports and the Information Statement;
(iv) attached hereto as Annex B is the opinion of [name of counsel]
addressed to the Trustee, which complies with the requirements of Section
9.02(v) of the Indenture;
(v) no Default or Event of Default exists under the Indenture;
(vi) the Issuer agrees to be responsible for all costs and expenses in
connection herewith, as described in Section 9.02(ix) of the Indenture,
including but not limited to, the fees of the Trustee and the fees and expenses
of experts and counsel to the Trustee;
(vii) the Issuer requests you to execute and deliver the instruments
attached hereto, which are necessary to effect a release of the Security
Documents and the Mortgaged Properties from (A) the Lien of the Mortgage and (B)
the Trust Estate;
(viii) the undersigned have read this Officers' Certificate and have made
a reasonable examination of the circumstances supporting the assertions
contained in this Officers' Certificate and believe that such examination was of
a scope sufficient to enable the undersigned to express an informed opinion that
the statements contained herein are correct; and, in the opinion of each of the
undersigned, all conditions precedent to a Permitted Merger (except those set
forth in Section 9.02(viii) of the Indenture) have been complied with.
[NO FURTHER TEXT ON THIS
PAGE]
<PAGE>
IN WITNESS WHEREOF, we have set our hands this
day of , [199_][200_].
MID-AMERICA CAPITAL PARTNERS, L.P.
By: MAACP, Inc.
its general partner
By:
Name:
Title:
By:
Name:
Title:
MID-AMERICA APARTMENTS, L.P.
By: Mid-America Apartment Communities,
Inc., its general partner
By:
Name:
Title:
By:
Name:
Title:
EXHIBIT 4.2
================================================================================
MID-AMERICA FINANCE, INC.
Depositor
and
LASALLE NATIONAL BANK
Trustee
-------------------------------------
AGREEMENT OF TRUST
Dated as of [February ___], 1998
-------------------------------------
Commercial Mortgage Pass-Through Certificates, Series 1998-1
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.01 Definitions............................................................1
1.02 Interpretation.........................................................6
ARTICLE II
DECLARATION OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
2.01 Creation and Declaration of Trust Fund; Conveyance of Bond.............7
2.02 Acceptance by Trustee..................................................8
2.03 Representations and Warranties of the Depositor........................9
ARTICLE III
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
3.01 Distributions.........................................................11
3.02 Statements to Certificateholders......................................11
3.03 Reports by the Depositor..............................................12
ARTICLE IV
THE CERTIFICATES
4.01 Designation, Amount and Issue of Certificates.........................12
4.02 Authentication and Delivery of Certificates...........................12
4.03 Form of Certificates and Trustee's Certificate of
Authentication........................................................12
4.04 Denomination and Date of Certificates; Payment of Principal
and Interest; Global Certificates.....................................12
4.05 Execution of Certificates.............................................15
4.06 Exchange and Registration of Transfer of Certificates.................15
4.07 Mutilated, Destroyed, Lost or Stolen Certificates.....................16
4.08 Cancellation of Surrendered Certificates..............................17
4.09 Temporary Certificates................................................17
ARTICLE V
THE DEPOSITOR
5.01 Maintenance of Existence..............................................18
-i-
<PAGE>
5.02 Limitation on Liability of the Depositor..............................18
5.03 Indemnification.......................................................18
ARTICLE VI
TRUSTEE TERMINATION EVENTS
6.01 Trustee Termination Events............................................18
6.02 Limitations on Suits by Certificateholders............................19
6.03 Unconditional Right of Certificateholders to Receive
Distributions and to Institute Certain Suits..........................20
ARTICLE VII
CONCERNING THE TRUSTEE
7.01 Duties of Trustee.....................................................20
7.02 Certain Matters Affecting the Trustee.................................21
7.03 Trustee Not Liable for Certificates or the Bond.......................22
7.04 Trustee May Own Certificates..........................................23
7.05 Trustee's Fees and Expenses...........................................24
7.06 Eligibility Requirements for Trustee..................................24
7.07 Resignation and Removal of Trustee....................................24
7.08 Successor Trustee.....................................................25
7.09 Merger or Consolidation of Trustee....................................26
7.10 Appointment of Co-Trustee or Separate Trustee........................26
7.11 Appointment of Authenticating Agent...................................27
ARTICLE VIII
TERMINATION
8.01 Termination...........................................................28
8.0 Termination Upon Permitted Merger.....................................29
8.03 Trusts Irrevocable....................................................30
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.01 Amendment.............................................................30
9.02 Counterparts..........................................................31
9.03 Governing Law.........................................................31
9.04 Notices...............................................................31
9.05 Notices to the Rating Agency..........................................31
9.06 Severability of Provisions............................................32
9.07 Limitation on Rights of Certificateholders............................32
-ii-
<PAGE>
9.08 Certificates Nonassessable and Fully Paid.............................33
9.09 Reproduction of Documents.............................................33
9.10 No Partnership........................................................33
9.11 Actions of Certificateholders.........................................33
9.12 Successors and Assigns................................................34
9.13 Officer's Certificates and Opinions of Counsel; Statements
to be Contained Therein...............................................34
EXHIBITS
Exhibit A Form of Certificates
Exhibit B Depositor's Instruction to Depository
Exhibit C Trustee's Instruction to Depository
-iii-
<PAGE>
THIS AGREEMENT OF TRUST dated as of [February ___], 1998, between
Mid-America Finance Inc., a Delaware corporation, as depositor (the
"Depositor"), and LaSalle National Bank, a national banking association, as
trustee (the "Trustee").
W I T N E S S E T H T H A T:
In consideration of the mutual agreements herein contained, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS.
Whenever used in this Agreement, the following words and phrases,
unless the context otherwise requires, shall have the following meanings and
such meanings shall be equally applicable to the singular and plural forms of
such terms, as the context may require. Capitalized terms used but not defined
herein shall have the meanings assigned such terms in the Indenture.
ACCOUNTS: The "Accounts" established pursuant to, and defined in,
the Cash Collateral Agreement.
ACTUAL KNOWLEDGE: When used with respect to a corporation shall mean
actual knowledge of a Responsible Officer thereof; when used with respect to
actual knowledge of a bank or trust company shall mean actual knowledge of a
Responsible Officer in the corporate trust office thereof; when used with
respect to actual knowledge of a partnership shall mean actual knowledge of its
general partner, if an individual or as aforesaid if its general partner is a
corporation.
ADVANCE: As defined in the Indenture.
AFFILIATE: With respect to any specified Person, any other Person,
directly or indirectly, controlling or controlled by or under 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, relation to individuals or
otherwise, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
AGREEMENT: This Agreement of Trust and all amendments and
supplements hereto.
AUTHENTICATING AGENT: Any authenticating agent appointed pursuant to
SECTION 7.11 of this Agreement.
<PAGE>
AUTHORIZED OFFICER: Any representative of the Depositor authorized
to execute and who executes the Certificates manually or by facsimile signature
on behalf of the Depositor.
BENEFICIAL OWNER: With respect to a Global Certificate, the Person
who is the beneficial owner of such Certificate as reflected on the books of the
Depository or on the books of a Person maintaining an account with such
Depository (directly as a Depository Participant or indirectly through a
Depository Participant, in accordance with the rules of such Depository). The
Trustee shall have the right to require, as a condition to acknowledging the
status of any Person as a Beneficial Owner under this Agreement, that such
Person provide evidence at its expense to the Trustee of its status as a
Beneficial Owner hereunder.
BOND: Collectively, the [_]% First Mortgage Bonds, Due 2003 of
Mid-America Capital Partners, L.P. (or any successor Issuer under the
Indenture), in an aggregate principal amount of $[______], being all of the
securities outstanding under the Indenture.
BOND DISTRIBUTION DATE: As defined in SECTION 8.02(b).
BOND MATURITY DATE: [January 31], 2003.
BORROWER: Mid-America Capital Partners, L.P.
BUSINESS DAY: Any day other than (i) a Saturday or a Sunday, or (ii)
a day on which federally insured depository institutions in the states of New
York, Illinois or Tennessee or any other state in which the Corporate Trust
Office is located are authorized or obligated by law, governmental decree or
executive order to be closed.
CASH COLLATERAL AGREEMENT: That certain Cash Collateral Account
Security, Pledge and Assignment Agreement, dated as of November 21, 1997, among
the Issuer, First Union National Bank, Morgan Stanley Mortgage Capital Inc. and
the Indenture Trustee, as amended by that certain First Amendment to Cash
Collateral Account Security, Pledge and Assignment Agreement, dated as of
January 20, 1998, and as further amended from time to time.
CERTIFICATE CO-REGISTRAR: Any co-registrar appointed pursuant to
SECTION 4.06 of this Agreement.
CERTIFICATE REGISTER: The register maintained pursuant to SECTION
4.06 of this Agreement.
CERTIFICATE REGISTRAR: The registrar designated in SECTION 4.06 of
this Agreement.
CERTIFICATEHOLDER: The person in whose name a Certificate is
registered in the Certificate Register.
-2-
<PAGE>
CERTIFICATES: The Commercial Mortgage Pass-Through Certificates,
Series 1998-1 issuable hereunder.
CLOSING DATE: February [__], 1998.
CODE: The Internal Revenue Code of 1986, as amended, any successor
statutes thereto, and applicable U.S. Department of the Treasury regulations
issued pursuant thereto in proposed, temporary or final form.
CORPORATE TRUST OFFICE: The principal office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date of the execution of this Agreement is
located at 135 South LaSalle Street, Chicago, Illinois 60674-4107, Attention:
Asset-Backed Securities Trust Service Group--MidAmerica 1998-1.
DEPOSITOR: Mid-America Finance, Inc., a Delaware corporation.
DEPOSITOR ORDER AND DEPOSITOR REQUEST: Respectively, a written order
or request signed in the name of the Depositor by the Chief Executive Officer,
the President or any Vice President, and by the Chief Financial Officer, the
Secretary or an Assistant Secretary of the Depositor, and delivered to the
Trustee.
DEPOSITOR'S INSTRUCTION TO DEPOSITORY: Written instructions of the
Depositor to the Depository, substantially in the form of Exhibit B hereto,
instructing the Depositor to register the beneficial ownership of the Bond in
the name of the Trustee.
DEPOSITORY PARTICIPANT: A Person for whom, from time to time, the
Depository effects book-entry transfers and pledges of securities deposited with
the Depository.
DEPOSITORY: The Depository Trust Company or a successor appointed by
the Registrar (which appointment shall be at the direction of the Depositor if
the Depositor is legally able to do so).
DISTRIBUTION DATE: The first Business Day of each calendar month,
beginning on March 2, 1998.
DUE DATE: With respect to any Distribution Date, the date on which a
Monthly Payment is due on the Bond and which occurs on or next preceding such
Distribution Date.
FINAL CERTIFICATE DISTRIBUTION DATE: [_______], 2005.
FINAL DISTRIBUTION DATE: The Distribution Date on which the final
distribution in respect of the Certificates will be made pursuant to SECTION
8.01.
FORECLOSED PROPERTY: The Property if acquired by the Indenture
Trustee or by any nominee of the Indenture Trustee by foreclosure or acceptance
of a deed in lieu of foreclosure or otherwise.
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FORECLOSURE PROCEEDS: Proceeds received by the Indenture Trustee in
respect of the Foreclosed Property (including, without limitation, proceeds from
the rental or operation of such Foreclosed Property) prior to the final
liquidation of the Foreclosed Property.
GAAP: Generally accepted accounting principles as in effect in the
United States from time to time, consistently applied.
GLOBAL CERTIFICATES: Certificates in global form deposited with the
Depository.
HOLDER: A Certificateholder.
INDEBTEDNESS: All principal of and interest on the Bond and any and
all other Obligations (as defined in the Indenture) of the Issuer under the Bond
or the Indenture.
INDENTURE: That certain Amended and Restated Indenture of even date
herewith between Mid-America Capital Partners, L.P. and Mid-America Apartments,
L.P., as issuer, and LaSalle National Bank, as trustee thereunder.
INDENTURE EVENT OF DEFAULT: An "Event of Default" as defined in the
Indenture.
INDENTURE TRUSTEE: LaSalle National Bank, a national banking
association, as trustee under the Indenture, and its permitted successor and
assigns.
INDIVIDUAL CERTIFICATE: A definitive certificate in fully registered
form without coupons, representing a Certificate, which is not a Global
Certificate.
INTEREST ACCRUAL PERIOD: With respect to a Distribution Date the
one-month period commencing on and including the prior Distribution Date (or in
the case of the first Distribution Date, the Closing Date) and ending on and
including the day next preceding such Distribution Date.
ISSUE DATE: The date of original issuance of the Certificates.
ISSUER: The Borrower and Mid-America Apartments, L.P., as "Issuer"
under and as defined in the Indenture.
LIEN: Any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance, charge or transfer of,
in or upon the Property or any portion thereof or the Borrower, or any interest
therein, including, without limitation, any conditional sale or other title
retention agreement, any financial lease having substantially the same economic
effect as any of the foregoing, the filing of any financing statement, and
mechanic's, materialmen's and other similar liens and encumbrances.
LIQUIDATION PROCEEDS: Cash received by the Indenture Trustee in
connection with the final liquidation of the Property, whether through judicial
foreclosure, sale or otherwise, to the extent such cash is not Foreclosure
Proceeds and other than amounts required to be paid to the Borrower pursuant to
law or the terms of the related Mortgage.
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MATURITY INTEREST RATE: As defined in the Indenture.
MONTHLY PAYMENT: With respect to any Distribution Date, the
scheduled monthly payment of interest due on the related Due Date in accordance
with the terms of the Bond.
MOODY'S: Moody's Investors Service, Inc.
MORTGAGE: The term "Mortgage" means the deed of trust, security
agreement and assignment of rents and leases with respect to each Mortgaged
Property, from the Issuer, as grantor, to the trustee named therein, as amended
or supplemented from time to time as permitted hereby or thereby.
OFFICER'S CERTIFICATE: A certificate signed by a Responsible Officer
of the Depositor and delivered to the Trustee.
OPINION OF COUNSEL: A written opinion of counsel acceptable to the
Trustee, each Rating Agency and any other party hereto to whom such opinion is
to be delivered pursuant to the applicable terms of this Agreement, who may be
counsel for the Trustee of the Depositor.
PERCENTAGE INTEREST: As to any Individual Certificate, the
percentage interest derived as of a date of determination by dividing the
outstanding principal amount of such Individual Certificate by the aggregate
outstanding principal amount of all the Certificates as of such date of
determination.
PERMITTED MERGER DATE: As defined in the Indenture.
PERSON: Any individual, corporation, partnership, limited liability
company, joint venture, association, bank, joint-stock company, trust,
unincorporated organization or government, or any agency or political
subdivision thereof.
PROPERTY: The "Mortgaged Properties," as defined in the Indenture.
RATING AGENCIES: Moody's and S&P.
RECORD DATE: As defined in Section 4.04(c).
RESPONSIBLE OFFICER: When used with respect to the initial Trustee,
any officer in its Asset Backed Securities Trust Service Group with particular
responsibility for the matters evidenced by this Agreement and with respect to
any successor Trustee, any officer in its Corporate Trust Department or any
similar group administering the trusts hereunder and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
Responsible Officer shall mean, with respect to any other corporation, the
chairman of the board, the president, any vice president or the treasurer.
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S&P: Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations thereunder.
SECURITY DOCUMENTS: As defined in the Indenture.
TRUST: The Trust formed pursuant to this Agreement.
TRUST FUND: The corpus of the trust created by this Agreement,
consisting of the assets referred to in the first paragraph of SECTION 2.01(a)
of this Agreement.
TRUSTEE: LaSalle National Bank, a national banking association, as
trustee hereunder, and its permitted successors and assigns.
TRUSTEE FEE: The fee of the Trustee hereunder payable in the amounts
and in the manner separately agreed between the Trustee and the Depositor.
TRUSTEE TERMINATION EVENT: As defined in SECTION 6.01(a) of this
Agreement.
TRUSTEE'S INSTRUCTION TO DEPOSITORY: As defined in Section 8.02(c)
of this Agreement.
UNDERWRITER: Morgan Stanley & Co. Incorporated.
UNSCHEDULED PAYMENTS: All amounts received by the Trustee on the
Bond (i) during the continuation of an Indenture Event of Default or (ii) in
respect of Foreclosure Proceeds.
SECTION 1.02 INTERPRETATION.
(a) Whenever this Agreement refers to a Distribution Date and a
"related" Interest Accrual Period or Due Date, such reference shall be to the
Interest Accrual Period or Due Date, as applicable, immediately preceding such
Distribution Date.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in SECTION
1.01 shall have the respective meanings given to them under GAAP.
(c) Unless otherwise specified in this Agreement, references to
"Article" or "Section" followed by a number shall be references to articles and
sections of this Agreement.
(d) The words "hereof," "herein," and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section and
Exhibit references contained in this
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Agreement are references to Sections and Exhibits in or to this Agreement unless
otherwise specified.
ARTICLE II
DECLARATION OF TRUST FUND;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01 CREATION AND DECLARATION OF TRUST FUND; CONVEYANCE OF
BOND.
(a) The Depositor hereby establishes the Trust and hereby
irrevocably sells, transfers, assigns, delivers, sets over and otherwise conveys
or causes to be conveyed to the Trustee for the benefit of Certificateholders,
without recourse, all of the Depositor's right, title and interest, whether now
owned or hereafter acquired, now existing or hereafter arising, wherever
located, in and to (i) the Bond, the Indenture and the Mortgages and all amounts
due or to become due on or after the Closing Date pursuant to the Bond, the
Indenture and the Mortgages (including, without limitation, interest, premium
(if any) and principal), (ii) all property that secures the Bond and has been or
will be acquired by foreclosure, deed-in-lieu of foreclosure or otherwise, (iii)
the Cash Collateral Agreement and all Accounts and other accounts and funds
established by the Indenture Trustee or the Borrower pursuant to the Cash
Collateral Agreement or otherwise, and all amounts and investments from time to
time deposited and held therein or credited thereto pursuant to the applicable
provisions of this Agreement, the Indenture or the Cash Collateral Agreement,
(iv) the Security Documents, (v) any insurance policies obtained with respect to
the Mortgaged Properties, and (vi) all proceeds of the conversion, voluntary or
involuntary, of any of the foregoing into cash, instruments, securities or other
property, including without limitation all amounts from time to time held in or
credited to the Accounts, whether in the form of cash or invested in
instruments, securities or other property, to have and to hold, in trust, and,
concurrently with such transfer and assignment, the Depositor has executed and
the Trustee has caused to be authenticated and delivered to and upon the order
of the Depositor, in exchange for the Trust Fund, Certificates in the authorized
denominations evidencing the entire ownership of the Trust Fund.
In connection with such transfer and assignment, the Depositor has
concurrently executed and delivered the Depositor's Instruction to Depository.
The ownership of the Trust Fund is vested in the Trustee for the
benefit of the Certificateholders.
(b) It is the express intent of the Depositor that the conveyance by
the Depositor to the Trustee of the Trust Fund as provided for in this Section
be, and be construed as, a sale by the Depositor to the Trustee for the benefit
of the Certificateholders. Further, it is not intended that such conveyance be
deemed to be a pledge of the Trust Fund by the Depositor to the Trustee to
secure a debt or other obligation of the Depositor. However, in the event that
the Trust Fund is held to be property of the Depositor, or if for any reason
this Agreement is held or deemed to create a security interest, then the
Depositor hereby grants to
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the Trustee for the benefit of the Certificateholders a security interest in all
its right, title and interest in and to the Trust Fund and (i) this Agreement
shall be a security agreement within the meaning of Articles 8 and 9 of the New
York, Delaware and Tennessee Uniform Commercial Codes and the Uniform Commercial
Code of any other applicable jurisdiction to secure the Certificates (and the
amounts to which the Trustee is entitled under this Agreement); (ii) each of the
conveyances provided for in this Section are hereby a grant by the Depositor to
the Trustee for the benefit of the Certificateholders of a security interest in
all of the Depositor's right, title and interest, whether now owned or hereafter
arising wherever located, in and to the Trust Fund; (iii) the possession by the
Trustee, or any agent of the Trustee, of the Bond or such other items of the
Trust Fund which constitute instruments, money, negotiable documents or chattel
paper is "possession by the secured party", or possession by a purchaser or a
person designated by such secured party, for purposes of perfecting the security
interest pursuant to the Uniform Commercial Code (including, without limitation,
Sections 9-305, 8-313 or 8-321 thereof); and (iv) notifications to persons
holding such property, and acknowledgments, receipts or confirmations from
persons holding such property, shall be deemed notifications to, or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Trustee for the purpose of perfecting
such security interest under applicable law. Each of the Depositor and the
Trustee shall, to the extent consistent with this Agreement and within its
power, take such actions as may be necessary to ensure that, if this Agreement
were deemed to create a security interest in the Bond and/or the Trust Fund,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law (PROVIDED, HOWEVER, that nothing in this
sentence shall impose an affirmative obligation on the Trustee to undertake or
to determine that there should be taken any actions except for those expressly
set forth elsewhere in this Agreement, or as otherwise expressly directed by the
Depositor pursuant to this Agreement). The Depositor shall prepare and file any
UCC financing statements or any UCC continuation statements necessary to perfect
or continue the security interests caused to be created by the Depositor on or
before the Closing Date, and shall take such other steps as are reasonably
requested by the Trustee to continue such UCC security interests as aforesaid.
If the conveyance referred to in the first sentence of the preceding
paragraph is deemed to be a loan and the trust created by this Agreement
terminates prior to the satisfaction of the claims of any Person holding any
Certificates, the security interest created hereby shall continue in full force
and effect and the Trustee shall be deemed to be the custodian for the benefit
of such Person (and in such capacity shall be entitled to all of the protections
and benefits of ARTICLE VII hereof, and all proceeds shall be distributed as
herein provided.
SECTION 2.02 ACCEPTANCE BY TRUSTEE.
(a) The Trustee hereby acknowledges receipt of the entire beneficial
interest in the Bond and the other assets comprising the Trust Fund and declares
that the Trustee holds and will hold such assets delivered to the Trustee in
trust, and subject to the provisions herein set forth, for the use and benefit
of all present and future Certificateholders and the Trustee. The Trustee has no
Actual Knowledge on the Closing Date of any adverse claims, liens, or
encumbrances (other than the liens or encumbrances created or contemplated by
this
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Agreement or the Security Documents) on any of the assets delivered to it on the
Closing Date and part of the Trust Fund.
(b) The Trustee shall also notify the Depositor if a Responsible
Officer of the Trustee receives notice or obtains Actual Knowledge (i) of any
adverse claim, lien or encumbrance upon or against the Bond, the Indenture or
any Mortgage by or in favor of any Person other than the Trustee or the
Indenture Trustee, (ii) that the Bond is overdue or has been dishonored and
(iii) of any defense against the Bond, the Indenture or any other Indebtedness.
SECTION 2.03 REPRESENTATIONS AND WARRANTIES OF THE Depositor. The
Depositor hereby represents and warrants to the Trustee for the benefit of the
Certificateholders that:
(i) the Depositor is a special purpose corporation, duly
organized, validly existing and in good standing under the laws of the
State of Delaware, with full power and authority to own its property, to
carry on its business as presently conducted, to enter into and perform
its obligations under this Agreement, and to create the trust pursuant
hereto;
(ii) the execution, delivery and performance of this Agreement
by the Depositor have been duly authorized by all necessary action on the
part of the Depositor; neither the execution, delivery and performance of
this Agreement, nor the consummation of the transactions herein
contemplated, nor the compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under (A) any or
the provisions of any law, governmental rule, regulation, judgment, decree
or order binding on the Depositor or its properties; (B) the certificate
of incorporation or bylaws of the Depositor; or (C) the terms of any
indenture or other agreement or instrument to which the Depositor is a
party or by which it is bound; neither the Depositor nor any of its
Affiliates is a party to, bound by, or in breach of or in violation of any
indenture or other agreement or instrument, or subject to or in violation
of any statute, order or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over it,
which materially and adversely affects or to the best knowledge of the
Depositor may in the future materially and adversely affect (X) the
ability of the Depositor to perform its obligations under this Agreement
or (Y) the business, operations, financial condition, properties or assets
of the Depositor;
(iii) the execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof;
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(iv) this Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a valid and binding obligation of the
Depositor enforceable against it in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium or other similar laws relating to or affecting
the rights of creditors generally, and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in
equity or at law);
(v) there are no actions, suits or proceedings pending or, to
the best of the Depositor's knowledge, threatened or likely to be asserted
against or affecting the Depositor, before or by any court, administrative
agency, arbitrator or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to any
other matter which in the judgment of the Depositor may be determined
adversely to the Depositor and will, if determined adversely to the
Depositor, materially and adversely affect it or its business, assets,
operations or condition, financial or otherwise, or materially and
adversely affect its ability to perform its obligations under this
Agreement;
(vi) the Depositor is not in default with respect to any order
or decree of any court or any order, regulation or demand of any federal,
state, municipal or governmental agency, which default might have
consequences that would materially and adversely affect the condition
(financial or otherwise) or operations of the Depositor or its properties
or might have consequences that would materially and adversely affect its
performance hereunder; and
(vii) other than the actions taken pursuant to this Agreement,
the Depositor has taken no action to impair or encumber the title to the
Bond or to subject it to any offsets, defenses or counterclaims during the
Depositor's ownership thereof.
The representations and warranties of the Depositor set forth in
this SECTION 2.03 shall be continuing and shall survive the transfer and
assignment of the Bond and the Trust Fund to the Trustee.
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ARTICLE III
PAYMENTS AND STATEMENTS TO CERTIFICATEHOLDERS
SECTION 3.01 DISTRIBUTIONS.
(a) Except as otherwise provided in SECTIONS 3.01(b) and 3.01(c),
the Trustee shall make distributions to the Certificateholders on each
Distribution Date of all amounts received by the Trustee from the Issuer or the
Indenture Trustee or otherwise in respect of Monthly Payments or Advances
thereon.
(b) Except as otherwise provided in SECTION 3.01(c), on any
Distribution Date following any Unscheduled Payment made within the Interest
Accrual Period preceding such Distribution Date, the Trustee shall make
distributions to the Certificateholders on each such Distribution Date of all
amounts received by the Trustee from the Issuer or the Indenture Trustee or
otherwise in respect of such Unscheduled Payment.
(c) On the Final Certificate Distribution Date or any Distribution
Date on or following the Bond Maturity Date, the Trustee shall make distribution
to the Certificateholders on each such Distribution Date of all amounts received
by the Trustee from the Issuer or the Indenture Trustee or otherwise in respect
of principal on the Bond.
(d) Distributions on the Certificates shall be made PRO RATA among
all Holders of Certificates based on each such Holder's Percentage Interest.
(e) Distributions on each Distribution Date shall be made to each
Certificateholder of record on the related Record Date (other than as provided
in ARTICLE VIII respecting the final distribution), by check mailed to such
Certificateholder at the address appearing in the Certificate Register, or upon
written request by a Certificateholder delivered at least five Business Days
prior to the related Record Date (in each case with appropriate wiring
instructions accompanying such request) or if the Certificates are held by the
Depository as described in SECTION 4.04, as instructed by the Depository, by
wire transfer in immediately available funds to a bank account maintained in the
United States, or by such other means of payment as the Depository and the
Trustee or the Paying Agent shall agree upon.
SECTION 3.02 STATEMENTS TO CERTIFICATEHOLDERS. The Trustee shall
prepare, or cause to be prepared, and mail not later than each Distribution Date
to the Depositor, the Underwriter, each Rating Agency and each Certificateholder
a statement in respect of such Distribution Date setting forth the amount of the
distribution allocable to interest on the Bond (separately identifying interest
paid at the Maturity Interest Rate) and the amount of the distribution allocable
to principal on the Bond (separately identifying amounts allocable to
Unscheduled Payments).
Within 30 days following the end of each calendar year, the Trustee
shall prepare, or cause to be prepared, and mail to each Person who at any time
during the calendar
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year was a Certificateholder (i) a statement of the amount of distribution
allocable to interest on the Bond and the amount of distribution allocable to
principal on the Bond for such calendar year or applicable portion thereof
during which such person was a Certificateholder, and (ii) such other customary
information which is in the possession of the Trustee and the Trustee deems, and
which any Certificateholder requests from the Trustee as, necessary or desirable
for Certificateholders to prepare their federal, state and local tax returns.
Such obligation of the Trustee shall be deemed to have been satisfied to the
extent that substantially comparable information shall be provided by the
Trustee pursuant to any requirements of the Code.
SECTION 3.03 REPORTS BY THE DEPOSITOR. The Depositor covenants to
furnish to the Trustee, on or before April 30 of each calendar year commencing
1999, a certificate from a Responsible Officer of the Depositor as to his or her
knowledge of the Depositor's compliance with all conditions and covenants under
this Agreement. For purposes of this SECTION 3.03 such compliance shall be
determined without regard to any period of grace or requirement of notice
provided under this Agreement.
ARTICLE IV
THE CERTIFICATES
SECTION 4.01 DESIGNATION, AMOUNT AND ISSUE OF CERTIFICATES. The
Certificates shall be designated as the "Commercial Mortgage Pass-Through
Certificates, Series 1998-1" of the Trust. The Certificates will be limited to
$150,000,000 in aggregate principal amount, except as provided in Section 4.07.
SECTION 4.02 AUTHENTICATION AND DELIVERY OF CERTIFICATES. Upon the
execution and delivery of this Agreement, and from time to time thereafter, the
Certificates shall be executed by the Depositor and such Certificates shall
thereupon be delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Certificates upon a Depositor Order.
SECTION 4.03 FORM OF CERTIFICATES AND TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Certificates and the Trustee's certificate of authentication
to be borne by the Certificates shall be substantially of the tenor and purport
as in Exhibit A to this Agreement recited, in temporary or definitive form, and
may have such letters, numbers or other marks of identification or designation
and such legends or endorsements as the Depositor may deem appropriate and as
are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the
Certificates may be listed, or to conform to usage.
SECTION 4.04 DENOMINATION AND DATE OF CERTIFICATES; PAYMENT OF
PRINCIPAL AND INTEREST; GLOBAL CERTIFICATES. (a) The Certificates shall be
issuable in registered form.
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(b) The Certificates shall be issuable in denominations of $100,000
and such greater denominations as are whole multiples of $1,000. Each
Certificate shall be dated the Issue Date and shall be entitled to distributions
in respect of payments on the Bond from and after the most recent Due Date on
which payment has been made or, if no payment has been made, from and after the
Issue Date.
(c) The Person in whose name any Certificate is registered at 5:00
p.m. New York City time five Business Days preceding any Distribution Date for
such Certificate (the "RECORD DATE") shall be entitled to receive the
distribution payable on such Distribution Date.
(d) The final distribution on the Certificates shall be payable upon
surrender of the Certificates at the office or agency of the Trustee designated
for that purpose, as provided in SECTION 8.01.
(e) The Certificates shall be issued as one or more Global
Certificates registered in the name of a nominee designated by the Depository,
and Beneficial Owners shall hold interests in the Global Certificates through
the book-entry facilities of the Depository in denominations of $100,000 and
such greater denominations as are whole multiples of $1,000. The Global
Certificates shall in all respects be entitled to the same benefits under this
Agreement as any Individual Certificates authenticated and delivered hereunder.
(f) The Depositor, the Trustee and any paying agent may for all
purposes (including the making of payments due on the Global Certificates and
the giving of notice to Holders thereof) deal with the Depository as the
authorized representative of the Beneficial Owners with respect to the Global
Certificates for the purposes of exercising the rights of Certificateholders
hereunder. The rights of Beneficial Owners with respect to Global Certificates
shall be limited to those established by law and agreements among such
Beneficial Owners and the Depository and Depository Participants. Except in the
limited circumstances described below, Beneficial Owners of Global Certificates
shall not be entitled to physical certificates for the Global Certificates as to
which they are the Beneficial Owners. Requests and directions from, and votes
of, the Depository as Holder of the Global Certificates shall not be deemed
inconsistent if they are made with respect to different Beneficial Owners.
(g) The Certificate Registrar may establish a reasonable record date
in connection with solicitations of consents from or voting by
Certificateholders and give notice to the Depository of such record date.
Without the written consent of the Depositor and the Certificate Registrar, no
Global Certificate may be transferred by the Depository except to a successor
Depository that agrees to hold the Global Certificates for the account of the
Beneficial Owners.
(h) The Global Certificates (i) shall be delivered by the Trustee to
the Depository and shall be registered in the name of Cede & Co. and (ii) shall
bear legends substantially to the following effect:
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"Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Certificate Registrar 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.
"EACH TRANSFEREE OF A BENEFICIAL INTEREST IN THIS CERTIFICATE SHALL
BE DEEMED TO REPRESENT EITHER (A) THAT IT IS NOT, AND IS NOT USING THE ASSETS
OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT PLAN OR ARRANGEMENT SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME CERTIFICATE ACT OF 1974, AS AMENDED
("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE
"CODE"), OR (B) THAT IT HAS DETERMINED THAT, ASSUMING THIS CERTIFICATE IS
TREATED AS INDEBTEDNESS WITH NO SUBSTANTIAL EQUITY FEATURES FOR PURPOSES OF 29
C.F.R. ss. 2510.3-101, THE PURCHASE AND HOLDING OF A BENEFICIAL INTEREST IN THIS
CERTIFICATE BY THE TRANSFEREE WOULD NOT CONSTITUTE OR RESULT IN A NON-EXEMPT
PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE
BECAUSE THE RELEVANT CONDITIONS FOR EXEMPTIVE RELIEF UNDER ONE OR MORE OF THE
FOLLOWING PROHIBITED TRANSACTION CLASS EXEMPTIONS HAVE BEEN SATISFIED:
PROHIBITED TRANSACTION CLASS EXEMPTION ("PTCE") 96-23 (RELATING TO TRANSACTIONS
EFFECTED BY IN-HOUSE ASSET MANAGERS); PTCE 95-60 (RELATING TO CERTAIN
TRANSACTIONS INVOLVING INSURANCE COMPANY GENERAL ACCOUNTS); PTCE 91-38 (RELATING
TO INVESTMENTS BY BANK COLLECTIVE INVESTMENT FUNDS); PTCE 90-1 (RELATING TO
INVESTMENTS BY INSURANCE COMPANY POOLED SEPARATE ACCOUNTS); OR PTCE 84-14
(RELATING TO TRANSACTIONS EFFECTED BY A "QUALIFIED PROFESSIONAL ASSET
MANAGER")."
The Global Certificates may be deposited with such other Depository
as the Trustee may from time to time designate, and shall bear such legend as
may be appropriate.
If (i) the Depository advises the Depositor and the Trustee in
writing that the Depository is no longer willing, qualified or able properly to
discharge its responsibilities as Depository, and the Depositor is unable to
locate a qualified successor or (ii) after the occurrence of an Event of Default
under the Indenture, Beneficial Owners owning not less than a majority in
outstanding principal amount of the Global Certificates advise the Depository
through Depository Participants in writing that the continuation of a book-entry
system through the Depository is no longer in the best interest of the
Beneficial Owner or Owners of such Global Certificate, the Trustee shall notify
the affected Beneficial Owners through the Depository of the occurrence of such
event and the availability of Individual Certificates to such Beneficial Owner
or Owners requesting them. Upon surrender to the Trustee of Global
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Certificates by the Depository, accompanied by registration instructions from
the Depository for registration of transfer, the Trustee shall issue the
Individual Certificates. Neither the Trustee, the Certificate Registrar nor the
Depositor shall be liable for any actions taken by the Depository or its
nominee, including, without limitation, any delay in delivery of such
instructions. Upon the issuance of Individual Certificates, the Trustee, the
Certificate Registrar and the Depositor shall recognize the Holders of
Individual Certificates as Certificateholders hereunder.
If the Trustee or its agents has instituted or has been directed to
institute any judicial proceeding in a court to enforce the rights of the
Certificateholders under the Certificates, and the Trustee has been advised by
counsel that in connection with such proceeding it is necessary or appropriate
for the Trustee to obtain possession of the Certificates, the Trustee or any of
its agents may in its sole discretion determine that the Certificates
represented by the Global Certificates shall no longer be represented by such
Global Certificates. In such event, the Depositor will execute and the Trustee
will authenticate and deliver, in exchange for such Global Certificates,
Individual Certificates in an aggregate denomination equal to the aggregate
denomination of such Global Certificates.
SECTION 4.05 EXECUTION OF CERTIFICATES. Each Certificate shall be
signed in the name and on behalf of the Depositor manually or by facsimile
signature of the President or any Vice President thereof attested by the manual
or facsimile signature of the Secretary or an Assistant Secretary thereof, prior
to the authentication of the Certificate, and the delivery of such Certificate
by the Trustee upon an Depositor Order, after the authentication thereof
hereunder, shall constitute due delivery of such Certificate on behalf of the
Depositor. In case any officer of the Depositor who shall have signed, or whose
facsimile signature appears on any of the Certificates, shall cease to be such
officer before the Certificates shall have been authenticated and delivered by
the Trustee or disposed of, such Certificate nevertheless may be authenticated
and delivered or disposed of as though the Person who signed such Certificate
had not ceased to be such officer. Any Certificate may be signed on behalf of
the Depositor by such officer as at the actual date of the execution of such
Certificate shall be the proper officer of the Depositor, although at the date
of the execution of this Agreement any such Person was not such an officer.
Only such Certificates as shall bear thereon a certificate of
authentication substantially in the form herein recited, executed by the Trustee
by manual signature of one of its authorized officers, shall be entitled to the
benefits of this Agreement or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Certificate executed by the Depositor shall
be conclusive evidence that the Certificate so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Agreement.
SECTION 4.06 EXCHANGE AND REGISTRATION OF TRANSFER OF CERTIFICATES.
The Trustee shall keep, at the office or agency to be maintained by the Trustee
for such purpose (the "CERTIFICATE REGISTRAR") at the Corporate Trust Office, a
register (the "CERTIFICATE REGISTER") in which, subject to such reasonable
regulations as it may prescribe, the Trustee
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shall provide for the registration of the Certificates and the registration of
transfers of such Certificates as in this ARTICLE IV provided; PROVIDED,
HOWEVER, in no event shall the Certificate Registrar be required to maintain in
the Certificate Register the names of the individual participants holding
beneficial interests in the Certificates through the Depository. Upon written
notice to any acting Certificate Registrar, the Trustee may appoint a successor
Certificate Registrar for such purposes. The Trustee may appoint one or more
co-registrars (each, a "CERTIFICATE CO-REGISTRAR") for such purposes. At all
reasonable times, any Certificate Register shall be open for inspection by the
Trustee. Upon due presentment for registration of transfer of any Certificate at
the office or agency of any Certificate Registrar or any Certificate
Co-Registrar, the Depositor shall execute, and the Trustee shall authenticate
and deliver, in the name of the transferee or transferees, one or more new
Certificates of like tenor of any authorized denominations for an aggregate
principal amount equal to the then current principal balance of the Certificate
presented for registration of transfer.
All Certificates presented for registration of transfer or for
exchange or payment, as the case may be, shall (if so required by the Depositor
or the Trustee or the Certificate Registrar or any Certificate Co-Registrar) be
duly endorsed by, or be accompanied by a written instrument or instruments of
assignment and transfer in form satisfactory to the Person imposing such
requirement duly executed by, the Holder or his or her attorney duly authorized
in writing.
No service charge shall be made for any exchange or registration of
transfer of Certificates (except the costs of mailing), but the Trustee may
require payment of a sum sufficient to cover any tax, assessment or other
governmental charge that may be imposed in connection therewith.
Upon delivery by any Certificate Registrar or Certificate
Co-Registrar of a Certificate in exchange for a Certificate surrendered to it in
accordance with the provisions of this Agreement, the Certificate so delivered
shall, for all purposes of this Agreement, be deemed to be fully registered in
the Certificate Register; PROVIDED, HOWEVER, that in making any determination as
to the identity of Persons who are Holders of Certificates, the Trustee shall be
fully protected in relying on the Certificate Register.
All Certificates issued pursuant to this SECTION 4.06 in exchange
for or upon registration of transfer of Certificates shall be the valid
obligations of the Trust, evidencing the same rights, and entitled to the same
benefits and subject to the same conditions under this Agreement, as the
Certificates surrendered for such exchange or registration of transfer.
SECTION 4.07 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. In
case any Certificate shall become mutilated, destroyed, lost or stolen, the
Depositor shall execute, and the Trustee shall authenticate and deliver, a new
Certificate or Certificates of like series and tenor, bearing a number not
contemporaneously outstanding in an aggregate principal amount equal to the
current principal balance of, and in substitution for, the Certificate so
mutilated, destroyed, lost or stolen. In every such case, the applicant for a
substitute Certificate shall, at the expense of the applicant, furnish to the
Depositor, the Trustee, the
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Certificate Registrar and any Certificate Co-Registrar such certificate or
indemnity as may be required by them to save each of them harmless. Also, in
every case of destruction, loss or theft, the applicant shall furnish to the
Depositor, the Trustee, the Certificate Registrar and any Certificate
Co-Registrar evidence to their satisfaction of the destruction, loss or theft of
such Certificate and of the ownership thereof. In every case of mutilation, the
applicant shall surrender to the Trustee the Certificate so mutilated. The
Trustee shall authenticate any such substitute Certificate and deliver the same.
Upon the issuance of any substitute Certificate, the Trustee 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 connected therewith.
If required by the Trustee or the Depositor, such applicant shall furnish an
indemnity bond sufficient in the judgment of the Depositor and the Trustee to
protect the Depositor, the Trustee, any paying agent, the Certificate Registrar
and any Certificate Co-Registrar from any loss which any of them may suffer if a
Certificate is replaced. In case any Certificate shall have become mutilated,
destroyed, lost or stolen, at maturity thereof the Trustee may pay or authorize
the payment of the same instead of issuing a substitute Certificate as permitted
by this SECTION 4.07.
Every substitute Certificate issued pursuant to the provisions of
this SECTION 4.07 by virtue of the fact that any Certificate is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Certificate shall at any time be
found by anyone, and shall be entitled to all the benefits and is subject to all
the terms and conditions of this Agreement equally and proportionately, with any
and all other Certificates duly issued and outstanding hereunder. All
Certificates shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Certificates
and shall preclude any and all other rights or remedies, notwithstanding any law
or statute now existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other Certificates without
their surrender.
SECTION 4.08 CANCELLATION OF SURRENDERED CERTIFICATES. All
Certificates surrendered for payment or for substitution or exchange or
registration of transfer hereunder shall be delivered to the Trustee for
cancellation and shall be canceled by the Trustee, and no Certificates shall be
issued in lieu thereof, except as otherwise provided in this Agreement. The
Trustee shall destroy all canceled Certificates held by it and shall deliver to
the Depositor a certificate in respect of such destruction. If the Depositor
shall acquire any of the Certificates, however, such acquisition shall not
operate as a satisfaction of the obligations represented by such Certificates
unless and until the same are delivered to the Trustee for cancellation. Any
Certificates acquired by the Depositor and delivered to the Trustee shall be
canceled by the Trustee upon receipt of written instructions from the Depositor.
SECTION 4.09 TEMPORARY CERTIFICATES. Until definitive Certificates
are ready for delivery, the Depositor may prepare and the Trustee shall
authenticate temporary Certificates. Temporary Certificates shall be
substantially in the form of definitive Certificates, but may have variations
that the Depositor considers appropriate for temporary
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Certificates. Without unreasonable delay, the Depositor shall prepare and the
Trustee shall authenticate definitive Certificates and deliver them in exchange
for temporary Certificates.
ARTICLE V
THE DEPOSITOR
SECTION 5.01 MAINTENANCE OF EXISTENCE. The Depositor shall keep in
full effect its existence and rights and good standing as a corporation under
the laws of the State of Delaware and shall be in compliance with the laws of
each applicable jurisdiction to the extent necessary to perform its duties under
this Agreement. The Depositor shall not consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with or into any
other corporation or partnership or any other Person so long as any Certificate
is outstanding.
SECTION 5.02 LIMITATION ON LIABILITY OF THE DEPOSITOR. Neither the
Depositor nor any of its respective directors, officers, employees, Affiliates
or agents shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
PROVIDED, HOWEVER, that this provision shall not protect the Depositor or any
such other Person against any breach of warranties or representations made
herein or any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or negligence in the performance of duties or by reason
of reckless disregard of obligations and duties hereunder.
SECTION 5.03 INDEMNIFICATION. The Depositor shall indemnify and hold
harmless the Trust Fund from and against any and all direct losses, claims,
damages or liabilities, to which the Trust Fund may become subject, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Prospectus relating to the Certificates, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statement therein not misleading.
ARTICLE VI
TRUSTEE TERMINATION EVENTS
SECTION 6.01 TRUSTEE TERMINATION EVENTS.
(a) "TRUSTEE TERMINATION EVENT" wherever used herein, means any one
of the following events (whatever reason for such event and whether 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) any failure by Trustee to remit to the Certificateholders
any payment required to be made or remitted by it under the terms of this
Agreement; or
(ii) any failure by the Trustee to observe or perform in any
material respect any of its other covenants or agreements contained in
this Agreement, which failure shall continue unremedied for a period of 60
days after the date on which written notice of such failure shall have
been given to the Trustee by the Depositor or Holders of Certificates
evidencing, in the aggregate, not less than 25% of the aggregate principal
amount of the Certificates; or the entry of a decree or order of a court
or agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities or
similar proceedings against the Trustee, or for the winding-up or
liquidation of the Trustee's affairs; or
(iii) the consent by the Trustee to the appointment of a
conservator or receiver or liquidator or liquidating committee in any
insolvency, readjustment of debt, marshaling of assets and liabilities,
voluntary liquidation or similar proceedings of or relating to the Trustee
or of or relating to all or substantially all of its property; or
(iv) the Trustee shall become incapable of acting or shall
cease to be eligible in accordance with the provisions of SECTION 7.06 and
shall fail to resign after written request for the Trustee's resignation
by the Depositor.
(b) If a Trustee Termination Event shall occur, the
Certificateholders and/or the Depositor shall have the right to remove the
Trustee in accordance with SECTION 7.07.
SECTION 6.02 LIMITATIONS ON SUITS BY CERTIFICATEHOLDERS. No
Certificateholder shall have any right by virtue or by availing of any provision
hereof to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to the Trustee, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy thereunder, unless: (i) such Certificateholder
previously has notified the Trustee in writing of a Trustee Termination Event
and of the continuance thereof, as provided herein; (ii) the Certificateholders
representing in the aggregate not less than 25% of the aggregate principal
amount of the Certificates have requested in writing that the Trustee institute
such actions or proceedings in its own name as trustee hereunder; (iii) such
Certificateholders have offered to the Trustee reasonable indemnity 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 action or proceedings; and (v) no
direction inconsistent with such written request has been given to the Trustee
by Holders of Certificates during such 60-day period. It is understood and
intended, and expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Certificateholders shall
have any right in any manner whatever to affect, disturb or prejudice the rights
of any other Certificateholder or to obtain or seek to obtain priority over or
preference to any other Certificateholder or to enforce any right hereunder or
under the
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Certificates, except in the manner provided herein and therein and for the
equal, ratable and common benefit of all Certificateholders. For the protection
and enforcement of the provisions of this Section, each and every
Certificateholder and the Trustee shall be entitled to such relief as can be
given at law or in equity.
SECTION 6.03 UNCONDITIONAL RIGHT OF CERTIFICATEHOLDERS TO RECEIVE
DISTRIBUTIONS AND TO INSTITUTE CERTAIN SUITS. Notwithstanding any other
provision in this in Agreement or any Certificate issued pursuant hereto, the
right of any Certificateholder to receive distributions on such Certificate
pursuant to ARTICLE III on or after the respective Distribution Dates set forth
herein, or to institute suit for the enforcement of any such distribution on or
after such respective dates as provided herein or therein shall not be impaired
or affected without the consent of such Certificateholder.
ARTICLE VII
CONCERNING THE TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE. The Trustee undertakes with respect
to the Trust Fund to perform such duties and only such duties as are
specifically set forth in this Agreement. The Depositor shall not be obligated
to monitor or supervise the performance by the Trustee of its duties hereunder.
Any permissive right of the Trustee set forth in this Agreement shall not be
construed as a duty.
Subject to SECTIONS 7.02(a) and 7.03, the Trustee, upon receipt of
all resolutions, certificates, statements, opinions, reports, documents, orders
or other instruments furnished to the Trustee that are specifically required to
be furnished pursuant to any provision of this Agreement shall examine them to
determine whether they conform to the requirements of this Agreement. If any
such instrument is found on its face not to conform to the requirements of this
Agreement in a material manner, the Trustee shall notify the Person supplying
such instrument and request that the instrument be corrected, and if the
instrument is not corrected to the Trustee's reasonable satisfaction, the
Trustee shall provide notice thereof to the Certificateholders.
Subject to SECTIONS 7.02 and SECTION 7.03, no provision of this
Agreement shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own misconduct, its
negligent failure to perform its obligations in compliance with this Agreement,
or any liability which would be imposed by reason of its willful misfeasance or
bad faith; PROVIDED, HOWEVER, that:
(a) No implied covenants or obligations shall be read into this
Agreement against the Trustee and the Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed therein,
upon any certificates, reports or opinions furnished to the Trustee and
conforming to the requirements of this Agreement which it reasonably believes in
good faith to be genuine and to have been duly executed by the proper
authorities respecting any matters arising hereunder;
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(b) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer of the Trustee, unless it
shall be proved that the Trustee or such Responsible Officer was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in accordance
with this Agreement or at the direction of Holders of Certificates evidencing,
in the aggregate, not less than 25% of the aggregate principal amount of the
Certificates, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Agreement.
None of the provisions contained in this Agreement shall in any
event require the Trustee to expend or risk its own funds or otherwise incur
personal financial or other liability in the performance of any of its duties as
Trustee hereunder or in the exercise of any of its rights or powers as Trustee
hereunder if there are reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Notwithstanding anything contained herein, the Trustee shall not
be responsible and shall have no liability in connection with the duties assumed
by the Authenticating Agent, the Certificate Registrar or any other agent
hereunder (other than in respect of the payment of fees and expenses of such
Persons), unless the Trustee is acting in any such capacity hereunder; PROVIDED,
FURTHER, that in any such capacity the Trustee shall have all of the rights,
protections and indemnities provided to it as Trustee hereunder.
SECTION 7.02 CERTAIN MATTERS AFFECTING THE TRUSTEE.
(a) Except as otherwise provided in SECTION 7.01:
(i) the Trustee may request and rely upon and shall be
protected in acting or refraining from acting upon any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond 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) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(iii) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Agreement or to institute,
conduct or defend any litigation hereunder or in relation hereto at the
request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement, unless such Certificateholders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities, including reasonable legal fees, which
may be incurred therein or thereby;
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(iv) the Trustee shall not be personally liable for any action
reasonably taken, suffered or omitted by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Agreement;
(v) the Trustee shall not be bound to ascertain or inquire as
to the performance or observance of any of the terms, conditions,
covenants or agreements herein (except as specifically required by this
Agreement) or to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or
document, unless requested in writing so to do by Holders of Certificates
evidencing, in the aggregate, not less than 25% of the aggregate principal
amount of the Certificates; PROVIDED, HOWEVER, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may
require reasonable indemnity against such costs, expenses or liabilities
as a condition to taking any such action;
(vi) 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 shall not be liable for the actions or omissions
of any such agents or attorneys selected with due care or the actions or
omissions of the Depositor; and
(vii) the Trustee shall not be required to expend its own funds
or otherwise incur any financial or other liability in the performance of
any of its duties hereunder if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such
liability is not assured to it.
(b) All rights of action under this Agreement or under any of the
Certificates, enforceable by the Trustee, may be enforced by it without the
possession of any of the Certificates, or the production thereof at the trial or
other proceeding relating thereto, and any such suit, action or proceeding
instituted by the Trustee shall be brought in its name for the benefit of all
the Holders of such Certificates, subject to the provisions of this Agreement.
SECTION 7.03 TRUSTEE NOT LIABLE FOR CERTIFICATES OR THE BOND;
INDEMNIFICATION. The recitals contained herein and in the Certificates (other
than the authentication of the Certificates) shall be taken as the statements of
the Depositor, as the case may be, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Agreement, the Certificates or the Bond or related documents
except as expressly set forth herein. The Trustee shall not be liable for any
action or failure of any action by the Depositor hereunder. The Trustee shall at
no time have any responsibility or liability for or with respect to: the
legality, validity or enforceability of the Mortgages, the other Security
Documents or the Bond, or the perfection and priority of
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any Mortgage or any other Security Document or the maintenance of any such
perfection and priority, or for or with respect to the efficacy of the Trust
Fund or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation, the
existence, condition and ownership of the Property; the legal sufficiency or
suitability for filing of any Mortgage or any of the other Security Documents;
the existence and enforceability of any hazard insurance on the Property; the
validity of the assignment of the Bond to the Trust Fund; the performance or
enforcement of the Bond; the compliance by the Depositor or representation made
by it under this Agreement or in any related document or the accuracy of any
such warranty or representation made under this Agreement or in any related
document prior to the Trustee's receipt of notice or other discovery of any
noncompliance therewith or any breach thereof; PROVIDED, HOWEVER, that the
foregoing shall not relieve the Trustee of its obligation to perform its duties
under this Agreement. Except with respect to a claim based on the failure of the
Trustee to perform its duties under this Agreement or based on the Trustee's
negligent action, negligent failure to act or willful misconduct (or such other
standard of care as may be provided herein with respect to any particular
matter), no recourse shall be had for any claim based on any provisions of this
Agreement, the Certificates or the Bond or assignment thereof against the
Trustee in its individual capacity, the Trustee shall not have any personal
obligation, liability or duty whatsoever to any Certificateholder or any other
Person with respect to any such claim, and any such claim shall be asserted
solely against the Trust Fund or any indemnitor who shall furnish indemnity as
provided in this Agreement. The Trustee shall have no responsibility for filing
any financing or continuation statements in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Securities and Exchange
Commission filing for the Trust Fund or to record this Agreement. The Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates or of the proceeds of such Certificates.
Neither the Trustee, by reason of the action or inaction of a
Responsible Officer or Officers of the Trustee, nor any of its directors,
officers, employees or agents or "control persons" (within the meaning of the
Securities Act) shall be under any liability to the Trust Fund or the
Certificateholders for any action taken or for refraining from the taking of any
action in good faith pursuant to this Agreement, or for errors in judgment;
PROVIDED, HOWEVER, that this provision shall not protect the Trustee or any such
person against any liability which would otherwise be imposed by reason of
willful misconduct, bad faith, negligence in the performance of duties or
negligent failure to act if it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts. The Trustee and any director, officer,
employee or agent or "control person" (within the meaning of the Securities Act)
of the Trustee shall be indemnified by the Trust Fund and held harmless against
any loss, liability or expense incurred in connection with or related to the
Trustee's performance of its powers and duties under this Agreement. The
indemnification provided hereunder shall survive the resignation or removal of
the Trustee and the termination of this Agreement.
SECTION 7.04 TRUSTEE MAY OWN CERTIFICATES. The Trustee in its
individual or any other capacity may become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Trustee.
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SECTION 7.05 TRUSTEE'S FEES AND EXPENSES. The Depositor shall pay or
cause to be paid to the Trustee the Trustee Fee (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) for all services rendered by the Trustee in the execution of the Trust
Fund and in the exercise and performance of any of the powers and duties
hereunder of the Trustee.
SECTION 7.06 ELIGIBILITY REQUIREMENTS FOR TRUSTEE. The Trustee
hereunder shall not be an Affiliate of the Depositor and shall at all times be a
corporation organized and doing business under the laws of any State, the United
States of America, or the District of Columbia, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $100,000,000 (or shall be a member of a bank holding system, the aggregate
combined capital and surplus of which is at least $100,000,000), and shall be
subject to supervision or examination by Federal, State, or District of Columbia
authority and which, in the case of any successor Trustee as evidenced in
writing by each Rating Agency, will not adversely affect the then current rating
of the Offered Certificates. If such corporation publishes reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
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. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in SECTION 7.07.
SECTION 7.07 RESIGNATION AND REMOVAL OF TRUSTEE.
(a) The Trustee may at any time resign and be discharged from the
trusts hereby created by (i) giving written notice of resignation to the
Depositor and the Certificate Registrar (if other than the Trustee), and each
Rating Agency and by mailing notice of resignation by first class mail, postage
prepaid, to the Certificateholders at their addresses appearing on the
Certificate Register, not less than 60 days before the date specified in such
notice when, subject to SECTION 7.08, such resignation is to take effect, and
(ii) acceptance by a successor trustee appointed by the Depositor in accordance
with SECTION 7.08 meeting the qualifications set forth in SECTION 7.06. If no
successor trustee shall have been so appointed and have accepted appointment
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.
(b) Upon the occurrence of a Trustee Termination Event which has not
been cured or waived, (i) the Depositor or the Certificateholders holding a
majority of the aggregate principal amount of the Certificates may remove the
Trustee and appoint a successor trustee by written instrument, in duplicate,
executed by a Responsible Officer of the Depositor or by such Certificateholders
(or their attorneys-in-fact duly authorized), as appropriate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or (ii) any Certificateholder who has been a bona fide
Certificateholder for at least six months may, on behalf of himself and all
others similarly situated, petition any court of
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competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee, which removal and appointment shall become effective upon acceptance of
appointment by the successor trustee as provided in SECTION 7.08. The successor
Trustee so appointed by such court shall immediately and without further act be
superseded by any successor Trustee appointed by the Certificateholders as
provided below within one year from the date of appointment by such court.
(c) Holders of Certificates evidencing, in the aggregate, not less
than a majority of the aggregate principal amount of the Certificates, may at
any time, upon the payment to the Trustee of all fees, costs and expenses
(including, without limitation, costs and expenses incurred by the Trustee in
connection with its removal and the transfer of its duties hereunder to a
successor Trustee), remove the Trustee and appoint a successor trustee by
written instrument or instruments, in triplicate, signed by such Holders or
their attorney-in-fact duly authorized, one complete set of which instrument or
instruments shall be delivered to the Depositor, one complete set to the Trustee
so removed and one complete set to the successor so appointed. Notice of any
removal of the Trustee and acceptance of appointment by the successor trustee
shall be given to each Rating Agency by the successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
SECTION 7.08.
SECTION 7.08 SUCCESSOR TRUSTEE. Any successor trustee appointed as
provided in SECTION 7.07 shall execute, acknowledge and deliver to the Depositor
and to its predecessor trustee an instrument accepting such appointment
hereunder. Thereupon the resignation or removal of the predecessor trustee shall
become effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as trustee herein. The predecessor trustee shall deliver or cause to be
delivered to the successor trustee any documents and statements held by it
hereunder, and the Depositor and the predecessor trustee shall execute and
deliver such instruments and do such other things as may reasonably be required
for more fully and certainly vesting and confirming in the successor trustee all
such rights, powers, duties, and obligations.
No successor trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of SECTION 7.06 and its appointment shall not
adversely affect the then current rating of the Certificates as evidenced in
writing by each Rating Agency.
Upon acceptance of appointment by a successor trustee as provided in
this Section, the successor trustee shall mail notice of the succession of such
trustee hereunder to all Holders of Certificates at their addresses as shown in
the Certificate Register and to each Rating Agency.
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SECTION 7.09 MERGER OR CONSOLIDATION OF TRUSTEE. Any Person into
which the Trustee may be merged or converted or with which it may be
consolidated or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person 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 Person shall be
eligible under the provisions of SECTION 7.06, without the execution or filing
of any paper or further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 7.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) At any time or times, for the purpose of meeting any legal
requirements of any jurisdiction in which any Property or any part of the assets
of the Trust may at the time be located or in which any action of the Trustee
may be required to be performed or taken, the Trustee, the Depositor or the
Holders of Certificates evidencing, in the aggregate, more than a majority of
the aggregate principal amount of the Certificates, by an instrument in writing
signed by it or them, may appoint one or more individuals or corporations to act
as separate trustee or separate trustees or co-trustees, acting jointly with the
Trustee, of all or any part of such Property, to the full extent that local law
makes it necessary for such separate trustee or separate trustees or co-trustee
acting jointly with the Trustee to act; PROVIDED, HOWEVER, that the appointment
of a co-trustee will not relieve the Trustee of any of its responsibilities
hereunder.
(b) The Trustee and, at the request of the Trustee, the Depositor
shall execute, acknowledge and deliver all such instruments as may be required
by the legal requirements of any jurisdiction or by any such separate trustee or
separate trustees or co-trustee for the purpose of more fully confirming such
title, rights or duties to such separate trustee or separate trustees or
co-trustee. Upon the acceptance in writing of such appointment by any such
separate trustee or separate trustees or co-trustee, it, he, she or they shall
be vested with such title to the Property or any part thereof, and with such
rights, powers, duties and obligations as shall be specified in the instrument
of appointment, and such rights, powers, duties and obligations shall be
conferred or imposed upon and exercised or performed by the Trustee, or the
Trustee and such separate trustee or separate trustees or co-trustees jointly
with the Trustee subject to all the terms of this Agreement, except to the
extent that under any law of any jurisdiction in which any particular act or
acts are to be performed the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations shall be exercised and performed by such separate trustee or
separate trustees or co-trustee, as the case may be. Any separate trustee or
separate trustees or co-trustee may, at any time by an instrument in writing,
constitute the Trustee its attorney-in-fact and agent with full power and
authority to do all acts and things and to exercise all discretion on its behalf
and in its, her or his name. In any case any such separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, the title to the
Property and all assets, property, rights, powers, duties and obligations and
duties of such separate trustee or co-trustee shall, so far as permitted by law,
vest in and be exercised by the Trustee, without
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the appointment of a successor to such separate trustee or co-trustee unless and
until a successor is appointed.
(c) All provisions of this Agreement which are for the benefit of
the Trustee shall extend to and apply to each separate trustee or co-trustee
appointed pursuant to the foregoing provisions of this Section 7.10.
(d) Every additional trustee and separate trustee hereunder shall,
to the extent permitted by law, be appointed and act and the Trustee shall act,
subject to the following provisions and conditions: (i) all powers, duties,
obligations and rights conferred upon the Trustee in respect of the receipt,
custody, investment and payment of moneys shall be exercised solely by the
Trustee; (ii) all other rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed and exercised or
performed by the Trustee and such additional trustee or trustees and separate
trustee or trustees jointly except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the
Trustee shall be incompetent or unqualified to perform such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Property in any such jurisdiction) shall be exercised and
performed by such additional trustee or trustees or separate trustee or
trustees; (iii) no power hereby given to, or exercisable by, any such additional
trustee or separate trustee shall be exercised hereunder by such additional
trustee or separate trustee except jointly with, or with the consent of, the
Trustee; and (iv) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder.
If at any time the Trustee shall deem it no longer necessary or
prudent in order to conform to any such law, the Trustee shall execute and
deliver all instruments and agreements necessary or proper to remove any
additional trustee or separate trustee.
(e) Any request, approval or consent in writing by Trustee to any
additional trustee or separate trustee shall be sufficient warrant to such
additional trustee or separate trustee, as the case may be, to take such action
as may be so requested, approved or consented to.
(g) Notwithstanding any other provision of this SECTION 7.10, the
powers of any additional trustee or separate trustee shall not exceed those of
the Trustee hereunder.
SECTION 7.11 APPOINTMENT OF AUTHENTICATING AGENT.
(a) At any time when any of the Certificates remain outstanding, the
Trustee may appoint an Authenticating Agent or Agents which shall be authorized
to act on behalf of the Trustee to authenticate Certificates, and Certificates
so authenticated shall be entitled to the benefits of this Agreement and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Agreement to the authentication
and delivery of Certificates 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
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Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all
times be a corporation or association organized and doing business under the
laws of the United States of America, any State thereof or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $15,000,000, authorized under such
laws to do trust business 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 to the requirements of said
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. If 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.
(b) Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Person succeeding to the corporate agency business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Person shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving at
least 30 days' advance written notice thereof to the Trustee and the Depositor.
The Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and the Depositor.
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 may appoint a
successor Authenticating Agent which shall be acceptable to the Depositor and
shall mail written notice of such appointment by first-class mail, postage
prepaid to all Certificateholders as their names and addresses appear in the
Certificate Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
ARTICLE VIII
TERMINATION
SECTION 8.01 TERMINATION.
(a) Subject to SECTION 8.02, the respective obligations and
responsibilities of the Depositor, the Trustee and each agent of either of them
(other than the indemnification obligations of the parties hereto) shall
terminate upon the last action required to be taken by the Trustee pursuant to
this Article upon the later of (i) the Final Certificate Distribution Date, (ii)
the final payment on the Bond or (iii) the liquidation of the Property;
PROVIDED, HOWEVER, that
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in no event shall the trust created hereby continue beyond the expiration of
twenty-one years from the death of the last survivor of the descendants of
Joseph P. Kennedy, the late ambassador of the United States to the Court of St.
James's, living on the date hereof.
(b) Notice of any termination, specifying the Final Distribution
Date (which shall be a date that would otherwise be a Distribution Date) upon
which the Certificateholders may surrender their Certificates to the Trustee for
payment of the final distribution and cancellation, shall be given promptly by
the Trustee by letter to Certificateholders specifying (A) the date upon which
final payment of the Certificates will be made upon presentation and surrender
of Certificates at the office or agency of the Trustee therein designated, (B)
the amount of any such final payment and (C) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made only
upon presentation and surrender of the Certificates at the office or agency of
the Trustee therein specified.
(c) Upon presentation and surrender of the Certificates, the Trustee
shall cause to be distributed to Certificateholders on the Final Distribution
Date all amounts received by the Trustee in respect of full payment of the Bond
and all obligations thereunder and under the Indenture.
(d) In the event that all of the Certificateholders required to
surrender their Certificates shall not surrender their Certificates for final
payment and cancellation on or before the Final Distribution Date with respect
to such Certificates, the Trustee shall on such date cause all funds not
distributed in final distribution to Certificateholders to be credited to the
remaining Certificateholders by depositing such funds in a separate trust
account held uninvested for the benefit of such Certificateholders who failed to
surrender their Certificates and the Trustee shall give a second written notice
to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice all the Certificates required to be surrendered
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate steps, to contact
the remaining Certificateholders concerning surrender of their Certificates, and
the cost thereof shall be paid out of the funds on deposit in such trust
account. If the remaining Certificateholders do not surrender their Certificates
for cancellation and receipt of the final distribution with respect thereto
within two years after the Final Distribution Date, the Trustee shall pay the
amount of such unclaimed final distribution to the Depositor and no other
Certificateholders shall have any further claim to such amounts. Upon the
payment by the Trustee to the Depositor of all such amounts, the Trustee shall
have no further responsibility therefor.
SECTION 8.02 TERMINATION UPON PERMITTED MERGER. .
(a) Notwithstanding any other provision of this ARTICLE VIII to the
contrary, the respective obligations and responsibilities of the Depositor, the
Trustee and each agent of either of them (other than the indemnification
obligations of the parties hereto) shall terminate
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on the Bond Distribution Date upon the last action required to be taken by the
Trustee pursuant to this Article.
(b) Promptly after receipt by the Trustee of notice from the
Indenture Trustee that the Indenture Trustee has received the "Release
Certificate" pursuant to Section 9.02(iv) of the Indenture, the Trustee shall
give notice thereof by letter to Certificateholders, specifying the date (which
shall be a date that would otherwise be a Distribution Date) upon which the
Depository shall surrender the Global Certificate to the Trustee for
cancellation and distribution of the Bonds (the "BOND DISTRIBUTION DATE").
(c) On the Bond Distribution Date, without any further act of the
Certificateholders, (i) the Trustee shall cause to be distributed to each
Certificateholder or each Beneficial Owner, as applicable, of the Certificates a
principal amount of Bonds corresponding to the principal amount of Certificates
previously held by such Certificateholders or Beneficial Owner, as the case may
be, by delivering to the Depository instructions substantially in the form of
Exhibit C hereto (the "TRUSTEE'S INSTRUCTION TO DEPOSITORY") and (ii) the
Trustee shall cancel the Global Certificates or Certificate delivered to it by
the Depository or such Certificateholder, as the case may be.
SECTION 8.03 TRUSTS IRREVOCABLE. Except as expressly provided
herein, all trusts created hereby are irrevocable.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 AMENDMENT.
(a) This Agreement may be amended from time to time by the mutual
agreement of the Depositor and the Trustee, without the consent of any of the
Certificateholders, (i) to cure any ambiguity, (ii) to correct or supplement any
provision(s) herein which may be defective or inconsistent with any other
provision(s) herein, or (iii) to make or change any other provisions with
respect to matters or questions arising under this Agreement; PROVIDED, HOWEVER,
that such action shall not adversely affect in any material respect the
interests of any Certificateholder without the consent of each Certificateholder
adversely affected thereby. Prior to entering into any amendment without the
consent of Holders pursuant to this paragraph, the Trustee shall require an
Opinion of Counsel at the expense of the Depositor to the effect that such
amendment is permitted under this paragraph.
(b) This Agreement may be amended from time to time by the Depositor
and the Trustee with the written consent of the Holders of Certificates
evidencing, in the aggregate, not less than 66 2/3% of the aggregate principal
amount of the Certificates for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Holders of the Certificates;
PROVIDED, HOWEVER, that no such amendment shall (i) reduce in any manner the
amount of, delay the timing of or change the manner in which payments received
on or with respect to the Bond are required to be distributed or adversely
affect in any material respect the interests of
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the Holders of the Certificates, without the consent of the Holders of not less
than 100% of the aggregate principal amount of Certificates, or (ii) reduce any
of the aforesaid percentage of aggregate principal amount of the Certificates,
the Holders of which are required to consent to any such amendment.
It shall not be necessary for the consent of Certificateholders
under this Section to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee may prescribe.
(c) Promptly after the execution of any amendment to this Agreement,
the Trustee shall furnish written notification of the substance of such
amendment to each Certificateholder and the Rating Agencies.
(d) The Trustee shall not consent to any amendment or modification
of this Agreement which would adversely affect the status of the Trust as a
grantor trust for federal income tax purposes.
(e) Prior to entering into any amendment of this Agreement pursuant
to this section, the Trustee may require an Opinion of Counsel at the expense of
the Depositor to the effect that such amendment is permitted hereunder.
SECTION 9.02 COUNTERPARTS.
(a) This Agreement may be executed in any number of counterparts,
each of which counterparts shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
SECTION 9.03 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 9.04 NOTICES. All demands, notices and communications to any
party hereunder shall be in writing and shall be deemed to have been duly given
when delivered to (i) in the case of the Depositor, to Mid-America Finance,
Inc., [_____________] Attention: [_____________], with a copy to
[_____________], and (ii) in the case of the Trustee, to the Corporate Trust
Office; or in each case such other address as may hereafter be furnished to the
other parties hereto in writing. Any notice required or permitted to be mailed
to a Certificateholder shall be given by first class mail, postage prepaid, at
the address of such Holder as shown in the Certificate Register. Any notice
mailed to a Certificateholder within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the addressee
receives such notice.
SECTION 9.05 NOTICES TO THE RATING AGENCY. The Trustee shall deliver
written notice of the following events to each Rating Agency, promptly following
the occurrence thereof: a material amendment to this Agreement; any Trustee
Termination Event; any change in or the termination or resignation of the
Trustee; and final payment to Certificateholders. The Depositor and Trustee also
shall furnish such other information regarding the Trust Fund as may be
reasonably requested by any Rating Agency to the extent
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such party has or can obtain such information without unreasonable effort or
expense. Notwithstanding the foregoing, the failure to deliver such notices or
copies shall not constitute a Trustee Termination Event under this Agreement.
Any confirmation of the rating by any Rating Agency required hereunder shall be
in writing.
SECTION 9.06 SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or the rights of the Holders thereof.
SECTION 9.07 LIMITATION ON RIGHTS OF CERTIFICATEHOLDERS. The death
or incapacity of any Certificateholder shall not operate to terminate this
Agreement or the Trust Fund, nor entitle such Certificateholder's legal
representative or heirs to claim an accounting or to take any action or commence
any proceeding in any court for a petition or winding up of the Trust Fund, or
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
No Certificateholder, solely by virtue of its status as a
Certificateholder, shall have any right to vote (except as provided herein) or
in any manner otherwise control the operation and management of the Trust Fund,
or the obligations of the parties hereto, nor shall anything herein set forth or
contained in the terms of the Certificates be construed so as to constitute the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third party by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No Certificateholder, solely by virtue of its status as a
Certificateholder, shall have any right by virtue or by availing itself of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Holder previously shall have given to the Trustee a written notice of a Trustee
Termination Event and of the continuance thereof, as hereinbefore provided, and
unless the Holders of Certificates aggregating not less than 25% of the
aggregate principal amount of the Certificates shall also have made written
request upon the Trustee to institute such action, suit or proceeding in the
Trustee's name hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses, and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Holders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Holder or to enforce any
right under this Agreement, except in the manner herein provided and for the
common benefit of all Certificateholders.
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For the protection and enforcement of the provisions of this Section, each and
every Certificateholder and the Trustee shall be entitled to such relief as can
be given either at law or in equity.
SECTION 9.08 CERTIFICATES NONASSESSABLE AND FULLY PAID. It is the
intention of the Depositor that Certificateholders shall not be personally
liable for obligations of the Trust Fund, that the interests in the Trust Fund
represented by the Certificates shall be nonassessable for any reason
whatsoever, and that the Certificates, upon due authentication thereof by the
Trustee pursuant to this Agreement, are and shall be deemed fully paid.
SECTION 9.09 REPRODUCTION OF DOCUMENTS. This Agreement and all
documents relating thereto, including, without limitation, (i) consents, waivers
and modifications which may hereafter be executed, (ii) documents received by
any party at the closing, and (iii) financial statements, certificates and other
information previously or hereafter furnished, may be reproduced by any
photographic, photostatic, microfilm, micro-card, miniature photographic or
other similar process. The parties agree that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding, whether or not the original is in existence and whether or not such
reproduction was made by a party in the regular course of business, and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
SECTION 9.10 NO PARTNERSHIP. Nothing herein contained shall be
deemed or construed to create a partnership or joint venture between the parties
hereto.
SECTION 9.11 ACTIONS OF CERTIFICATEHOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
agent duly appointed in writing; and except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where required, to the Depositor. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee and the Depositor, if made in the manner provided in this Section.
(b) The fact and date of the execution of any Certificateholder of
any such instrument or writing may be proved in any reasonable manner which the
Trustee deems sufficient.
(c) Any request, demand, authorization, direction, notice, consent,
waiver, or other act by a Certificateholder shall bind every Holder of every
Certificate issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, or omitted to be done,
by the Trustee or the Depositor in reliance thereon, whether or not notation of
such action is made upon such Certificate.
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(d) The Trustee may require additional proof of any matter referred
to in this Section as it shall deem reasonably necessary.
SECTION 9.12 SUCCESSORS AND ASSIGNS. The rights and obligations of
any party hereto shall not be assigned (except pursuant to SECTION 7.09 hereof)
by such party without the prior written consent of the other parties hereto.
This Agreement shall inure to the benefit of and be binding upon the Depositor,
and the Trustee and their respective permitted successors and assigns.
SECTION 9.13 OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL;
STATEMENTS TO BE CONTAINED THEREIN. Upon any application or demand by the
Depositor to the Trustee to take any action, the Depositor shall furnish to the
Trustee (i) an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Agreement relating to the proposed action have been
complied with and that the proposed action is in conformity with and required by
the terms and provisions of this Agreement, and (ii) 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
demand as to which the furnishing of such documents is specifically required in
any provision of this Agreement relating to such particular application or
demand, no additional certificate or opinion need be furnished.
Each Certificate or opinion required by this Agreement and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Agreement shall include (i) a statement that the person making such
certificate or opinion has read such covenant or condition, (ii) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinion contained in such certificate or opinion are
based, (iii) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with, and (iv) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters information with respect to which is in
the possession of the Depositor upon the certificate, statement or opinion of or
representations by one or more officers of the Depositor unless such counsel
knows that the Certificate, statement or opinion or representations with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Depositor
or of counsel thereto may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants employed by the Depositor unless such certifying Person or counsel,
as the case may be, knows that the certificate or opinion or representations
with respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
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IN WITNESS WHEREOF, the Parties hereto have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of the
day and year first above written.
MID-AMERICA FINANCE, INC.,
as Depositor
By
Name:
Title:
LASALLE NATIONAL BANK,
as Trustee
By:
Name:
Title:
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[BAKER, DONELSON, BEARMAN & CALDWELL LETTERHEAD]
January 19, 1998
Mid-America Finance, Inc.
Mid-America Capital Partners, L.P.
c/o CT Corporation Trust Company
1209 Orange Street
Wilmington, Delaware 19801
Re: Mid-America Finance, Inc.
Mid-America Capital Partners, L.P.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Mid-America Finance, Inc., a Delaware
corporation (the "Depositor") and Mid- America Capital Partners, L.P., a
Delaware limited partnership (the "Borrower"), in connection with the
preparation of a registration statement on Form S-3 (Registration No. 333-42441)
(the "Registration Statement"), which has been filed with the Securities and
Exchange Commission (the "Commission") on December 17, 1997 under the Securities
Act of 1933, as amended (the "1933 Act"), relating to the proposed issuance of
commercial mortgage pass-through certificates (the "Certificates") at the
direction of the Depositor and the proposed issuance of % Bonds, Due 2003 (the
"Bonds") of the Borrower.
As set forth in the Registration Statement, the Certificates will be
issued under and pursuant to the conditions of an agreement of trust (the "Trust
Agreement") between the Depositor and LaSalle National Bank, as trustee (the
"Trustee"). The Certificates will evidence, in the aggregate, all of the
beneficial ownership interests in the trust (the "Trust") established by the
Depositor pursuant to the Trust Agreement. The only assets of the Trust will be
the Bonds, which will be issued under and pursuant to a Restated Supplemental
Indenture (the "Indenture") dated effective as of November 21, 1997, by and
among the Borrower, Mid-America Apartments, L.P., a Tennessee limited
partnership ("MAALP") and LaSalle National Bank (the "Indenture Trustee").
In connection with the rendering of this opinion, we have examined
originals, or copies certified or otherwise identified to our satisfaction, of
such documents, corporate records and other instruments as we deemed necessary
for the purposes of this opinion, including, the Depositor's Certificate of
Incorporation and Bylaws, the Borrower's Certificate of Limited Partnership and
Agreement of Limited partnership, a form of Trust Agreement, a form of
Certificates, a form of Indenture, a form of Bonds, and the form of prospectus
contained in the Registration Statement (the "Prospectus"). In our examination,
we have assumed the following: (a) the genuineness of all signatures; (b) the
legal capacity of natural persons; (c) the authenticity of all documents
submitted to us as originals; (d) the conformity
<PAGE>
Mid-America Finance, Inc.
Mid-America Capital Partners, L.P.
January 19, 1998
Page 2
to original documents of all documents submitted to us as certified or
photostatic copies and the authenticity of the originals of such documents; and
(e) the truth, accuracy and completeness of the information, representations and
warranties contained in the records, documents, instruments and certificates
that we have reviewed. As to any facts material to the opinions expressed herein
which were not known to us, we have relied upon certificates, statements and
representations of officers and other representatives of the Depositor and the
Borrower.
Based upon the foregoing, we are of the opinion that:
1. The Trust Agreement for the Certificates has been duly and validly
authorized by all necessary action on the part of the Depositor,
and, upon due execution and delivery by the Depositor and the
Trustee, such Trust Agreement will constitute a valid and binding
agreement of the Depositor, enforceable in accordance with its
terms.
2. The Certificates have been duly authorized by all necessary action
on the part of the Depositor, and upon due execution and
authentication by the Trustee in accordance with the terms of the
Trust Agreement, and issuance and delivery against payment therefor
as contemplated in the Registration Statement, the Certificates will
be legally and validly issued, fully paid and nonassessable, and the
holders thereof will be entitled to the benefits of such Trust
Agreement.
3. The Indenture for the Bonds has been duly and validly authorized by
all necessary action on the part of the Borrower and MAALP, and,
upon due execution and delivery by the Borrower, MAALP and the
Indenture Trustee, the Indenture will constitute a valid and binding
agreement of the Borrower and MAALP, enforceable in accordance with
its terms.
4. The Bonds have been duly authorized by all necessary action on the
part of the Borrower and, upon due execution and authentication by
the Indenture Trustee in accordance with the terms of the Indenture,
and issued and delivered against payment therefor as contemplated in
the Registration Statement, the Bonds will be the legal and binding
obligations of the Borrower.
5. At such time as the Borrower merges with and into MAALP, with MAALP
as the surviving limited partnership of the merger, the Bonds will
be the legal and binding obligations of MAALP.
6. The information set forth in the Prospectus under the caption
"Certain Federal Income Tax Consequences," to the extent that it
constitutes matters of law or legal conclusions, is correct in all
material respects.
The opinions rendered above are subject to the following exceptions,
limitations and qualifications: (a) the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance or other similar laws relating to or affecting
the rights and remedies of creditors; (b) the effect of general principles of
equity, whether enforcement is considered in a proceeding in equity or law, and
the discretion of the court before which any proceeding therefor may be brought;
and (c) the unenforceability under certain circumstances under law or court
decisions of provisions providing for the indemnity of or contribution to a
party with respect to a liability where such indemnification or contribution is
contrary to public policy. The foregoing opinion 6 and the discussion contained
in the Prospectus under the caption "Certain Federal Income Tax Consequences"
represent conclusions as to the application of existing law. No assurance can be
given that the Internal Revenue Service will not assert contrary positions or
that the law (including the interpretation thereof) will not change.
<PAGE>
Mid-America Finance, Inc.
Mid-America Capital Partners, L.P.
January 19, 1998
Page 3
We express no opinion as to any laws other than the law of the State of
Tennessee and Delaware and the federal law of the United States of America, nor
do we express any opinion, either implicitly or otherwise, on any issue not
expressly addressed above. Any change in applicable law, which may change at any
time and which is subject to differing interpretation, or in the facts or
documents on which our opinion is based, or any inaccuracy in the
representations or warranties on which we have relied, may affect the validity
of the foregoing opinions. This firm undertakes no obligation to update this
opinion in the event that there is either a change in the legal authorities,
facts or documents on which this opinion is based, or an inaccuracy in any of
the representations or warranties upon which we have relied in rendering this
opinion.
We hereby consent to the filing of this opinion letter as an exhibit to
the Registration Statement, and to the use of our name under the caption "Legal
Matters" in the Prospectus. In giving such consent, we do not consider that we
are "experts", within the meaning of the term as used in the 1933 Act or the
rules and regulations of the Commission issued thereunder, with respect to any
part of the Registration Statement, including this opinion as an exhibit or
otherwise.
Baker, Donelson, Bearman & Caldwell,
a professional corporation
By:/s/ JOHN A. GOOD
John A. Good, a shareholder
EXHIBIT 10.3
FIRST AMENDMENT TO CASH COLLATERAL ACCOUNT SECURITY, PLEDGE AND ASSIGNMENT
AGREEMENT
This FIRST AMENDMENT TO CASH COLLATERAL ACCOUNT SECURITY, PLEDGE AND
ASSIGNMENT AGREEMENT (this "AMENDMENT"), dated as of January [__], 1998, among
Mid-America Capital Partners, L.P. (the "PARTNERSHIP"), Mid-America Apartments,
L.P. ("MAALP"), First Union National Bank ("ACCOUNT BANK"), Morgan Stanley
Mortgage Capital Inc. ("MORGAN STANLEY") and LaSalle National Bank, as trustee
("TRUSTEE") under the Indenture described below.
W I T N E S S E T H
WHEREAS, the Partnership has issued its First Mortgage Bridge Notes
to Morgan Stanley in the principal amount of $140,000,000 pursuant to an
Indenture dated as of November 21, 1997 (as the same may be amended,
supplemented or modified from time to time, the "INDENTURE");
WHEREAS, the obligations of the Partnership under such First
Mortgage Bridge Notes and the Indenture are secured by, among other things, a
Cash Collateral Account Security, Pledge and Assignment Agreement dated as of
November 21, 1997 among the parties hereto (the "CASH COLLATERAL AGREEMENT");
WHEREAS, the Partnership desires to issue its First Mortgage Bonds
in the maximum aggregate principal amount of $150,000,000 under the Indenture,
which First Mortgage Bonds will be secured by, among other things, the Cash
Collateral Agreement;
WHEREAS, the parties hereto desire to amend the Cash Collateral
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements
and covenants hereinafter contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Capitalized terms used but not otherwise defined herein have the
respective meanings given thereto in or pursuant to the Cash Collateral
Agreement unless otherwise expressly provided herein.
Section 1. AMENDMENT OF SECOND RECITAL OF THE CASH COLLATERAL
AGREEMENT. The second recital of the Cash Collateral Agreement is hereby amended
(a) by the deletion of the words "Secured Bridge Notes" each time such words
appear and the substitution of the words "First Mortgage Bridge Notes" therefor
and (b) by the deletion of the second parenthetical in such second recital and
the substitution therefor of the following words and punctuation: "(as the same
may be amended, supplemented or modified from time to time, the "INDENTURE")".
Section 2. AMENDMENT OF FOURTH RECITAL OF THE CASH COLLATERAL
AGREEMENT. The fourth recital of the Cash Collateral Agreement is hereby amended
by the deletion of the words "Secured Bridge Notes" therein and the substitution
of the words "First Mortgage Bridge Notes" therefor.
Section 3. AMENDMENT OF SECTION 3(H) OF THE CASH COLLATERAL
AGREEMENT. Section 3(h) of the Cash Collateral Agreement is hereby amended by
the deletion of the first sentence therein and the substitution therefor of the
following sentence: "Trustee shall give prompt written notice to Account Bank of
any Event of Default hereunder or under the Notes, the Indenture or any other
Security Document of which a Trust Officer of Trustee has actual knowledge and
of the making of any Advance by the Trustee (each, a "DEFAULT TRIGGER NOTICE")
and of any claim for indemnity under the Partnership Environmental Indemnity or
the MAALP Environmental Indemnity, in each case of which a Trust Officer of
Trustee has actual knowledge, or of any failure of the Partnership to maintain a
Debt Service Coverage Ratio of at least 1.30 to 1 as set forth in Section
4.19(b) of the Indenture (each, a "FUNDING TRIGGER NOTICE"; any such Funding
Trigger Notice and any Default Trigger Notice, a "TRIGGER NOTICE") and prompt
written notice to Account Bank of the termination of any such Event of Default,
the repayment of any such Advance, the satisfaction by the Partnership or MAALP,
as the case may be, of any such claim or the cure by the Partnership of any such
failure (each, a "TERMINATION NOTICE")."
Section 4. AMENDMENT OF SECTION 3(i) OF THE CASH COLLATERAL
AGREEMENT. Section 3(i) of the Cash Collateral Agreement is hereby amended by
the deletion of the words and figure "an amount equal to $594,700.00" therein
and the substitution of the words and figure "an amount equal to $1,189,400"
therefor.
Section 5. AMENDMENT OF SECTION 3(k) OF THE CASH COLLATERAL
AGREEMENT. Section 3(k) of the Cash Collateral Agreement is hereby amended (a)
by the deletion of the words and punctuation "During any Funding Period," from
the second sentence thereof and (b) by the addition of the words and punctuation
", to the extent available," after the words "Mortgage Escrow Account" in the
second sentence thereof.
Section 6. AMENDMENT OF SECTION 3(l) OF THE CASH COLLATERAL
AGREEMENT. Section 3(l) of the Cash Collateral Agreement is hereby amended (a)
by the deletion of the words and punctuation "During any Cash Management
Period," from the second sentence thereof and (b) by the addition of the words
and punctuation ", to the extent available," after the words "Replacement
Reserve Account" in the second sentence thereof.
Section 7. AMENDMENT OF SECTION 3(O)(4) OF THE CASH COLLATERAL
AGREEMENT. Section 3(o)(4) of the Cash Collateral Agreement is hereby amended by
the insertion of the words "from any Account" between the word "funds" and the
word "solely" therein.
Section 8. AMENDMENT OF SECTION 12(d) OF THE CASH COLLATERAL
AGREEMENT. Section 12(d) of the Cash Collateral Agreement is hereby amended to
read in its entirety as follows:
"(d) If, at any time, Account Bank shall reasonably determine that
there is any dispute between any of the parties hereto with respect to the
holding or disposition of any funds in any Accounts hereunder, or if at any time
Account Bank is unable to determine, to Account Bank's satisfaction, the proper
disposition of any funds in the Accounts or Account Bank's proper actions with
respect to its obligations hereunder, then Account Bank may suspend the
performance of any of its obligations under this Agreement until such dispute or
uncertainty shall be resolved by written instruction of Trustee (acting upon
direction of the holders of the First Mortgage Bridge Notes or the First
Mortgage Bonds as provided in the Indenture). If no written instruction of
Trustee is delivered to Account Bank or if such written instruction of Trustee
fails to resolve such dispute or uncertainty, Account Bank may, at its sole
option, (i) resign as Account Bank pursuant to Section 14 or (ii) petition (by
means of an interpleader action or any other appropriate method) any court of
competent jurisdiction in Charlotte, North Carolina, for instructions with
respect to such dispute or uncertainty, and pay into such court all funds held
by it in the Accounts for holding and disposition in accordance with the
instructions of such court. Account Bank shall have no liability to any person
with respect to any such suspension of performance, resignation as Account Bank,
reliance upon the written instructions of Trustee or disbursement into court,
specifically including any liability or claimed liability that may arise, or be
alleged to have arisen, out of or as a result of any delay in the disbursement
of funds held in the Accounts or any delay in or with respect to any other
action required or requested of Account Bank."
Section 9. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
Section 10. RATIFICATION OF CASH COLLATERAL AGREEMENT. Except as
modified and expressly amended by this Amendment, the Cash Collateral Agreement
is in all respects ratified and confirmed, and all terms, provisions and
conditions thereof shall be and remain in full force and effect.
Section 11. GOVERNING LAW. This Amendment shall be governed by
and construed and enforced in all respects in accordance with the laws of the
State in which the Accounts are located.
[NO FURTHER TEXT ON THIS PAGE]
<PAGE>
IN WITNESS WHEREOF, the Partnership, MAALP, Account Bank, Morgan
Stanley and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
MID-AMERICA CAPITAL PARTNERS, L.P.,
By: MAACP, Inc., its general partner
By
Name: Simon R.C. Wadsworth
Title: President
MID-AMERICA APARTMENTS, L.P.
By: Mid-America Apartment Communities,
Inc., its general partner
By
Name: Simon R.C. Wadsworth
Title: Executive Vice President and
CFO
MORGAN STANLEY MORTGAGE CAPITAL INC.
By _____________________________________
Name:
Title:
LASALLE NATIONAL BANK, as trustee
By ______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By ____________________________
Name:
Title:
