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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of report (date of earliest event reported):
MARCH 16, 1999
MACK-CALI REALTY, L.P.
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(Exact name of Registrant as specified in its charter)
DELAWARE
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(State or other jurisdiction of incorporation)
333-57103 22-3315804
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(Commission File No.) (I.R.S. Employer
Identification No.)
11 COMMERCE DRIVE, CRANFORD, NEW JERSEY 07016
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(Address of Principal Executive Offices) (Zip Code)
(908) 272-8000
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(Registrant's telephone number, including area code)
N/A
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(Former Name of Former Address, if Changed Since Last Report)
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ITEM 5. OTHER EVENTS
In connection with the issuance by Mack-Cali Realty, L.P. of
$300,000,000 7.00% Notes due 2004 and $300,000,000 7.25% Notes due 2009,
attached as an exhibit to this form is the document listed below:
EXHIBIT DOCUMENT
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1.1 Underwriting Agreement dated March 11, 1999, by and
among Mack-Cali Realty, L.P., Mack-Cali Realty
Corporation and the several underwriters listed on
Schedule 2 thereto.
4.1 Indenture dated as of March 16, 1999, by and among
Mack-Cali Realty, L.P., as issuer, Mack-Cali Realty
Corporation, as guarantor and Wilmington Trust Company,
as trustee.
4.2 Supplemental Indenture No. 1 dated as of March 16, 1999,
by and among Mack-Cali Realty, L.P., as issuer, and
Wilmington Trust Company, as trustee.
4.3 Form of 7.00% Note due 2004.
4.4 Form of 7.25% Note due 2009.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation,
its general partner
Date: March 18, 1999 By: /s/ ROGER W. THOMAS
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Roger W. Thomas
Executive Vice President, General Counsel
and Secretary
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EXHIBIT INDEX
EXHIBIT DOCUMENT
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1.1 Underwriting Agreement dated March 11, 1999, by and
among Mack-Cali Realty, L.P., Mack-Cali Realty
Corporation and the several underwriters listed on
Schedule 2 thereto.
4.1 Indenture dated as of March 16, 1999, by and among
Mack-Cali Realty, L.P., as issuer, Mack-Cali Realty
Corporation, as guarantor and Wilmington Trust Company,
as trustee.
4.2 Supplemental Indenture No. 1 dated as of March 16, 1999,
by and among Mack-Cali Realty, L.P., as issuer, and
Wilmington Trust Company, as trustee.
4.3 Form of 7.00% Note due 2004.
4.4 Form of 7.25% Note due 2009.
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Exhibit 1.1
MACK-CALI REALTY, L.P.
UNDERWRITING AGREEMENT
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March 11, 1999
To the Representatives named in Schedule 1 hereto of the several Underwriters
named in Schedule 2 hereto
Ladies and Gentlemen:
Each of Mack-Cali Realty, L.P., a Delaware limited partnership (the
"Operating Partnership") and Mack-Cali Realty Corporation, a Maryland
corporation qualified as a real estate investment trust and the general partner
of the Operating Partnership (the "Company") hereby confirms its agreement with
the several underwriters named in Schedule 2 hereto (the "Underwriters"), for
whom you have been duly authorized to act as representatives (in such
capacities, the "Representatives"), as set forth below. If you are the only
Underwriters, all references herein to the Representatives shall be deemed to be
to the Underwriters.
1. SECURITIES. Subject to the terms and conditions herein contained,
the Operating Partnership proposes to issue and sell to the several Underwriters
certain securities of the Operating Partnership identified in Schedule 1 hereto
(the "Securities").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. Each of the
Company and the Operating Partnership represents and warrants to, and agrees
with, each of the several Underwriters that:
(a) Each of the Operating Partnership and the Company meets
the requirements for use of Form S-3 under the Securities Act of 1933, as
amended (the "Act"). A registration statement (the file number of which is set
forth in Schedule 1 hereto) on such Form with respect to the Securities,
including a base prospectus, has been filed by the Operating Partnership and the
Company with the Securities and Exchange Commission (the "Commission") under the
Act, and one or more amendments to such registration statement may also have
been so filed. Such registration statement, as so amended, has been declared by
the Commission to be effective under the Act and no stop orders suspending the
effectiveness of such registration statement has been issued under the Act and
no proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Operating Partnership or the Company, are contemplated by the
Commission,
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and any request on the part of the Commission for additional information has
been complied with. Such registration statement, as amended at the date of this
Agreement as specified in Schedule 1 hereto, meets the requirements set forth in
Rule 415(a)(1)(x) under the Act and complies in all other material respects with
said Rule. The Operating Partnership will next file with the Commission either
(A) if the Operating Partnership relies on Rule 434 under the Act, a Term Sheet
(as hereinafter defined) relating to the Securities, that shall identify the
Preliminary Prospectus (as hereinafter defined) that it supplements and, if
required to be filed pursuant to Rules 434(c)(2) and 424(b), an Integrated
Prospectus (as hereinafter defined), in either case, containing such information
as is required or permitted by Rules 434, 430A, and 424(b) under the Act or (B)
if the Operating Partnership does not rely on Rule 434 under the Act, pursuant
to Rule 424(b) under the Act a final prospectus supplement to the base
prospectus included in such registration statement, as so amended, describing
the Securities and the offering thereof, in such form as has been provided to,
or discussed with, and approved by the Representatives as provided in section
4(a) of this Agreement. As used in this Agreement, the term "Registration
Statement" means such registration statement, as amended at the time when it was
declared effective, including (i) all financial schedules and exhibits thereto,
(ii) all documents incorporated by reference or deemed to be incorporated by
reference therein and (iii) any information omitted therefrom pursuant to Rule
430A under the Act and included in the Prospectus (as hereinafter defined) or,
if required to be filed pursuant to Rules 434(c)(2) and 424(b), in the
Integrated Prospectus; the term "Base Prospectus" means the prospectus included
in the Registration Statement; the term "Preliminary Prospectus" means any
preliminary form of the Prospectus (as defined herein) specifically relating to
the Securities, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 of the Rules and Regulations; the term
"Prospectus Supplement" means any prospectus supplement specifically relating to
the Securities, in the form first filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 under the Securities Act; the term "Prospectus"
means: (A) if the Operating Partnership relies on Rule 434 under the Act, the
Term Sheet relating to the Securities that is first filed pursuant to Rule
424(b)(7) under the Act, together with the Preliminary Prospectus identified
therein that such Term Sheet supplements; (B) if the Operating Partnership does
not rely on Rule 434 under the Act, the Preliminary Prospectus; or (C) if the
Operating Partnership does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424 under the Act, the Base
Prospectus, including, in each case, the Prospectus Supplement; "Base
Prospectus," "Prospectus," "Preliminary Prospectus" and "Prospectus Supplement"
shall include in each case the documents, if any, filed by the Operating
Partnership with the Commission pursuant to the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference therein; the term "Integrated Prospectus" means a prospectus first
filed with the Commission pursuant to Rules 434(c)(2) and 424(b) under the Act;
and the term "Term Sheet" means any abbreviated term sheet that satisfies the
requirements of Rule 434 under the Act. Any reference in this Agreement to an
"amendment" or "supplement" to any Preliminary Prospectus, the Prospectus, or
any Integrated Prospectus or an "amendment" to any registration statement
(including the
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Registration Statement) shall be deemed to include any document incorporated by
reference therein that is filed with the Commission under the Exchange Act after
the date of such Preliminary Prospectus, Prospectus, Integrated Prospectus or
registration statement, as the case may be. For purposes of the preceding
sentence, any reference to the "effective date" of an amendment to a
registration statement shall, if such amendment is effected by means of the
filing with the Commission under the Exchange Act of a document incorporated by
reference in such registration statement, be deemed to refer to the date on
which such document was so filed with the Commission; any reference herein to
the "date" of a Prospectus that includes a Term Sheet shall mean the date of
such Term Sheet.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission it (i) contained all statements
required to be stated therein in accordance with, and complied in all material
respects with the requirements of, the Act, the Exchange Act and the respective
rules and regulations of the Commission thereunder and (ii) did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective, it (i) contained or will contain
all statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus or any Term Sheet that is
a part thereof or any Integrated Prospectus or any amendment or supplement to
the Prospectus is filed with the Commission pursuant to Rule 424(b), on the date
when the Prospectus is otherwise amended or supplemented and on the Closing Date
(as hereinafter defined), each of the Prospectus and, if required to be filed
pursuant to Rules 434(c)(2) and 424(b) under the Act, the Integrated Prospectus,
as amended or supplemented at any such time, (i) contained or will contain all
statements required to be stated therein in accordance with, and complied or
will comply in all material respects with the requirements of, the Act and the
Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to (x) statements or omissions made in any Preliminary Prospectus or any
amendment or supplement thereto, the Registration Statement or any amendment
thereto, the Prospectus or, if required to be filed pursuant to Rules 434(c)(2)
and 424(b) under the Act, the Integrated Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by any Underwriter through
the Representatives specifically for use therein and (y) that part of the
Registration
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Statement which constitutes the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Trust Indenture
Act") of the Trustee (as defined in Schedule 1 hereto).
(c) The Operating Partnership has been duly organized and is
validly existing as a limited partnership in good standing under the laws of the
State of Delaware and is duly qualified to transact business and is in good
standing under the laws of all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified does not amount to a
material liability or disability to the Operating Partnership and its
subsidiaries, taken as a whole.
(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Maryland and is duly qualified to transact business and is in good standing
under the laws of all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified does not amount to a material liability or
disability to the Company and its subsidiaries, taken as a whole.
(e) Each of the subsidiaries of the Operating Partnership (the
"Subsidiaries") has been duly organized and is validly existing as a general or
limited partnership or corporation in good standing under the laws of the
jurisdiction of its organization, and is duly qualified to transact business and
is in good standing under the laws of all other jurisdictions where the
ownership or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Operating Partnership and its
subsidiaries, taken as a whole. The issued shares of capital stock of each of
the Subsidiaries that is a corporation are duly authorized, validly issued,
fully paid and nonassessable, and all of the partnership interests in each
Subsidiary that is a partnership are validly issued and fully paid. Except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus), all of such shares and interests in the Subsidiaries
owned by the Operating Partnership are owned beneficially by the Operating
Partnership or another Subsidiary free and clear of any security interests,
mortgages, pledges, grants, liens, encumbrances, equities or claims.
(f) There are no outstanding (A) securities or obligations of
the Operating Partnership or any of the Subsidiaries convertible into or
exchangeable for any capital stock of the Operating Partnership or any
Subsidiary, (B) warrants, rights or options to subscribe for or purchase from
the Company, the Operating Partnership or any Subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company, the Operating Partnership or any such Subsidiary to
issue any shares of capital stock, any such
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convertible or exchangeable securities or obligations, or any such warrants,
rights or options, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(g) The Operating Partnership, the Company and each of the
Subsidiaries has full power, corporate or other, to own or lease their
respective properties and conduct their respective businesses as described in
the Registration Statement, the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus); and the Operating Partnership and the
Company have full power, corporate or other, to enter into this Agreement and
any other agreement pursuant to which the Securities are issued as specified in
Schedule 1 to this Agreement (the "Securities Documents") and to carry out all
the terms and provisions hereof and thereof to be carried out by them.
(h) The Operating Partnership has an authorized, issued and
outstanding capitalization as set forth in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus). All of the partnership
interests of the Operating Partnership have been duly authorized and the
partnership interests of the Operating Partnership outstanding are validly
issued and fully paid.
(i) The Securities have been duly authorized, and, when such
securities are issued, authenticated and delivered pursuant to the terms of this
Agreement and the applicable Securities Documents such securities will have been
duly and validly executed, authenticated, issued and delivered and will be the
legal, valid, binding and enforceable obligations of the Operating Partnership,
subject to the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance, reorganization and similar laws relating to creditors' rights
generally and to the application of equitable principles in any proceeding,
whether at law or in equity.
(j) The securities of the Operating Partnership issuable in
exchange for or upon conversion of the Securities, if any, as specified in
Schedule 1 to this Agreement (the "Underlying Securities") have been duly
authorized and reserved, and, when such securities are issued and delivered as
contemplated by the terms of the applicable Securities Document, such securities
will be validly issued, fully paid and non-assessable.
(k) The execution and delivery of the Securities Documents has
been duly authorized by all necessary action of the Operating Partnership, and,
at the Closing Date, such agreements will have been duly executed and delivered
by the Operating Partnership, and assuming due authorization, execution and
delivery of the Securities Documents by parties other than the Operating
Partnership as specified in the applicable Securities Documents, such agreements
will constitute valid and binding instruments of the Operating Partnership
enforceable against the
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Operating Partnership in accordance with their respective terms, subject to the
effect of bankruptcy, insolvency, moratorium, fraudulent conveyance,
reorganization and similar laws relating to creditors' rights generally and to
the application of equitable principles in any proceeding, whether at law or in
equity; and the Securities Documents have been duly qualified under the Trust
Indenture Act.
(l) No holders of outstanding shares of capital stock of the
Operating Partnership or the Company are entitled as such to any preemptive or
other rights to subscribe for any of the Securities or Underlying Securities,
and no holder of securities of the Operating Partnership, the Company or any
Subsidiary has any right which has not been waived to require the Operating
Partnership to register the offer or sale of any securities owned by such holder
under the Act in the public offering contemplated by this Agreement.
(m) The Securities, Underlying Securities and the Securities
Documents conform to their description contained in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(n) The combined financial statements, schedules and selected
financial data of the Operating Partnership and the Property Partnerships (as
defined in the Registration Statement) and the consolidated financial
statements, schedules and selected financial data of the Operating Partnership
and the Company and their consolidated subsidiaries included in or incorporated
by reference in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus) fairly present the
combined financial position of the Operating Partnership and the Property
Partnerships and fairly present the consolidated financial position of the
Operating Partnership and the Company and their consolidated subsidiaries, as
the case may be, and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such combined and
consolidated financial statements and schedules have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise noted therein).
(o) The selected financial data set forth under the caption
"Selected Financial Data" in the Prospectus and any Integrated Prospectus (or,
if the Prospectus and any required Integrated Prospectus are not in existence,
the most recent Preliminary Prospectus) fairly present, on the basis stated in
the Prospectus and any Integrated Prospectus (or such Preliminary Prospectus),
the information included therein. The pro forma financial statements and other
pro forma financial information included in or incorporated therein in the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus) comply in all material respects with the applicable requirements
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of Rule 11-02 of Regulation S-X of the Commission and the pro forma adjustments
have been properly applied to the historical amounts in the compilation of such
statements and the assumptions used in the preparation thereof are, in the
opinion of the Operating Partnership and the Company, reasonable.
(p) PricewaterhouseCoopers LLP, which has certified certain
financial statements of the Operating Partnership and of the Company and
delivered its reports with respect to the audited consolidated and combined
financial statements and schedules, and any other accounting firm that has
certified financial statements and delivered its reports with respect thereto,
included or incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus (or, if the Prospectus and any required
Integrated Prospectus are not in existence, the most recent Preliminary
Prospectus), are independent public accountants as required by the Act, the
Exchange Act and the respective rules and regulations thereunder.
(q) The execution and delivery of this Agreement has been duly
authorized by the Operating Partnership and the Company and this Agreement has
been duly executed and delivered by the Operating Partnership and the Company.
(r) No legal or governmental proceedings are pending to which
the Company, the Operating Partnership or any of their respective subsidiaries
or to which the property of the Company, the Operating Partnership or any of
their respective subsidiaries is subject, that are required to be described in
the Registration Statement, the Prospectus or any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus) and are not described therein, and no such
proceedings have been threatened against the Company, the Operating Partnership
or any of their respective subsidiaries; and no contract or other document is
required to be described in the Registration Statement, the Prospectus or any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or to
be filed as an exhibit to the Registration Statement that is not described
therein or filed as required.
(s) The issuance, offering and sale of the Securities to the
Underwriters by the Operating Partnership pursuant to this Agreement and the
Securities Documents, the compliance by the Operating Partnership with the other
provisions of this Agreement, the Securities and the Securities Documents and
the consummation of the other transactions herein and therein contemplated do
not (i) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the registration statement filed with respect to the Securities (as amended)
is not effective under the Act as of the time of execution hereof, such as may
be required (and shall be obtained as provided in this Agreement) under the Act,
or (ii) conflict with
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or result in a breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the properties or assets of the Operating
Partnership, the Company or any of their respective subsidiaries pursuant to any
indenture, mortgage, deed of trust, lease or other agreement or instrument to
which the Operating Partnership, the Company or any of their respective
subsidiaries is a party or by which the Operating Partnership, the Company or
any of their respective subsidiaries or any other of their respective properties
are bound, or the Agreement of Limited Partnership, Articles of Incorporation,
By-laws or other organizational documents, as the case may be, of the Operating
Partnership, the Company or any of their respective subsidiaries, or any statute
or any judgment, decree, order, rule or regulation of any court or other
governmental authority or any arbitrator applicable to the Operating Partnership
or any of the Subsidiaries or any of their properties.
(t) Each of the Operating Partnership and the Company has not,
directly or indirectly, (i) taken any action designed to cause or to result in,
or that has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Operating
Partnership to facilitate the sale or resale of the Securities or (ii) since the
filing of the Registration Statement (A) sold, bid for, purchased, or paid
anyone any compensation for soliciting purchases of, the Securities or (B) paid
or agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Operating Partnership.
(u) Subsequent to the respective dates as of which information
is given in the Registration Statement, the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus), (1) neither the Operating
Partnership nor any of the Subsidiaries has incurred any material liability or
obligation, direct or contingent, or entered into any material transaction,
which is not in the ordinary course of business; (2) the Operating Partnership
has not purchased any of its outstanding preferred units, common units or
warrants, nor declared, paid or otherwise made any dividend or distribution of
any kind on its partners' capital; and (3) there has not been any material
change in the partners' capital, short-term debt or long-term debt of the
Operating Partnership or the Subsidiaries, except in each case as described in
or contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(v) The Operating Partnership or the Subsidiaries have good
and indefeasible title in fee simple to all of the properties described under
the section entitled "Property Information -- Properties" of the Prospectus (the
"Properties") and marketable title to all other property owned by each of them,
in each case free and clear of any security interest, lien, mortgage, pledge,
encumbrance, equity, claim and other defect, except liens which do not
materially and adversely affect the value of such property and will not
interfere with the use made or proposed to
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be made of such property by the Operating Partnership or such Subsidiary, and
any and all real property and buildings held under lease by the Operating
Partnership or any such Subsidiary are held under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Operating Partnership or such Subsidiary, in each case except
as described in the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(w) No labor dispute with the employees of the Company or any
of its subsidiaries exists or is threatened or imminent that could result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company and its
subsidiaries, taken as a whole, except as described in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(x) The Operating Partnership, the Company and their
subsidiaries own or possess, or can acquire on reasonable terms, all material
patents, trademarks, service marks, trade names, licenses, copyrights and
proprietary and other confidential information currently employed by them in
connection with their respective businesses, and none of the Operating
Partnership, the Company nor any of their subsidiaries has received any notice
of infringement of or conflict with asserted rights of any third party with
respect to the foregoing which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Operating Partnership and the Subsidiaries,
taken as a whole, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(y) The Operating Partnership and each of the Subsidiaries is
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which they will be engaged; neither the Operating Partnership nor any of the
Subsidiaries has been refused any insurance coverage sought or applied for; and
neither the Operating Partnership nor any of the Subsidiaries has any reason to
believe that any of them will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost that
would not have material adverse effect on the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
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(z) None of the Subsidiaries is currently prohibited, directly
or indirectly, from paying any dividends to the Operating Partnership, from
making any other distribution on such subsidiary's capital stock or other equity
interest, from repaying to the Operating Partnership any loans or advances to
such Subsidiary from the Operating Partnership or from transferring any of such
Subsidiary's property or assets to the Operating Partnership or any of the other
Subsidiaries, except as described in the Prospectus and any Integrated
Prospectus (or, if the Prospectus and any required Integrated Prospectus are not
in existence, the most recent Preliminary Prospectus).
(aa) The Operating Partnership and each of the Subsidiaries
has complied with all laws, regulations and orders applicable to it or its
respective business and properties except where the failure to so comply would
not result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole; the Operating
Partnership and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, municipal or foreign
regulatory authorities necessary to conduct their respective businesses except
where the failure to possess the same would not result in a material adverse
change in the condition (financial or otherwise), business prospects, net worth
or results of operations of the Operating Partnership and the Subsidiaries,
taken as a whole; and neither the Operating Partnership nor any of the
Subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a material adverse change in the condition (financial
or otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, except as
described in the Prospectus and any Integrated Prospectus (or, if the Prospectus
and any required Integrated Prospectus are not in existence, the most recent
Preliminary Prospectus).
(bb) The Operating Partnership will conduct its operations in
a manner that will not subject it to registration as an investment Operating
Partnership under the Investment Company Act of 1940, as amended, and the
transactions contemplated by this Agreement will not cause the Operating
Partnership to become an investment company subject to registration under such
Act.
(ab) The Operating Partnership, the Company and each of their
subsidiaries has filed all foreign, federal, state and local tax returns that
are required to be filed or have requested extensions thereof (except in any
case in which the failure so to file would not have a material adverse effect on
the condition (financial or otherwise), business prospects, net worth or results
of operations of the Operating Partnership and the Subsidiaries, taken as a
whole) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of the
foregoing is due and payable, except for any such assessment, fine or penalty
that is
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currently being contested in good faith or as described in the Prospectus and
any Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
(ac) The Company is organized in conformity with the
requirements for qualification as a real estate investment trust (a "REIT")
under the Internal Revenue Code of 1986, as amended (the "Code"), and the
present and contemplated method of operation of the Company and its subsidiaries
does and will enable the Company to meet the requirements for taxation as a REIT
under the Code.
(ad) None of the Operating Partnership, the Company nor any of
their subsidiaries is in violation of any federal or state law or regulation
relating to occupational safety and health and the Operating Partnership, the
Company and their subsidiaries have received all permits, licenses or other
approvals required of them under applicable federal and state occupational
safety and health and environmental laws and regulations to conduct their
respective businesses, and the Operating Partnership, the Company and each of
their subsidiaries is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
which would not, singly or in the aggregate result in a material adverse change
in the condition (financial or otherwise), business prospects, net worth or
results of operations of the Operating Partnership and the Subsidiaries, taken
as a whole, except as described in the Prospectus and any Integrated Prospectus
(or, if the Prospectus and any required Integrated Prospectus are not in
existence, the most recent Preliminary Prospectus).
(ae) Except for the shares of capital stock of each of the
Subsidiaries owned by the Operating Partnership or another Subsidiary, neither
the Operating Partnership nor any of the Subsidiaries owns any shares of stock
or any other equity securities of any corporation or has any equity interest in
any firm, partnership, association or other entity, except as described in or
contemplated by the Prospectus and any Integrated Prospectus (or, if the
Prospectus and any required Integrated Prospectus are not in existence, the most
recent Preliminary Prospectus).
(af) The Operating Partnership and the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (3) access
to assets is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(ag) Neither the Operating Partnership nor any of the
Subsidiaries is in violation of any term or provision of its Certificate of
Formation, Articles of Incorporation, By-laws, partnership agreements or other
organizational documents, as the case may be; no default exists, and no event
has occurred which, with notice or lapse of time or both, would constitute a
default, and the consummation of the transactions by this Agreement and under
the Securities Documents will not result in any default in the due performance
and observance of any term, covenant or condition of any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Operating
Partnership or any Subsidiary is a party or by which the Operating Partnership,
the Subsidiaries or the Properties or any of their respective other properties
is bound or may be affected except such as would not result in any material
adverse effect in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole.
(ah) If required as set forth in Schedule 1 hereto, the
Securities and any Underlying Securities have been approved for listing on the
New York Stock Exchange, subject to official notice of issuance.
(ai) (A) None of the Operating Partnership, the Company nor
any Subsidiary knows of any violation of any municipal, state or federal law,
rule or regulation (including those pertaining to environmental matters)
concerning the Properties or any part thereof which would have a material
adverse effect in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole; (B) each of the Properties complies with all
applicable zoning laws, ordinances, regulations and deed restrictions or other
covenants in all material respects and, if and to the extent there is a failure
to comply, such failure does not materially impair the value of any of the
Properties and will not result in a forfeiture or reversion of title; (C) none
of the Operating Partnership, the Company nor any Subsidiary has received from
any governmental authority any written notice of any condemnation of or zoning
change affecting the Properties or any part thereof, and none of the Operating
Partnership, the Company nor any Subsidiary knows of any such condemnation or
zoning change which is threatened and which if consummated would have a material
adverse effect in the condition (financial or otherwise), business prospects,
net worth or results of operations of the Operating Partnership and the
Subsidiaries, taken as a whole; (D) all liens, charges, encumbrances, claims, or
restrictions on or affecting the properties and assets (including the
Properties) of the Operating Partnership or any of the Subsidiaries that are
required to be described in the Prospectus and any Integrated Prospectus (or, if
the Prospectus and any required Integrated Prospectus are not in existence, the
most recent Preliminary Prospectus) are disclosed therein; (E) no lessee of any
portion of any of the Properties is in default under any of the leases governing
such properties and there is no event which, but for the passage of time or the
giving of notice or both would constitute a default under any of such leases,
except such defaults that would not have a material adverse effect in the
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condition (financial or otherwise), business prospects, net worth or results of
operations of the Operating Partnership and the Subsidiaries, taken as a whole;
and (F) no tenant under any lease pursuant to which the Operating Partnership or
any of the Subsidiaries leases the Properties has an option or right of first
refusal to purchase the premises leased thereunder or the building of which such
premises are a part, except as such options or rights of first refusal which, if
exercised, would not have a material adverse effect in the condition (financial
or otherwise), business prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, and except as
provided by law.
(aj) Except as otherwise disclosed in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or in
the Phase I Environmental Audits previously delivered to the Representatives
(the "Audits"), (i) none of the Operating Partnership, the Company, any of the
Subsidiaries nor, to the best knowledge of the Operating Partnership and the
Company, any other owners of the property at any time or any other party has at
any time, handled, stored, treated, transported, manufactured, spilled, leaked,
or discharged, dumped, transferred or otherwise disposed of or dealt with,
Hazardous Materials (as hereinafter defined) on, to or from the Properties,
other than by any such action taken in compliance with all applicable
Environmental Statutes or by the Operating Partnership, the Company, any of the
Subsidiaries or any other party in connection with the ordinary use of
residential, retail or commercial properties owned by the Operating Partnership;
(ii) the Operating Partnership and the Company do not intend to use the
Properties or any subsequently acquired properties for the purpose of handling,
storing, treating, transporting, manufacturing, spilling, leaking, discharging,
dumping, transferring or otherwise disposing of or dealing with Hazardous
Materials other than by any such action taken in compliance with all applicable
Environmental Statues or by the Operating Partnership, the Company, any of the
Subsidiaries or any other party in connection with the ordinary use of
residential, retail or commercial properties owned by the Operating Partnership;
(iii) none of the Operating Partnership, the Company, nor any of the
Subsidiaries knows of any seepage, leak, discharge, release, emission, spill, or
dumping of Hazardous Materials into waters on or adjacent to the Properties or
any other real property owned or occupied by any such party, or onto lands from
which Hazardous Materials might seep, flow or drain into such waters; (iv) none
of the Operating Partnership, the Company, nor any of the Subsidiaries has
received any notice of, or has any knowledge of any occurrence or circumstance
which, with notice or passage of time or both, would give rise to a claim under
or pursuant to any federal, state or local environmental statute or regulation
or under common law, pertaining to Hazardous Materials on or originating from
any of the Properties or any assets described in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus) or any
other real property owned or occupied by any such party or arising out of the
conduct of any such party, including without limitation a claim under or
pursuant to any Environmental Statute (hereinafter
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defined); (v) neither the Properties nor any other land owned by the Operating
Partnership or any of the Subsidiaries is included or, to the best of the
Operating Partnership's knowledge, proposed for inclusion on the National
Priorities List issued pursuant to CERCLA (as hereinafter defined) by the United
States Environmental Protection Agency (the "EPA") or, to the best of the
Operating Partnership's and the Company's knowledge, proposed for inclusion on
any similar list or inventory issued pursuant to any other Environmental Statute
or issued by any other Governmental Authority (as hereinafter defined).
As used herein, "Hazardous Material" shall include, without
limitation any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, toxic substances, or related materials, asbestos
or any hazardous material as defined by any federal, state or local
environmental law, ordinance, rule or regulation including without limitation
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, 42 U.S.C. Sections 9601-9675 ("CERCLA"), the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. Sections 1801-1819, the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Sections
6901-6992K, the Emergency Planning and Community Right-to-Know Act of 1986,
42 U.S.C. Sections 11001-11050, the Toxic Substances Control Act, 15 U.S.C.
Sections 2601-2671, the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. Sections 136-136y, the Clean Air Act, 42 U.S.C. Sections 7401-7642,
the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. Sections
1251-1387, the Safe Drinking Water Act, 42 U.S.C. Sections 300f-300j-26, and
the Occupational Safety and Health Act, 29 U.S.C. Sections 651-678, as any of
the above statutes may be amended from time to time, and in the regulations
promulgated pursuant to each of the foregoing (individually, an
"Environmental Statute") or by any federal, state or local governmental
authority having or claiming jurisdiction over the properties and assets
described in the Prospectus (a "Governmental Authority").
(ak) Each certificate signed by any officer of the Operating
Partnership and delivered to the Representatives or counsel for the Underwriters
shall be deemed to be a representation and warranty by the Operating Partnership
to each Underwriter as to the matters covered thereby.
(al) The Operating Partnership and the Company has not
distributed and, prior to the later of (i) the Closing Date and (ii) the
completion of the distribution of the Securities, will not distribute any
material in connection with the offering and sale of the Securities other than
the Registration Statement or any amendment thereto, any Preliminary Prospectus,
the Prospectus or any Integrated Prospectus or any amendment or supplement
thereto, or other materials, if any, permitted by the Act.
3. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
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(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Operating Partnership agrees to issue and sell
to each of the Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase from the Operating Partnership, at the purchase
price specified in Schedule 1 hereto, the number of Securities set forth
opposite the name of such Underwriter in Schedule 2 hereto. One or more
certificates in definitive form for the Securities that the several Underwriters
have agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Representatives request upon notice to
the Operating Partnership at least 48 hours prior to the Closing Date, shall be
delivered by or on behalf of the Operating Partnership to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor to the Operating Partnership
in such funds as are specified in Schedule 1 hereto. Such delivery of and
payment for the Securities shall be made at the date, time and place identified
in Schedule 1 hereto, or at such other date, time or place as the
Representatives and the Operating Partnership may agree upon or as the
Representatives may determine pursuant to Section 8 hereof, such date and time
of delivery against payment being herein referred to as the "Closing Date". The
Operating Partnership will make such certificate or certificates for the
Securities available for checking and packaging by the Representatives at the
offices in New York, New York of the Operating Partnership's transfer agent or
registrar or warrant agent or of J.P. Morgan Securities Inc. at least 24 hours
prior to the Closing Date.
(b) It is understood that any of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
4. COVENANTS OF THE OPERATING PARTNERSHIP AND THE COMPANY. Each of
the Operating Partnership and the Company covenant and agree with each of the
Underwriters that:
(a) The Operating Partnership will file the Prospectus or any
Term Sheet that constitutes a part thereof, any Integrated Prospectus or the
Prospectus Supplement, as the case may be, and any amendment or supplement
thereto with the Commission in the manner and within the time period required by
Rules 434 and 424(b) under the Act. During any time when a prospectus relating
to the Securities is required to be delivered under the Act, the Operating
Partnership (i) will comply with all requirements imposed upon it by the Act and
the Exchange Act and the respective rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Securities in accordance with the provisions hereof and of the
Prospectus and any Integrated Prospectus, as then amended or supplemented, and
(ii) will not file
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<PAGE>
with the Commission the Prospectus, Term Sheet, any Integrated Prospectus or any
amendment or supplement thereto or any amendment to the Registration Statement
of which the Representatives shall not previously have been advised and
furnished with a copy for a reasonable period of time prior to the proposed
filing and as to which filing the Representatives shall not have given their
consent. The Operating Partnership will prepare and file with the Commission, in
accordance with the rules and regulations of the Commission, promptly upon
request by the Representatives or counsel for the Underwriters, any amendment to
the Registration Statement or amendment or supplement to the Prospectus and any
Integrated Prospectus that may be necessary or advisable in connection with the
distribution of the Securities by the several Underwriters, and will use its
best efforts to cause any such amendment to the Registration Statement to be
declared effective by the Commission as promptly as possible. The Operating
Partnership will advise the Representatives, promptly after receiving notice
thereof, of the time when any amendment to the Registration Statement has been
filed or declared effective or the Prospectus, any Integrated Prospectus or any
amendment or supplement thereto has been filed and will provide evidence
satisfactory to the Representatives of each such filing or effectiveness.
(b) The Operating Partnership will advise the Representatives,
promptly after receiving notice or obtaining knowledge thereof, of (i) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or any order
directed at any document incorporated by reference in the Registration
Statement, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto or any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto, (ii) the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, (iii) the institution,
threatening or contemplation of any proceeding for any such purpose or (iv) any
request made by the Commission for amending the Registration Statement, for
amending or supplementing any Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or for additional information. The Operating Partnership
and the Company will use their best efforts to prevent the issuance of any such
stop order and, if any such stop order is issued, to obtain the withdrawal
thereof as promptly as possible.
(c) If required by applicable law, the Operating Partnership
will arrange for the qualification of the Securities and any Underlying
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities and any Underlying Securities; PROVIDED, HOWEVER,
that in connection therewith the Operating Partnership shall not be required to
qualify as a foreign corporation or to execute a general consent to service of
process in any jurisdiction.
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(d) If at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs as a
result of which the Prospectus or any Integrated Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or if for
any other reason it is necessary at any time to amend or supplement the
Prospectus or any Integrated Prospectus to comply with the Act or Exchange Act
or the respective rules or regulations of the Commission thereunder, the
Operating Partnership will promptly notify the Representatives thereof and,
subject to Section 4(a) of this Agreement, will prepare and file with the
Commission, at the Operating Partnership's expense, an amendment to the
Registration Statement or an amendment or supplement to the Prospectus and any
Integrated Prospectus that corrects such statement or omission or effects such
compliance.
(e) The Operating Partnership will, without charge, provide
(i) to the Representatives and to counsel for the Underwriters, a conformed copy
of the registration statement originally filed with respect to the Securities
and any amendment thereto (in each case including exhibits thereto), (ii) to
each other Underwriter, a conformed copy of such registration statement and any
amendment thereto relating to the Securities (in each case without exhibits
thereto) and (iii) so long as a prospectus relating to the Securities is
required to be delivered under the Act, as many copies of each Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Operating
Partnership, not later than (A) 6:00 p.m., New York city time, on the date of
determination of the public offering price, if such determination occurred at or
prior to 10:00 AM, New York City time, on such date or (B) 12:00 Noon, New York
City time, on the business day following the date of determination of the public
offering price, if such determination occurred after 10:00 AM, New York city
time, on such date, will deliver to the Representatives, without charge, as many
copies of the Prospectus or any Integrated Prospectus and any amendment or
supplement thereto as the Representatives may reasonably request for purposes of
confirming orders that are expected to settle on the Closing Date.
(f) The Operating Partnership, as soon as practicable, will
make generally available to its securityholders and to the Representatives a
consolidated earning statement of the Operating Partnership and its subsidiaries
that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(g) The Operating Partnership will apply the net proceeds from
the sale of the Securities as set forth under "Use of Proceeds" in the
Prospectus and any Integrated Prospectus.
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(h) [Intentionally omitted].
(i) If required as set forth in Schedule 1 hereto, the
Operating Partnership will obtain the agreements described in Section 6(g)
hereof prior to the Closing Date.
(j) The Operating Partnership will not, directly or
indirectly, (i) take any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Operating
Partnership to facilitate the sale or resale of the Securities or (ii) (A) sell,
bid for, purchase, or pay anyone any compensation for soliciting purchases of
the Securities or (B) pay or agree to pay to any person any compensation for
soliciting another to purchase any other securities of the Operating
Partnership.
(k) If at any time during the 25-day period after the
Registration Statement becomes effective, any rumor, publication or event
relating to or affecting the Operating Partnership shall occur as a result of
which in your opinion the market price of the Securities has been or is likely
to be materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Prospectus or any
Integrated Prospectus), the Operating Partnership will, after written notice
from you advising the Operating Partnership to the effect set forth above,
forthwith prepare, consult with you concerning the substance of, and disseminate
a press release or other public statement, reasonably satisfactory to you,
responding to or commenting on such rumor, publication or event.
(l) If required as set forth in Schedule 1 hereto, the
Operating Partnership will cause the Securities and any Underlying Securities to
be duly authorized for listing by the New York Stock Exchange.
(m) The Company will continue to use its best efforts to meet
the requirements to qualify as a REIT under the Code.
5. EXPENSES. The Operating Partnership will pay all costs and
expenses incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 10 hereof, including all costs and
expenses incident to (i) the printing or other production of documents with
respect to the transactions, including any costs of printing the registration
statement originally filed with respect to the Securities and any amendment
thereto, any Preliminary Prospectus, the Prospectus and any Integrated
Prospectus and any amendment or supplement thereto, this Agreement, the
Securities Documents and any blue sky memoranda, (ii) all arrangements relating
to the delivery to the Underwriters of copies of the foregoing documents, (iii)
the fees and
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disbursements of counsel, accountants and any other experts or advisors retained
by the Operating Partnership and the Company, (iv) preparation, issuance and
delivery to the Underwriters of any certificates evidencing the Securities,
including the fees and expenses of the transfer agent, exchange agent or
registrar, (v) the qualification, if any, of the Securities and any Underlying
Securities under state securities and blue sky laws and real estate syndication
laws, including filing fees and fees and disbursements of counsel for the
Underwriters relating thereto and relating to the preparation of a blue sky
memoranda, (vi) the filing fees of the Commission relating to the Securities,
(vii) any listing of the Securities and Underlying Securities on the New York
Stock Exchange, (viii) any meetings with prospective investors in the Securities
arranged by the Operating Partnership (other than as shall have been
specifically approved by the Representatives to be paid for by the Underwriters)
and (ix) advertising relating to the offering of the Securities requested by the
Operating Partnership (other than as shall have been specifically approved by
the Representatives to be paid for by the Underwriters). If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 of this Agreement is not
satisfied, because this Agreement is terminated pursuant to Section 10 of this
Agreement or because of any failure, refusal or inability on the part of the
Operating Partnership or the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder other than by
reason of a default by and of the Underwriters, the Operating Partnership will
reimburse the Underwriters severally upon demand for all out-of-pocket expenses
(including counsel fees and disbursements) that shall have been incurred by them
in connection with the proposed purchase and sale of the Securities. The
Operating Partnership shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
6. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters to purchase and pay for the Securities shall be subject, in the
Representatives' sole discretion, to the accuracy of the representations and
warranties of the Operating Partnership and the Company contained herein as of
the date of this Agreement as specified in Schedule 1 hereto and as of the
Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Operating Partnership's officers made pursuant to the
provisions hereof, to the performance by the Operating Partnership and the
Company of their covenants and agreements hereunder and to the following
additional conditions:
(a) The Prospectus, any Integrated Prospectus or the
Prospectus Supplement, as the case may be, and any amendment or supplement
thereto shall have been filed with the Commission in the manner and within the
time period required by Rules 434 and 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto and no order directed at any document incorporated by
reference in the Registration Statement, the Prospectus or any Integrated
Prospectus or any amendment or
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supplement thereto shall have been issued, and no proceedings for that purpose
shall have been instituted or threatened or, to the knowledge of the Operating
Partnership, the Company or the Representatives, shall be contemplated by the
Commission; and the Operating Partnership shall have complied with any request
of the Commission for additional information (to be included in the Registration
Statement, the Prospectus or any Integrated Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated
the Closing Date, from Pryor Cashman Sherman & Flynn LLP, counsel for the
Company, to the effect that:
(i) the Operating Partnership has been duly organized
and is validly existing as a limited partnership in good standing under
the laws of the State of Delaware and is duly qualified to transact
business and is in good standing under the laws of all other jurisdictions
where the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the
Operating Partnership and the Subsidiaries, taken as a whole. Each of the
Subsidiaries has been duly organized and is validly existing as a general
or limited partnership or corporation in good standing under the laws of
the jurisdiction of its organization, and is duly qualified to transact
business and is in good standing under the laws of all other jurisdictions
where the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified does not amount to a material liability or disability to the
Operating Partnership and the Subsidiaries, taken as a whole;
(ii) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Maryland and is duly qualified to transact business and is in good
standing under the laws of all other jurisdictions where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified does not amount
to a material liability or disability to the Company and its subsidiaries,
taken as a whole.
(iii) the Operating Partnership, the Company and each of
their subsidiaries have full power, corporate or other, to own or lease
their respective properties and conduct their respective businesses as
described in the Registration Statement, the Prospectus and any Integrated
Prospectus and each of the Operating Partnership, the Company and their
subsidiaries have full power, corporate or other, to enter into this
Agreement and the Securities Documents and to carry out all the terms and
provisions hereof and thereof to be carried out by it;
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(iv) the issued shares of capital stock of each of the
Subsidiaries that is a corporation are duly authorized, validly issued,
fully paid and nonassessable, and all of the partnership interests in each
Subsidiary that is a partnership are validly issued and fully paid. Except
as described in the Registration Statement, the Prospectus and any
Integrated Prospectus, all of such shares and interests owned by the
Operating Partnership or another Subsidiary are owned beneficially by the
Operating Partnership or such Subsidiary free and clear of any security
interest, mortgage, pledge, lien, encumbrance, equity or claim;
(v) the Operating Partnership has an authorized, issued
and outstanding capitalization as set forth in the Prospectus and any
Integrated Prospectus (or, if the Prospectus and any required Integrated
Prospectus are not in existence, the most recent Preliminary Prospectus).
All of the partnership interests of the Operating Partnership are validly
issued and fully paid;
(vi) the Securities have been duly authorized and
executed and when authenticated in accordance with the terms of the
Securities Documents and delivered against payment therefor in accordance
with this Underwriting Agreement, will be the legal, valid, binding and
enforceable obligations of the Operating Partnership entitled to the
benefits provided by the Securities Documents, subject to the effect of
bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization
and similar laws relating to creditors' rights generally and to the
application of equitable principles in any proceeding, whether at law or
in equity;
(vii) the Underlying Securities have been duly
authorized and reserved, and, when such securities are issued and
delivered as contemplated by the terms of the applicable Securities
Document such securities will be validly issued, fully paid and
non-assessable;
(viii) the execution and delivery of the Securities
Documents have been duly authorized by the Operating Partnership, and the
Securities Documents have been duly executed and delivered by the
Operating Partnership, and assuming due authorization, execution and
delivery of the Securities Documents by parties other than the Operating
Partnership as specified in the applicable Securities Documents, such
agreements are valid and binding instruments of the Operating Partnership
enforceable against the Operating Partnership in accordance with their
respective terms, subject to the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance, reorganization and similar laws
relating to creditors' rights generally and to the application of
equitable principles in any proceeding, whether at law or in equity; and
the Securities Documents have been duly qualified under the Trust
Indenture Act;
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(ix) no holders of outstanding shares of capital stock
of the Operating Partnership are entitled as such to any preemptive or
other rights to subscribe for any of the Securities or Underlying
Securities, and no holder of securities of the Operating Partnership or
any Subsidiary has any right which has not been waived to require the
Operating Partnership to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by
this Agreement;
(x) the Securities and the Securities Documents conform
in all material respects to the descriptions thereof under the headings
"Description of the Notes" and "Description of Debt Securities" in the
Prospectus; and the statements set forth under the headings "Restrictions
on Ownership of Offered Securities", "Material United States Federal
Income Tax Considerations to the Company of its REIT Election", "Risk
Factors", "Certain United States Federal Income Tax Considerations to
Holders of Notes" and "Underwriting", in the Prospectus, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, provide a fair summary of such legal
matters, documents and proceedings;
(xi) the execution and delivery of this Agreement has
been duly authorized by all necessary corporate action of the Company and
the Operating Partnership and this Agreement has been duly executed and
delivered by the Company and the Operating Partnership;
(xii) (A) no legal or governmental proceedings are
pending to which the Company, the Operating Partnership, any of their
respective subsidiaries, or any of their respective directors or officers
in their capacity as such, is a party or to which the Properties or any
other property of the Company, the Operating Partnership or any of their
respective subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not described
therein, and, to the best knowledge of such counsel, no such proceedings
have been threatened against the Company, the Operating Partnership or any
of their respective subsidiaries or with respect to the Properties or any
of their respective other properties and (B) no contract or other document
is required to be described in the Registration Statement, the Prospectus
or any Integrated Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein or filed as required;
(xiii) the issuance, offering and sale of the Securities
to the Underwriters by the Operating Partnership and the Company pursuant
to this Agreement, the compliance by the Operating Partnership with the
other provisions of this Agreement, any Securities Documents and the
consummation of the other transactions herein contemplated
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do not (A) require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except such as have
been obtained and such as may be required under state securities or blue
sky laws (as to which such counsel need not opine) or (B) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the Properties or any other
properties or assets of the Operating Partnership, the Company or any of
their respective subsidiaries pursuant to any indenture, mortgage, deed of
trust, lease or other agreement or instrument to which the Operating
Partnership, the Company or any of their respective subsidiaries is a
party or by which the Operating Partnership, the Company or any of their
respective subsidiaries or the Properties or any other of their respective
properties are bound, or the Agreement of Limited Partnership, Articles of
Incorporation, By-laws or other organizational documents, as the case may
be, of the Operating Partnership, the Company or any of their respective
subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or (to the best
knowledge of such counsel) any arbitrator applicable to the Operating
Partnership, the Company or any of their respective subsidiaries or any of
the Properties;
(xiv) none of the Subsidiaries is currently
contractually prohibited, directly or indirectly, from paying any
dividends to the Operating Partnership, from making any other distribution
on such subsidiary's capital stock or other equity interests, from
repaying to the Operating Partnership any loans or advances to such
Subsidiary from the Operating Partnership or from transferring any of such
Subsidiary's property or assets to the Operating Partnership or any of the
other Subsidiaries, except as described in the Prospectus and any
Integrated Prospectus;
(xv) to the best knowledge of such counsel, the
Operating Partnership and the Subsidiaries possess all certificates,
authorizations, licenses and permits issued by the appropriate federal,
state, municipal or foreign regulatory authorities necessary to conduct
their respective businesses except for such certificates, authorizations,
licenses and permits the failure of which to possess would not be expected
to result in a material adverse change in the condition (financial or
otherwise), business, prospects, net worth or results of operations of the
Operating Partnership and the Subsidiaries, taken as a whole, and neither
the Operating Partnership nor any of the Subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization, license or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a material adverse change in the condition (financial or
otherwise), business, prospects, net worth or results of operations of the
Operating
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Partnership and the Subsidiaries, taken as a whole, except as described in
the Prospectus and any Integrated Prospectus;
(xvi) the Operating Partnership and the Company is not
subject to registration as an investment company under the Investment
Company Act of 1940, as amended, and the transactions contemplated by this
Agreement will not cause the Operating Partnership or the Company to
become an investment company subject to registration under such Act;
(xvii) none of the Operating Partnership, the Company
nor any of the Subsidiaries is in violation of any term or provision of
its articles of incorporation, bylaws, partnership agreements or other
organizational documents, as the case may be; no default exists, and no
event has occurred which, with notice or lapse of time or both, would
constitute a default, and the issuance, offering and sale of the
Securities to the Underwriters by the Operating Partnership pursuant to
this Agreement and the Securities Documents, the compliance by the
Operating Partnership and the Company with the other provisions of this
Agreement, the Securities and the Securities Documents and the
consummation of the other transactions herein and therein contemplated
will not result in any default, in the due performance and observance of
any term, covenant or condition of any indenture, mortgage or deed of
trust, or any material lease or other agreement or instrument known to
such counsel after due inquiry to which the Operating Partnership and the
Company or any of the Subsidiaries is a party or by which the Operating
Partnership and the Company, any of the Subsidiaries, any of the
Properties or any of their respective other properties is bound or may be
affected except such as would not result in any material adverse effect in
the condition (financial or otherwise), business prospects, net worth or
results of operations of the Operating Partnership and its subsidiaries,
taken as a whole;
(xviii) the Registration Statement is effective under
the Act; the Prospectus or any Term Sheet that constitutes a part thereof
and any Integrated Prospectus or the Prospectus Supplement, as the case
may be, has been filed with the Commission in the manner and within the
time period required by Rules 434 and 424(b); and no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment thereto and no order directed at any document incorporated by
reference in the Registration Statement, the Prospectus, any Integrated
Prospectus or any amendment or supplement thereto has been issued, and no
proceedings for that purpose have been instituted or, to the best
knowledge of such counsel, threatened by the Commission; and
(xix) the Registration Statement originally filed with
respect to the Securities and each amendment thereto, the Prospectus and
any Integrated Prospectus (in
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each case, including the documents incorporated by reference therein but
not including the financial statements and other financial and statistical
data contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules and
regulations of the Commission thereunder.
Such counsel shall also state that they have no reason to believe
that the Registration Statement, as of its effective date, contained any untrue
statement of a material fact or omitted to state any material fact required to
be stated therein or necessary to make the statements therein not misleading or
that the Prospectus or any Integrated Prospectus, as of the date of the
Prospectus Supplement or any required Integrated Prospectus and the date of such
opinion, included or includes any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering any such opinion, such counsel may rely, as to matters
of fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Operating Partnership and public officials and, as to matters
involving the application of laws of any jurisdiction other than the States of
New York, New Jersey and Delaware or the United States, to the extent
satisfactory in form and scope to counsel for the Underwriters, upon the opinion
of local counsel. The foregoing opinion shall also state that the Underwriters
are justified in relying upon such opinion of local counsel, and copies of such
opinion shall be delivered to the Representatives and counsel for the
Underwriters.
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (b) shall include any amendment or
supplement thereto at the date of such opinion.
(c) The Representatives shall have received an opinion, dated
the Closing Date, of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for the
Underwriters, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus, and any Integrated Prospectus and such
other related matters as the Representatives may reasonably require, and the
Operating Partnership shall have furnished to such counsel such documents as
they may reasonably request for the purpose of enabling them to pass upon such
matters.
(d) The Representatives shall have received from
PricewaterhouseCoopers LLP and each other accounting firm that has certified
financial statements, and delivered its report with respect thereto, included or
incorporated by reference in the Registration Statement, the Prospectus and any
Integrated Prospectus, a letter or letters dated, respectively, the date of this
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Agreement as specified in Schedule 1 hereto and the Closing Date, in form and
substance satisfactory to the Representatives, to the effect that:
(i) they are independent accountants with respect to the
Operating Partnership, the Company and their subsidiaries within the
meaning of the Act, the Exchange Act and the applicable published rules
and regulations thereunder;
(ii) in their opinion, the financial statements audited
by them and incorporated by reference in the Registration Statement, the
Prospectus and any Integrated Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act, the
Exchange Act and the related published rules and regulations thereunder;
(iii) a reading of the minute books of the shareholders,
the board of directors, partners and any committees thereof of the
Operating Partnership, the Company and each of their consolidated
subsidiaries, and inquiries of certain officials of the Operating
Partnership, the Company and their consolidated subsidiaries who have
responsibility for financial and accounting matters, nothing came to their
attention that caused them to believe that:
(A) (i) any unaudited consolidated condensed financial
statements of the Operating Partnership, the Company and their
consolidated subsidiaries included in the Registration
Statement, the Prospectus and any Integrated Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Act, the Exchange Act and the
related published rules and regulations thereunder, or (ii)
any material modification should be made to the unaudited
consolidated condensed financial statements for them to be in
conformity with generally accepted accounting principles;
(B) at a specific date not more than five business days
prior to the date of such letter, there were any changes in
the partners' capital or increase in mortgages and loans
payable of the Operating Partnership and its consolidated
subsidiaries, in each case compared with amounts shown on the
most recent consolidated balance sheet included in the
Registration Statement, the Prospectus and any Integrated
Prospectus, except for such changes set forth in such letter;
26
<PAGE>
(iv) they have carried out certain specified procedures,
not constituting an audit, with respect to certain amounts, percentages
and financial information that are derived from the general accounting
records of the Operating Partnership, the Company and their consolidated
subsidiaries and are included in the Registration Statement, the
Prospectus and any Integrated Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or incorporated
in the Operating Partnership's and the Company's most recent Annual Report
on Form 10-K under the captions "Business" (Item 1), "Selected Financial
Data" (Item 6) and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" (Item 7) and the information included
or incorporated in the Operating Partnership's and the Company's Quarterly
Reports on Form 10-Q under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations,"and have
compared such amounts, percentages and financial information with such
records and with information derived from such records and have found them
to be in agreement, excluding any questions of legal interpretation; and
(v) on the basis of a reading of any unaudited pro forma
consolidated condensed financial statements included in the Registration
Statement, the Prospectus and any Integrated Prospectus, carrying out
certain specified procedures that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph (v),
inquiries of certain officials of the Operating Partnership, the Company,
their consolidated subsidiaries and any acquired Company who have
responsibility for financial and accounting matters and proving the
arithmetic accuracy of the application of the pro forma adjustments to the
historical amounts in the unaudited pro forma consolidated condensed
financial statements, nothing came to their attention that caused them to
believe that the unaudited pro forma consolidated condensed financial
statements do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied
by a written explanation of the Company as to the significance thereof,
unless the Representatives deem such explanation unnecessary, and (B) such
changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed with the
purchase and delivery of the Securities as contemplated by the
Registration Statement.
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<PAGE>
References to the Registration Statement, the Prospectus and any
Integrated Prospectus in this paragraph (d) with respect to either letter
referred to above shall include any amendment or supplement thereto at the
date of such letter.
(e) The Representatives shall have received a certificate,
dated the Closing Date, of the chief executive officer or an executive vice
president and the chief financial or accounting officer of the Company, as the
general partner of the Operating Partnership, to the effect that:
(i) the representations and warranties of the Operating
Partnership and the Company in this Agreement are true and correct as if
made on and as of the Closing Date; the Registration Statement, as amended
as of the Closing Date, does not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus or any Integrated
Prospectus, as amended or supplemented as of the Closing Date, does not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
the Operating Partnership and the Company have performed all covenants and
agreements and satisfied all conditions on their part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the
Registration Statement, the Prospectus or any Integrated Prospectus or any
amendment or supplement thereto has been issued, and no proceedings for
that purpose have been instituted or threatened or, to the best of the
Operating Partnership's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement, the Prospectus and any
Integrated Prospectus, none of the Operating Partnership, the Company nor
any of their subsidiaries has sustained any material loss or interference
with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental
proceeding, and there has not been any material adverse change, or any
development involving a prospective material adverse change, in the
condition (financial or otherwise), management, business prospects, net
worth or results of operations of the Operating Partnership, the Company
or any of their subsidiaries, except in each case as described in or
contemplated by the Prospectus or any Integrated Prospectus (exclusive of
any amendment or supplement thereto).
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<PAGE>
(f) On or before the Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Operating Partnership or the Company.
(g) [Intentionally omitted].
(h) If applicable, prior to the commencement of the offering
of the Securities, the Securities and any Underlying Securities shall have been
approved for listing on the New York Stock Exchange, subject to official notice
of issuance.
(i) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have been any downgrading in the
rating of any debt securities or preferred stock of the Operating Partnership or
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities or preferred stock of the Operating Partnership or the Company
(other than an announcement with positive implications of a possible upgrading,
and no implication of a possible downgrading, of such rating).
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Operating Partnership shall furnish to the
Representatives such conformed copies of such opinions, certificates, letters
and documents in such quantities as the Representatives and counsel for the
Underwriters shall reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Operating Partnership agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
made by the Company and the Operating Partnership in Section 2 of this
Agreement,
(ii) any untrue statement or alleged untrue statement of
any material fact contained in (A) the Registration Statement or any
amendment thereto or any Preliminary Prospectus, the Prospectus or any
Integrated Prospectus or any amendment or
29
<PAGE>
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or the Operating
Partnership or based upon written information furnished by or on behalf of
the Company or the Operating Partnership filed in any jurisdiction in
order to qualify the Securities under the securities or blue sky laws
thereof or filed with the Commission or any securities association or
securities exchange (each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment
or supplement thereto, or any Application a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or
(iv) any untrue statement or alleged untrue statement of
any material fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including, without
limitation, slides, videos, films and tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Company and the
Operating Partnership will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement or any amendment thereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application in reliance upon and in conformity with
written information furnished to the Company or the Operating Partnership by
such Underwriter through the Representatives specifically for use therein. This
indemnity agreement will be in addition to any liability which the Company or
the Operating Partnership may otherwise have. The Company or the Operating
Partnership will not, without the prior written consent of the Underwriter or
Underwriters purchasing, in the aggregate, more than 50% of the Securities,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not any such Underwriter or any person who
controls any such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
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(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company and the Operating Partnership, each of
its directors, each of its officers who signed the Registration Statement, as
amended at the date of this Agreement as specified in Schedule 1 hereto, and
each person, if any, who controls the Company or the Operating Partnership
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any losses, claims, damages or liabilities to which the Company, the
Operating Partnership or any such director, officer or controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, as amended at the date of this
Agreement as specified in Schedule 1 hereto, any Preliminary Prospectus, the
Prospectus or any Integrated Prospectus or any amendment or supplement thereto,
or any Application or (ii) the omission or the alleged omission to state therein
a material fact required to be stated in the Registration Statement, as amended
at the date of this Agreement as specified in Schedule 1 hereto, any Preliminary
Prospectus, the Prospectus or any Integrated Prospectus or any amendment or
supplement thereto, or any Application or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company or the Operating Partnership by such Underwriter
through the Representatives specifically for use therein; and, subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses reasonably incurred by the Company, the
Operating Partnership or any such director, officer or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or any action in respect thereof. This indemnity agreement will be in
addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; PROVIDED, HOWEVER, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such
31
<PAGE>
indemnified party or parties shall have the right to select separate counsel to
defend such action on behalf of such indemnified party or parties. After notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof and approval by such indemnified party of counsel
appointed to defend such action, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses,
other than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this Section
7, representing the indemnified parties under such paragraph (a) who are parties
to such action or actions) or (ii) the indemnifying party does not promptly
retain counsel satisfactory to the indemnified party or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 7 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Operating
Partnership on the one hand and the Underwriters on the other shall be deemed to
be in the same proportion as the total proceeds from the offering (before
deducting expenses) received by the Company or the Operating Partnership, as the
case may be, bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Operating Partnership or
the Underwriters, the parties' relative
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intents, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances. The Operating Partnership and the Underwriters agree that
it would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions hereunder that in the aggregate exceed
the total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the J.P. Morgan Securities Inc. Master Agreement Among Underwriters. For
purposes of this paragraph (d), each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as such Underwriter, and each
director of the Company, each partner of the Operating Partnership, each officer
of the Operating Partnership or the Company who signed the Registration
Statement as amended at the date of this Agreement as specified in Schedule 1
hereto and each person, if any, who controls the Company or the Operating
Partnership within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company and the
Operating Partnership.
8. DEFAULT OF UNDERWRITERS. If one or more Underwriters default in
their obligations to purchase Securities hereunder and the aggregate number of
such Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase is ten percent or less of the aggregate number of Securities
to be purchased by all of the Underwriters at such time hereunder, the other
Underwriters may make arrangements satisfactory to the Representatives for the
purchase of such Securities by other persons (who may include one or more of the
non-defaulting Underwriters, including the Representatives), but if no such
arrangements are made by the Closing Date the other Underwriters shall be
obligated severally in proportion to their respective commitments hereunder to
purchase the Securities that such defaulting Underwriter or Underwriters agreed
but failed to purchase. If one or more Underwriters so default with respect to
an aggregate number of Securities that is more than ten percent of the aggregate
number of Securities, as the case may be, to be purchased by all of the
Underwriters at such time hereunder, and if arrangements satisfactory to the
Representatives are not made within 36 hours after such default for the purchase
by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will
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terminate without liability on the part of any non-defaulting Underwriter, the
Company or the Operating Partnership other than as provided in Section 9 hereof.
In the event of any default by one or more Underwriters as described in this
Section 8, the Representatives shall have the right to postpone the Closing
Date, established as provided in Section 3 of this Agreement for not more than
seven business days in order that any necessary changes may be made in the
arrangements or documents for the purchase and delivery of the Securities. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 8. Nothing herein shall relieve any
defaulting Underwriter from liability for its default.
9. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company and the Operating
Partnership, their officers and the several Underwriters set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (i) any
investigation made by or on behalf of the Operating Partnership, the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 7 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 5 and 7 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
10. TERMINATION. (a) This Agreement may be terminated with respect
to the Securities in the sole discretion of the Representatives by notice to the
Company and the Operating Partnership given prior to the Closing Date in the
event that the Company or the Operating Partnership shall have failed, refused
or been unable to perform all obligations and satisfy all conditions on its part
to be performed or satisfied hereunder at or prior thereto or, if at or prior to
the Closing Date:
(i) the Operating Partnership or any of the Subsidiaries
shall have, in the sole judgment of the Representatives, sustained any
material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or any
legal or governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective material
adverse change (including without limitation a change in management or
control of the Company, which includes the termination of the employment
of Thomas A. Rizk), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company, the
Operating Partnership and the Subsidiaries, except in each case as
described in or contemplated by the Prospectus (exclusive of any amendment
or supplement thereto);
34
<PAGE>
(ii) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading
in securities generally on the New York Stock Exchange shall have been
suspended or minimum or maximum prices shall have been established on such
exchange;
(iii) there shall have been any downgrading in the
rating of any debt securities or preferred stock of the Operating
Partnership or the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities or preferred
stock of the Operating Partnership or the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating);
(iv) a banking moratorium shall have been declared by
New York or United States authorities; or
(v) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in general economic, political or financial
conditions having an effect on the U.S. financial markets that, in the
sole judgment of the Representatives, makes it impractical or inadvisable
to proceed with the public offering or the delivery of the Securities as
contemplated by the Registration Statement, as amended at the date of this
Agreement as specified in Schedule 1 hereto
(b) Termination of this Agreement pursuant to this Section 10
shall be without liability of any party to any other party except as provided in
Section 9 hereof.
11. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth
under the heading "Underwriting" in the Prospectus Supplement (to the extent
such statements relate to the Underwriters) constitute the only information
furnished by any Underwriter through the Representatives to the Operating
Partnership for the purposes of Sections 2(b) and 7(b) hereof. The Underwriters
confirm that such statements (to such extent) are correct.
12. NOTICES. All communications hereunder shall be in writing and,
if sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to J.P. Morgan Securities Inc.,
60 Wall Street, New York, New York, 10260-0060, Attention: Syndicate Department;
and if sent to the Operating Partnership or the Company, shall be
35
<PAGE>
delivered or sent by mail, telex or facsimile transmission and confirmed in
writing to the Operating Partnership at 11 Commerce Drive, Cranford, New Jersey,
07016, Attention: Thomas A. Rizk.
13. SUCCESSORS. This Agreement shall inure to the benefit of and
shall be binding upon the several Underwriters, the Operating Partnership, the
Company and their respective successors and legal representatives, and nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the
sole and exclusive benefit of such persons and for the benefit of no other
person except that (i) the indemnities of the Operating Partnership and the
Company contained in Section 7 of this Agreement shall also be for the benefit
of any person or persons who control any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Underwriters contained in Section 7 of this Agreement shall also be for
the benefit of the directors of the Company, the officers of the Company who
have signed the Registration Statement as amended at the date of this Agreement
as specified in Schedule 1 hereto and any person or persons who control the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from any Underwriter shall be deemed a
successor because of such purchase.
14. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
15. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
36
<PAGE>
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company, the
Operating Partnership and each of the several Underwriters.
Very truly yours,
MACK-CALI REALTY CORPORATION
By: /s/ ROGER W. THOMAS
-----------------------------------
Name: Roger W. Thomas
Title: Executive Vice President,
General Counsel and
Secretary
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation,
as general partner
By: /s/ ROGER W. THOMAS
-----------------------------------
Name: Roger W. Thomas
Title: Executive Vice President,
General Counsel and
Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc.
Bear, Stearns & Co. Inc.
Chase Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
By: J.P. MORGAN SECURITIES, INC.
By: /s/ ROBERT POST
-----------------------------------
Name: Robert Post
Title: Managing Director
<PAGE>
SCHEDULE 1
DESCRIPTION OF SECURITIES; TERMS OF OFFERING
--------------------------------------------
1. REGISTRATION STATEMENT:
File No. 333-57103
2. DATE OF UNDERWRITING AGREEMENT:
March 11, 1999
3. REPRESENTATIVES:
J.P. Morgan Securities Inc.
Salomon Smith Barney Inc.
Bear, Stearns & Co. Inc.
Chase Securities Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
Prudential Securities Incorporated
4. TITLE OF SECURITIES:
7.00% Notes due 2004 (the "2004 Notes") and
7.25% Notes due 2009 (the "2009 Notes" and together with the 2004 Notes,
the "Securities")
5. AGGREGATE AMOUNT OF SECURITIES:
$300,000,000 of 2004 Notes and $300,000,000 of 2009 Notes
6. SECURITIES DOCUMENTS:
Indenture, to be dated as of March 16, 1999 (the "Original Indenture"),
between Mack-Cali Realty, L.P. and Wilmington Trust Company, as trustee
(the "Trustee") and the First Supplemental Indenture, to be dated as of
March 16, 1999 (the "Supplemental Indenture" and together with the
Original Indenture, the "Indenture"), between Mack-Cali Realty, L.P. and
the Trustee.
1
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7. PRICE TO PUBLIC:
99.867% of the principal amount of the 2004 Notes and 99.217% of the
principal amount of the 2009 Notes, in each case, plus accrued interest,
if any, from March 16, 1999.
8. PURCHASE PRICE BY UNDERWRITERS:
99.267% of the principal amount of the 2004 Notes and 98.567% of the
principal amount of the 2009 Notes, in each case, plus accrued interest,
if any, from March 16, 1999.
9. SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Wire transfer of same day funds
10. TERMS OF SECURITIES:
Maturity: March 15, 2004 with respect to the 2004
Notes and March 15, 2009 with respect to the
2009 Notes.
Interest Rate: 7.00% with respect to the 2004 Notes and
7.25% with respect to the 2009 Notes.
Interest Payment Dates: Semi-annually on March 15 and September 15
commencing September 15, 1999.
Option Redemption: The Notes may be redeemed at any time at the
option of the Operating Partnership, in
whole or in part, at a redemption price
equal to the sum of (i) the principal amount
of the Notes being redeemed plus accrued
interest thereon to the redemption date and
(ii) the Make-Whole Amount (as defined in
the Indenture), if any, with respect to such
Notes.
Sinking Fund: N/A
11. LOCK-UP REQUIREMENTS:
N/A
2
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12. DELIVERY OF SECURITIES:
J.P. Morgan Securities Inc., 60 Wall Street, New York, New York,
10260-0060 on or about March 16, 1999.
13. PRE-CLOSING LOCATION:
Pryor Cashman Sherman & Flynn LLP, 410 Park Avenue, New York, New York on
March 15, 1999
14. CLOSING LOCATION:
Pryor Cashman Sherman & Flynn LLP, 410 Park Avenue, New York, New York on
March 16, 1999
15. STOCK EXCHANGE LISTING
The Notes will not be listed on any national securities exchange.
16. UNDERLYING SECURITIES
N/A
17. MISCELLANEOUS:
3
<PAGE>
SCHEDULE 2
UNDERWRITERS
<TABLE>
<CAPTION>
Principal Amount Principal Amount
Underwriters of 2004 Notes of 2009 Notes
- ------------ ------------- -------------
<S> <C> <C>
J.P. Morgan Securities Inc........................... $ 97,500,000 $ 97,500,000
Salomon Smith Barney Inc............................. 97,500,000 97,500,00
Bear, Stearns & Co. Inc.............................. 15,000,000 15,000,000
Chase Securities Inc................................. 15,000,000 15,000,000
Donaldson, Lufkin & Jenrette Securities Corporation.. 15,000,000 15,000,000
Goldman, Sachs & Co.................................. 15,000,000 15,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated... 15,000,000 15,000,000
Morgan Stanley & Co. Incorporated.................... 15,000,000 15,000,000
Prudential Securities Incorporated................... 15,000,000 15,000,000
============ ============
Total................................................ $300,000,000 $300,000,000
</TABLE>
4
<PAGE>
Exhibit 4.1
- --------------------------------------------------------------------------------
MACK-CALI REALTY, L.P.,
Issuer
MACK-CALI REALTY CORPORATION,
Guarantor
to
WILMINGTON TRUST COMPANY,
Trustee
INDENTURE
Dated as of March 16, 1999
DEBT SECURITIES
- --------------------------------------------------------------------------------
<PAGE>
REFERENCE SHEET*
Reference is made to the following provisions of the Trust Indenture
Act of 1939, as amended, which establish certain duties and responsibilities of
the Issuer and the Trustee which may not be set forth in this Indenture:
<TABLE>
<CAPTION>
Sections Subject Section Subject
- -------- ------- ------- -------
<S> <C> <C> <C>
310(b) Disqualification of the Trustee 315(b) Notice of default from the
for conflicting interest Trustee to Securityholders
311 Preferential collection of claims 315(c) Duties of the Trustee in case
of the Trustee as creditor of the of default
Issuer
312(a) Periodic filing of information 315(d) Provisions relating to
by the Issuer with Trustee responsibility of the Trustee
312(b) Access of Securityholders to 315(e) Assessment of costs against
information litigating Securityholders in
certain circumstances
313(a) Annual report of the Trustee to 316(a) Directions and waivers by
Securityholders Securityholders in certain
circumstances
313(b) Additional reports of the 316(b) Prohibition of impairment of
Trustee to Securityholders right of Securityholders to
payment
314(a) Reports by the Issuer, including 316(c) Right of the Issuer to set
annual compliance certificate record date for certain purposes
</TABLE>
- ----------
* This reference sheet is not a part of the Indenture.
1
<PAGE>
<TABLE>
<S> <C> <C> <C>
314(b) Evidence of compliance with 317(a) Special powers of the
conditions precedent Trustee
315(a) Duties of the Trustee prior to 318(a) Provisions of Trust Indenture
default Act of 1939 to control in
case of conflict.
</TABLE>
2
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.................................................2
SECTION 102. Compliance Certificates and Opinions.......................11
SECTION 103. Form of Documents Delivered to Trustee.....................12
SECTION 104. Acts of Holders............................................13
SECTION 105. Notices, etc., to Trustee, Issuer and Guarantor............15
SECTION 106. Notice to Holders; Waiver..................................15
SECTION 107. Effect of Headings and Table of Contents...................16
SECTION 108. Successors and Assigns.....................................16
SECTION 109. Separability Clause........................................16
SECTION 110. Benefit of Indenture.......................................16
SECTION 111. Governing Law..............................................17
SECTION 112. Legal Holidays.............................................17
SECTION 113. Immunity of Stockholders, Unitholders, Directors,
Officers and Agents of the Issuer and the Guarantor........17
SECTION 114. Conflict with Trust Indenture Act..........................17
ARTICLE II
SECURITIES FORMS
SECTION 201. Forms of Securities........................................18
SECTION 202. Form of Trustee's Certificate of Authentication............18
SECTION 203. Securities Issuable in Global Form.........................18
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.......................20
SECTION 302. Denominations..............................................24
SECTION 303. Execution, Authentication, Delivery and Dating.............25
SECTION 304. Temporary Securities.......................................27
SECTION 305. Registration, Registration of Transfer and Exchange........28
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PAGE
----
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...........31
SECTION 307. Payment of Interest; Interest Right Preserved..............33
SECTION 308. Persons Deemed Owners......................................35
SECTION 309. Cancellation...............................................36
SECTION 310. Computation of Interest....................................36
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................37
SECTION 402. Application of Trust Funds.................................38
SECTION 403. Reinstatement..............................................39
ARTICLE V
REMEDIES
SECTION 501. Event of Default...........................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment.........41
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee....................................................43
SECTION 504. Trustee May File Proof of Claim............................44
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons......................................45
SECTION 506. Application of Money Collected.............................45
SECTION 507. Limitation on Suits........................................45
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts...........46
SECTION 509. Restoration of Rights and Remedies.........................46
SECTION 510. Rights and Remedies Cumulative.............................47
SECTION 511. Delay or Omission Not Waiver...............................47
SECTION 512. Control by Holders of Securities...........................47
SECTION 513. Waiver of Past Defaults....................................47
SECTION 514. Waiver of Usury, Stay or Extension Laws....................48
SECTION 515. Undertaking for Costs......................................48
ii
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PAGE
----
ARTICLE VI
THE TRUSTEE
SECTION 601. Notice of Defaults.........................................49
SECTION 602. Certain Rights of Trustee..................................49
SECTION 603. Not Responsible for Recitals or Issuance of Securities.....51
SECTION 604. May Hold Securities........................................51
SECTION 605. Money Held in Trust........................................51
SECTION 606. Compensation and Reimbursement.............................51
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests..................................................52
SECTION 608. Resignation and Removal; Appointment of Successor..........52
SECTION 609. Acceptance of Appointment by Successor.....................54
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business...................................................56
SECTION 611. Appointment of Authentication Agent........................56
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders...............58
SECTION 702. Reports by Trustee.........................................58
SECTION 703. Reports by Issuer and Guarantor............................58
SECTION 704. Issuer and the Guarantor to Furnish to Trustee Names and
Addresses of Holders.......................................59
ARTICLE VIII
CONSOLIDATION, MERGER AND SALES
SECTION 801. Issuer May Consolidate, Etc................................60
SECTION 802. Successor Person Substituted for Issuer....................61
SECTION 803. Guarantor May Consolidate, Etc.............................61
SECTION 804. Successor Person Substituted for Guarantor.................62
SECTION 805. Assumption by Guarantor....................................62
iii
<PAGE>
PAGE
----
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.........63
SECTION 902. Supplemental Indentures With Consent of Holders............65
SECTION 903. Execution of Supplemental Indentures.......................66
SECTION 904. Effect of Supplemental Indentures..........................66
SECTION 905. Conformity with Trust Indenture Act........................67
SECTION 906. Reference in Securities to Supplemental Indentures.........67
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts......................................67
SECTION 1002. Maintenance of Office or Agency.........................67
SECTION 1003. Money for Securities Payments to Be Held in Trust.......69
SECTION 1004. Existence...............................................71
SECTION 1005. Statement as to Compliance..............................71
SECTION 1006. Maintenance of Properties...............................72
SECTION 1007. Insurance...............................................72
SECTION 1008. Payment of Taxes and Other Claims.......................72
SECTION 1009. Additional Amounts......................................72
SECTION 1010. Waiver of Certain Covenants.............................73
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article................................74
SECTION 1102. Election to Redeem; Notice to Trustee...................74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.......74
SECTION 1104. Notice of Redemption....................................74
SECTION 1105. Deposit of Redemption Price.............................76
SECTION 1106. Securities Payable on Redemption Date...................76
SECTION 1107. Securities Redeemed in Part.............................77
iv
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PAGE
----
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article................................78
SECTION 1202. Satisfaction of Sinking Fund Payment with Securities....78
SECTION 1203. Redemption of Securities for Sinking Fund...............78
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article................................79
SECTION 1302. Repayment of Securities.................................79
SECTION 1303. Exercise of Option......................................79
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.................................................80
SECTION 1305. Securities Repaid in Part...............................81
ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE......................82
SECTION 1401. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance.......................82
SECTION 1402. Defeasance and Discharge................................82
SECTION 1403. Covenant Defeasance.....................................83
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.........83
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions................85
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called...............87
SECTION 1502. Call, Notice and Place of Meetings......................87
SECTION 1503. Persons Entitled to Vote at Meetings....................87
SECTION 1504. Quorum; Action..........................................88
v
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PAGE
----
SECTION 1505. Determination of Voting Right; Conduct and Adjournment
of Meetings.............................................89
SECTION 1506. Counting Votes and Recording Action of Meeting..........90
ARTICLE XVI
GUARANTEE
SECTION 1601. Guarantee...............................................91
EXHIBIT A FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE............................94
vi
<PAGE>
INDENTURE, dated as of March 16 1999, among Mack-Cali Realty, L.P.,
a limited partnership organized under the laws of Delaware (hereinafter called
the "Issuer"), having its principal office at 11 Commerce Drive, Cranford, New
Jersey 07016, Mack-Cali Realty Corporation, a corporation organized under the
laws of Maryland (hereinafter called the "Guarantor"), having its principal
office at 11 Commerce Drive, Cranford, New Jersey 07016, and Wilmington Trust
Company, a Delaware banking corporation, as Trustee hereunder (hereinafter
called the "Trustee"), having a Corporate Trust Office at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
RECITALS
The Issuer deems it necessary to issue from time to time for lawful
purposes its unsecured debt securities (hereinafter called the "Securities")
evidencing its unsecured indebtedness, and has duly authorized the execution and
delivery of this Indenture, to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions as shall be
fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
For value received, the execution and delivery by the Guarantor of
this Indenture to provide for the issuance of the Guarantee provided for herein
has been duly authorized. All things necessary to make this Indenture a valid
agreement of the Guarantor, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are deemed to be incorporated into this Indenture
by such Act, and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
<PAGE>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA, either
directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper", as
used in TIA Section 311, shall have the meanings assigned to them in the
rules of the Commission adopted under the TIA;
(3) all account terms not otherwise defined herein have the meanings
assigned to than in accordance with GAAP; and
(4) the words 'herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Issuer in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
2
<PAGE>
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any authenticating agent appointed by
the Trustee pursuant to Section 611.
"Authority Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board" means the board of directors of the General Partner, the
executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the General Partner to have been duly
adopted by the Board and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
Delaware or any other particular location referred to in this Indenture or in
the Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, any day, other than a Saturday or Sunday, that is
neither a legal holiday nor a day on which banking institutions in that Place of
Payment, Delaware or particular location are authorized or required by law,
regulation or executive order to close.
"Capitalized Leases" means any lease of property by the Issuer or
any Subsidiary as lessee which is reflected on the Issuer's consolidated balance
sheet as a capitalized lease, or which should be so reflected, in accordance
with GAAP.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
3
<PAGE>
"Conversion Event" means the cessation of use of (i) a Foreign
Currency either by the government of the country which issued such currency or
for the settlement of transactions by a central bank or other public institution
of or within the international banking community, (ii) the ECU either within the
European Monetary System or for the settlement of transactions by public
institutions of or within the European Community, or (iii) any currency unit (or
composite currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Administration.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depository Trust Company, or any successor thereto.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Community.
"European Community" means the European Economic Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"Event of Default" has the meaning specified in Article Five.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries, other than the United States of America, or by any
recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis.
4
<PAGE>
"General Partner" means MACK-CALI REALTY CORPORATION, a Maryland
corporation, as general partner of the Issuer.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust issuer as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Guarantee" means the unconditional guarantee of the payment of the
principal of or any premium or interest on or any Additional Amounts with
respect to the Guaranteed Securities by the Guarantor, as more fully set forth
in Article Sixteen.
"Guaranteed Securities" means a series of Securities made subject to
a Guarantee (as set forth in Article Sixteen) pursuant to Section 301.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Guarantor's Board of Directors" means the board of directors of the
Guarantor or any committee of that board duly authorized to act generally or in
any particular respect for the Guarantor hereunder.
"Guarantor's Board Resolution" means a copy of one or more
resolutions, certified by the Secretary or an Assistant Secretary of the
Guarantor to have been duly adopted by the Guarantor's Board of Directors and to
be in full force and effect on the date of such certification, delivered to the
Trustee.
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"Guarantor's Officers' Certificate" means a certificate signed by
the Chair man, the President or a Vice President and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Guarantor,
that complies with the requirements of Section 314(e) of the Trust Indenture Act
and is delivered to the Trustee.
"Guarantor Request" and "Guarantor Order" mean, respectively, a
written request or order signed in the name of the Guarantor by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof
"Indebtedness" of the Issuer or any Subsidiary means, without
duplication, any indebtedness of the Issuer or any Subsidiary, in respect of (i)
borrowed money, (ii) evidenced by bonds, notes, debentures or similar
instruments, (iii) indebtedness secured by any mortgage, pledge, lien, charge,
encumbrance or any security interest existing on property owned by the Issuer or
any Subsidiary, (iv) letters of credit or amounts representing the balance
deferred and unpaid of the purchase price of any property, except any such
balance that constitutes an accrued expense or trade payable, or (v) Capitalized
Leases, and also includes, to the extent not otherwise included, any obligation
by the Issuer or any Subsidiary to be liable for, or to pay, as obligor,
guarantor or otherwise (other than for purposes of collection in the ordinary
course of business), indebtedness of another person (other than the Issuer or
any Subsidiary).
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; PROVIDED, HOWEVER, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which any such Person
is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended and shall include the terms of the Security or
those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less than
the principal
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face amount thereof at original issuance, as determined by reference to a
particular index or other measure specified in a supplemental indenture relating
to such Security.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1010,
includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Issuer" means the Person named as the "Issuer" in the first
paragraph of this Indenture until a successor shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Issuer" shall mean
such successor.
"Issuer Request" and "Issuer Order" mean, respectively, a written
request or order signed in the name of the Issuer by the General Partner by its
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the General Partner, and delivered to the
Trustee.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the President
or a Vice President of the General Partner and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the General Partner, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may, if
permitted by the TIA, be counsel for the Issuer or the Guarantor, as the case
may be, or who may be an employee of or other counsel for the Issuer or the
Guarantor, as the case may be.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except;
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(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Issuer or the Guarantor) in trust for the Holders of such
Securities and any coupons appertaining thereto, provided, that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402 and
1403, with respect to which the Issuer or the Guarantor has effected
defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Issuer;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of the Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined pursuant to Section 301 as of the date such
Security is originally issued by the Issuer, of the principal amount (or, in the
case of an Original Issue Discount Security, the Dollar equivalent as of such
date of original issuance of the amount determined as provided in clause (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed Outstanding for such purpose shall be equal to the principal face amount
of such Indexed Security at original issuance, unless otherwise provided with
respect to such
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Security pursuant to Section 301, and (iv) Securities owned by the Issuer, the
Guarantor, or any other obligor upon the Securities or any Affiliate of the
Issuer, the Guarantor, or of such other obligor shall be disregarded and deemed
not to be Outstanding, except that, in deter mining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee knows to be so owned shall be so disregarded. Securities so
owned which shall have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee (A) the pledgee's
right so to act with respect to such Securities and (B) that the pledgee is not
the Issuer, the Guarantor or any other obligor upon the Securities or any
coupons appertaining thereto or an Affiliate of the Issuer, the Guarantor or
such other obligor.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal of (and premium, if any) or interest on any securities or coupons on
behalf of the Issuer.
"Person" means any individual, corporation, partnership, limited
liability company, limited partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, last or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security established pursuant
to Section 201 which is registered in the Security Register.
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"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of any series means the date specified
for that purpose as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or vice- chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer, the controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; PROVIDED, HOWEVER, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered by such Trustee
(or its predecessor as such) under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X,
promulgated under the Securities Act of 1933, as amended) of the Issuer.
"Special Record Date" for the payment of any Defaulted Interest on
the Registered Securities of any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon
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representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest is due
and payable.
"Subsidiary" means a corporation, partnership or limited liability
company, a majority of the outstanding voting stock, partnership interests or
membership interests, as the case may be, of which is owned or controlled,
directly or indirectly, by the Issuer or by one or more other Subsidiaries of
the Issuer. For the purposes of this definition, "voting stock" means stock
having voting power for the election of directors, whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Issuer or the Guarantor to the Trustee to take any
action under any provision of this Indenture, the Issuer or the Guarantor, as
the case may be, shall furnish to the Trustee an Officers' Certificate or a
Guarantor's Officer's Certificate, as the case may be, stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action
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have been complied with and an Opinion of Counsel stating that in the opinion of
such Counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1006) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by or covered by an opinion
of any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person or give an opinion as to such matters in one
or several documents.
Any certificate or opinion of an officer of the Issuer or the
Guarantor 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 Issuer or the
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Guarantor, as the case may be, stating that the information as to such factual
matters is in the possession of the Issuer or the Guarantor, as the case may be,
unless such counsel knows that the certificate or opinion or representations as
to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or
taken by Holders of the Outstanding Securities of all series or one or
more series, as the case may be, may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders
in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders of Securities of such
series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof either in
person or by proxies duly appointed in writing, at any meeting of Holders
of Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and
any such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Issuer and the Guarantor. Such instrument or
instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security,
shall be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Issuer and the Guarantor and any agent of the
Trustee or the Issuer and the Guarantor, if made in the manner provided in
this Section. The record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 1506;
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or
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affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may so be proved in any other
reasonable manner which the Trustee deans sufficient;
(c) The ownership of Registered Securities shall be proved by
the Security Register;
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, by any trust issuer, bank or other depository reasonably
acceptable to the Issuer and the Guarantor, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing
that at the date therein mentioned such Person had on deposit with such
depository, or exhibited to it, the Bearer Securities therein described;
or such facts may be proved by the certificate or affidavit of the Person
holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee, the Guarantor and the
Issuer may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in
respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such
Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient;
(e) If the Issuer or the Guarantor shall solicit from the
Holders of Registered Securities any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Issuer or the
Guarantor, as the case may be, may, at its option, in or pursuant to a
Board Resolution in Guarantor's Board Resolution, as the case may be, fix
in advance a record date for the determination of the Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Issuer or the Guarantor shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not earlier than the date 30 days prior
to the first solicitation of the Holders generally in connection therewith
and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
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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 seven months after the record date;
(f) Any request, demand, authorization, direction, notice,
consent. waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every security
issued upon the registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted or suffered to be
done by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent, the Guarantor or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE, ISSUER AND GUARANTOR. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(1) the Trustee by any Holder, the Guarantor or the Issuer shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee and received at its Corporate Trust
Office, or
(2) the Issuer or the Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage prepaid,
to the Issuer or the Guarantor, as the case may be, addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the
Trustee by the Issuer or the Guarantor, as the case may be.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to the Holders of Registered Securities by the
Issuer or the Trustee, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if in writing and mailed, first class postage
prepaid, to each such Holder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to the Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to the Holders of Bearer Securities given as provided herein. Any notice
mailed to a
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Registered Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
Except as otherwise express provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to the Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
the City of New York and in such other city or cities as maybe specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under the Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by the Holders shall be filed with the Trustee.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture by the Issuer or the Guarantor shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFIT OF INDENTURE. Nothing in this Indenture or in
the Securities or coupon, express or implied, shall give to any Person, other
than the parties hereto, any Security Register, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
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SECTION 111. GOVERNING LAW. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the laws of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions, which are incorporated herein by reference.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or any Additional Amounts or principal (and premium, if any) or sinking
fund payment need not be made at such Place of Payment on such date, but may be
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity, provided that interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be, to the date of payment.
SECTION 113. IMMUNITY OF STOCKHOLDERS, UNITHOLDERS, DIRECTORS,
OFFICERS AND AGENTS OF THE ISSUER AND THE GUARANTOR. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had against
any past, present or future stockholder, unitholder, employee, officer or
director, as such, of the Issuer or the Guarantor, or of any successor to the
Issuer or the Guarantor, either directly or through the Issuer, Guarantor or any
successor to the Issuer or the Guarantor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of the Securities by the Holders and as part of
the consideration for the issue of the Securities.
SECTION 114. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof which is
required or deemed to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
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ARTICLE II
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if any,
of each series and the Bearer Securities and related coupons, if any, of each
series shall be in substantially the form as shall be established in an
indenture supplemental hereto or approved from time to time by or pursuant to a
Board Resolution in accordance with Section 301, shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Issuer may deem appropriate and
as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities (and coupons, if any) shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Issuer executing such
Securities (or coupons), as evidenced by their execution of such Securities or
coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
________________________,
as Trustee
By______________________
Authorized Officer
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of a
series are issuable in global form, as specified in and as contemplated by
Section 301, then,
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notwithstanding clause (8) of Section 301 and the provisions of Section 302, any
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities of such series from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities of such
series represented thereby may from time to time be increased or decreased to
reflect exchanges. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Issuer Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified therein or
in the applicable Issuer Order. If a Issuer Order pursuant to Section 303 or 304
has been, or simultaneously is, delivered, any instructions by the Issuer with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to
any Security represented by a Security in global form if such Security was never
issued and sold by the Issuer and the Issuer delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form or (ii) in the case of a permanent
global Security in bearer form, the Person or Persons specified therein.
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ARTICLE III
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable:
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the series
shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated if other
than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
City of New York, where (i) the principal of (and premium, if any),
interest, if any, on, and Additional Amounts, if any, payable in respect
of; Securities of the series shall be payable, (ii) any Registered
Securities of the series may be
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surrendered for registration of transfer, exchange or conversion, and
(iii) notices or demands to or upon the Issuer in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, or the date or dates on
which, the price or prices at which, the currency or currencies, currency
unit or units or composite currency or currencies in which, and other
terms and conditions upon which Securities of the series may be redeemed,
in whole or in part, at the option of the Issuer, if the Issuer is to have
the option;
(7) the obligation, if any, of the Issuer to redeem, repay or
purchase Securities of the series, pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof upon the
occurrence of specified circumstances or otherwise, and the period or
periods within which or the date or dates on which, the price or prices at
which, the currency or currencies, currency unit or units or composite
currency or currencies in which, and other terms and conditions upon which
Securities of the series shall be redeemed, repaid or purchased, in whole
or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the
series shall be issuable and, if other than the denomination of $5,000,
the denomination or denominations in which any Bearer Securities of the
series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent for the series;
(10) the percentage of the principal amount at which Securities of
such series will be issued and, if other than the principal amount
thereof, the portion of the principal amount of Securities of the series
that shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502 or, if applicable, the portion of the
principal amount of Securities of the series that is convertible in
accordance with the provisions of this Indenture, or the method by which
such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any), interest, if any,
on, and Additional Amounts, if any, on the Securities of the series shall
be payable or in which the Securities of the series shall be denominated;
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(12) whether the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium, if any) or interest, if
any, on or Additional Amounts, if any, on the Securities of the series are
to he payable, at the election of the Issuer or the Guarantor or a Holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which,
such election may be made, and the time and manner of, and identity of the
exchange rate between the currency or currencies, currency unit or units
or composite currency or currencies in which such securities are
denominated or stated to be payable and the currency or currencies,
currency unit or units or composite currency or currencies in which such
Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Issuer or the Guarantor set forth in this
Indenture with respect to Securities of the series, (whether or not such
Events of Default or covenants are consistent with the Events of default
or covenants set forth herein);
(16) whether Securities of such series will be issued in
certificated or book-entry form and, if certificated, whether Securities
of the series are to be issuable as Registered Securities, Bearer
Securities (with or without coupons) or both, any restrictions applicable
to the offer, sale or delivery of Bearer Securities and the terms upon
which Bearer Securities of the series may be exchanged for Registered
Securities of the series and vice versa (if permitted by applicable laws
and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form with or without coupons
and, if so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such
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series and of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than in
the manner provided in Section 305, and, if Registered Securities of the
series are to be issuable as a global Security, the identity of the
depository for such series;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Issuer will pay
Additional Amounts as contemplated by Section 1010 on the Securities of
the series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax,
assessment or governmental charge and, if so, whether the Issuer will have
the option to
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redeem such Securities rather than pay such Additional Amounts (and the
terms of any such option);
(23) the terms and conditions, if any, upon which payment of the
Securities of such series shall be subordinated to other Indebtedness of
the Issuer (including, without limitation, the Indebtedness which ranks
senior to such Securities, restrictions on payments to Holders of such
Securities while a default with respect to such senior Indebtedness is
continuing; restrictions, if any, on payments to the Holders of such
Securities following an Event of Default, and any requirements for Holders
of such Securities to remit certain payments to the holders of such senior
Indebtedness);
(24) if the Securities of such series are to be Guaranteed
Securities; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denominations and except as may otherwise
be provided in or pursuant to the Board Resolution establishing the series
(subject to Section 303) and set forth in an Officers' Certificate or in any
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established
by action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Issuer and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the
Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions, the Registered Securities of such series, other
than Registered Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $1,000 and any integral
multiple thereof and the Bearer Securities of such series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $5,000 and any integral multiple $1,000. Securities
not denominated in
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Dollars shall be issuable in such denominations as are established with respect
to such Securities in or pursuant to this Indenture.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Issuer by its General Partner by its President or one of its Vice Presidents
and attested by its Secretary or one of its Assistant Secretaries. The signature
of any of these officers on the Securities and coupons may be manual or
facsimile signatures of such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer shall bind
the Issuer, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Issuer may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with a Issuer Order for the authentication and delivery
of such Securities, and the Trustee in accordance with the Issuer Order shall
authenticate and deliver such Securities; PROVIDED, HOWEVER, that, in connection
with its original issuance, no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and PROVIDED, FURTHER, that,
unless otherwise specified with respect to any series of Securities pursuant to
Section 301, a Bearer Security may be delivered in connection with its original
issuance only if the Person entitled to receive such Bearer Security shall have
furnished a certificate in the form set forth in EXHIBIT A to this Indenture or
such other certificate as may be specified with respect to any series of
Securities pursuant to Section 301, dated no earlier than 15 days prior to the
earlier of the date on which such Bearer Security is delivered and the date on
which a temporary Security first becomes exchangeable for such Bearer Security
in accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled if
all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Issue Order may set forth procedures acceptable to the Trustee for
the issuance of such Securities and determining the terms of particular
Securities of such series, such as
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interest rate or formula, maturity date, date of issuance and date from which
interest shall accrue. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Sections 315(a)
through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that:
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and
delivered by the Issuer or the Guarantor to the Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Issuer or the
Guarantor in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding obligations
of the Issuer, enforceable in accordance with their terms, subject to
applicable, bankruptcy, insolvency, reorganization and other similar of
general applicability relating to or affecting the enforcement of
creditors' rights generally and to general equitable principles; and will
entitle the Holders thereof to the benefits of this Indenture, including
the Guarantee; such Opinion of Counsel need express no opinion as to the
availability of equitable remedies; and
(ii) an Officers' Certificate and, if the Securities are Guaranteed
Securities, a Guarantor's Officer's Certificate, in each case stating that
all conditions precedent provided for in this Indenture relating to the
issuance of the Securities have been complied with and that, to the best
of the knowledge of the signers of such certificate, no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not acceptable to the Trustee.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
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No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
still have been authenticated and delivered hereunder but never issued and sold
by the Issuer, and the Issuer shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Issuer, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon Issuer
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, of the tenor of the definitive Securities in lieu of
which they are issued, in registered form, or, if authorized, in bearer form
with one or more coupons or without coupons, and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the terms thereof or as otherwise provided
in or pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; PROVIDED, HOWEVER, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and PROVIDED;
FURTHER; that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of
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any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee
or in any office or agency of the Issuer or the Guarantor in a Place of Payment
a register for each series of Registered Securities (the registers maintained in
such office or in any such office or agency of the Issuer or the Guarantor in a
Place of Payment being herein sometimes referred to collectively as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, the Issuer shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being convened into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed the "Security Registrar" for the purpose
of registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Issuer in a Place of Payment for that series, the Issuer shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Register Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution or
Guarantor's Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any Series may be exchanged for Registered Securities of the same
series of any authorized denominations and of a like aggregate
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principal amount and tenor, upon surrender of the Bearer Securities to be
exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons, in default any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Issuer
or the Guarantor (if such Bearer Securities are Guaranteed Securities) in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Issuer, the
Guarantor (if such Bearer Securities are Guaranteed Securities) and the Trustee
if there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to any Paying Agent any such missing coupon in
respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; PROVIDED, HOWEVER, that, except
as otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside the United States. Notwithstanding the foregoing, in case
a Bearer Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated in Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depository for any permanent global
Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC or to a successor to DTC for
such, global Security selected or approved by the Issuer or to a nominee of such
successor to DTC. If at any time DTC notifies the Issuer that it is unwilling or
unable to continue as depository for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Securities Exchange Act of 1934 if so required by applicable law or
regulation, the Issuer shall appoint a successor depository with respect to
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such global Security or Securities. If (x) a successor depository for such
global Security or Securities is not appointed by the Issuer within 90 days
after the Issuer receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is
continuing and the beneficial owners representing a majority in principal amount
of the applicable series of Securities represented by such global Security or
Securities advise DTC to cease acting as depository for such global Security or
Securities, or (z) the Issuer, in its sole discretion, determines at any time
that all (but not less than all) Outstanding Securities of any series issued or
issuable in the form of one or more global Securities shall no longer be
represented by such global Security or Securities, then the Issuer shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
of like series, rank, tenor and terms in a definitive form in an aggregate
principal amount equal to the principal amount of such global Security or
Securities. If any beneficial owner of an interest in a permanent global
Security otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event no later than the
earliest date on which such interest may be so exchanged, the Issuer shall
execute, and the Trustee shall authenticate and deliver, definitive Securities
in aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global Security
shall be surrendered for exchange by DTC or such other depository as shall be
specified in tile Issuer Order with respect thereto to the Trustee; PROVIDED,
HOWEVER, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and PROVIDED, FURTHER,
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for an portion of
a permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) a Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) a Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date or payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for
payment, as the case may be, only to the Person to whom interest in respect of
such portion of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Issuer and the Guarantor
(if the Security is a
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Guaranteed Security), respectively, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange, conversion or redemption shall (if so required by
the Issuer or the Security Registrar) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Issuer and the
Security Register, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Issuer or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of a Registered Security
to be redeemed in part, the portion thereof not selected for redemption may be
exchanged for a Registered Security of that series and of like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption, or (iii) to issue, register the transfer of or exchange any Security
which has been surrendered for repayment at the option of the Holder, except
that portion, if any, of such Security which is not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Issuer, together with, in proper cases,
such security or indemnity as may be required by the Issuer or the Trustee to
save each of them or any agent of either of them harmless, the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
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If there shall be delivered to the Issuer, the Guarantor (if the
Security is a Guaranteed Security) and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and
(ii) such security or indemnity as may be required by them to save each of them
and any agent of either of them harmless, then, in the absence of written notice
to the Issuer, the Guarantor (if the Security is a Guaranteed Security) or the
Trustee that such Security or coupon has been acquired by a bona fide purchaser,
the Issuer shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a new Security of the
same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security
or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Issuer in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to, Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any mutilated, destroyed, lost or stolen
Security, or in exchange for a Security to which a mutilated, destroyed, lost or
stolen coupon may pertain, shall constitute an original additional contractual
obligation of the Issuer and the Guarantor (if the Security is a Guaranteed
Security), whether or not the mutilated, destroyed, lost or stolen Security and
its coupons, if and, or the mutilated, destroyed, lost or stolen coupon shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to The replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
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SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHT PRESERVED. Except
as otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Issuer maintained
for such purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each
installment of interest on any Registered Security may at the Holders option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 303, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest may be made, in the
case of a Bearer Security, by transfer to an account maintained by the payee
with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, with respect to that portion of such
permanent global Security held for its account by Cede & Co, for the purpose of
permitting such party to credit the interest received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular Record
Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest shall be paid by the Issuer or the Guarantor (if the
Registered Security is a Guaranteed Security), as provided in clause (1) or (2)
below:
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(1) The Issuer or the Guarantor (if the Registered Security is a
Guaranteed Security) may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Issuer or the
Guarantor (if the Registered Security is a Guaranteed Security) shall
notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice
is received by the Trustee), and at the same time the Issuer or the
Guarantor (if the Registered Security is a Guaranteed Security), as the
case may be, shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed payment
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall not be more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than
10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Issuer or the Guarantor, as
the case may be, of such Special Record Date and, in the name and at the
expense of the Issuer or the Guarantor, as the case may be, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Issuer or the Guarantor, as the case may be, cause a
similar notice to be published at least once in an Authorized Newspaper in
each Place of Payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such
series (or their respective predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2). In case a Bearer Security of
any series is
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surrendered for transfer or exchange at the office or agency in a Place of
Payment for such series after the close of business at such office or
agency on any Special Record Date and before the opening of business at
such office or agency on the related pro posed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
coupon relating to such Proposed date of payment and Defaulted Interest
will not be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
(2) The Issuer or the Guarantor (if the Security is a Guaranteed
Security) may make payment of any Defaulted Interest on the Registered
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Issuer or the Guarantor, as the case may be, to
the Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. PERSONS DEEMED OWNERS. Prior to due presentment of a
Registered Security for registration of transfer, the Issuer, the Guarantor (if
the Registered Security is a Guaranteed Security), the Trustee and any agent of
the Issuer, the Guarantor (if the Registered Security is Guaranteed Security) or
the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any), and (subject to Sections 305 and 307)
interest on, such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security is overdue, and neither the Issuer nor
the Guarantor, the Trustee nor any agent, the Guarantor (if the Bearer Security
is a Guaranteed Security), of the Issuer, the Guarantor or the Trustee shall be
affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Issuer the Guarantor (if the Bearer Security is a
Guaranteed Security), the Trustee and any agent of the Issuer, or the Trustee
may treat the Holder of any Bearer Security and the Holder of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not such Security or coupon is overdue, and neither the Issuer the
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Guarantor, the Trustee nor any agent of the Issuer the Guarantor or, the Trustee
shall be affected by notice to the contrary.
None of the Issuer, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Issuer, the Guarantor (if the Bearer Security
is a Guaranteed Security), the Trustee, or any agent of the Issuer, the
Guarantor (if the Bearer Security is a Guaranteed Security), or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any depository, as a Holder, with respect to such global Security
or impair, as between such depository and owners of beneficial interests in such
global Security, the operation of customary practices governing the exercise of
the rights of such depository (or its nominee) as Holder of such global
Security.
SECTION 309. CANCELLATION. All Securities and coupons surrendered
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Issuer or the Guarantor (if the Security is a Guaranteed Security) may at
any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Issuer or the Guarantor (if the
Security is a Guaranteed Security) may have acquired in any manner whatsoever,
and may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Issuer has not issued and sold,, and all Securities so delivered
shall be promptly canceled by the Trustee. If the Issuer shall so acquire any of
the Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of such destruction to the Issuer and
the Guarantor, unless by a Issuer Order or Guarantor Order the Issuer or the
Guarantor, as the case may be, directs their return to it.
SECTION 310. COMPUTATION OF INTEREST. Except as otherwise specified
as contemplated by Section 301 with respect to Securities of any series,
interest on the
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Securities of each series shall be computed on the basis of a 360-day year
consisting of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall upon an Issuer Request or a Guarantor Request (if the applicable series of
Securities is a series of Guaranteed Securities) cease to be of further effect
with respect to any series of Securities specified in such Issuer Request or
Guarantors Request (except as to any surviving rights of registration of
transfer or exchange of Securities of such series herein expressly provided for
and any right to receive Additional Amounts, as provided in Section 1010), and
the Trustee, upon receipt of a Issuer Order or Guarantor Order, and at the
expense of the Issuer and the Guarantor, shall execute proper instruments
acknowledging satisfaction and discharge of its Indenture as to such series when
(1) either:
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender is
not required or has been waived as provided in Section 305, (ii)
Securities and coupons of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 306,
(iii) coupons appertaining to Securities called for redemption and
maturing after the relevant Redemption Date, whose surrender has been
waived as provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Issuer and thereafter repaid
to the Issuer or discharged from such trust, as provided in Section 1003)
have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons pertaining thereto, not theretofore delivered to the
Trustee for cancellation.
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one
year, or
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(iii) if redeemable at the option of the Issuer, are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Issuer and the Guarantor (if the Securities of
such series are Guaranteed Securities),
and the Issuer or the Guarantor (if the Securities of such series are
Guaranteed Securities), in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as funds
in trust for such purpose an amount in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium, if
any) and interest, and any Additional Amounts with respect thereto, to the
date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may
be; and
(2) the Issuer or the Guarantor (if the Securities of such series
are Guaranteed Securities) has paid or caused to be paid all other sums
payable hereunder by the Issuer and the Guarantor; and
(3) the Issuer has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel and the Guarantor has delivered to the Trustee a
Guarantor's Officers' Certificate (if the Securities of such series are
Guaranteed Securities), each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture
as to such series have been complied with.
The obligations of the Issuer to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Issuer to any Authenticating
Agent under Section 611 and, if money shall have been deposited with and held by
the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive the satisfaction and discharge of this Indenture.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the provisions
of the last paragraph of Section 1003, all monies deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent but not in any event
including the Issuer acting as its own Paying Agent, as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), and any
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interest and Additional Amounts for whose payment such money has been deposited
with or received by the Trustee. Such money shall he segregated from other funds
of the Trustee.
SECTION 403. REINSTATEMENT. If the Trustee or the Paying Agent is
unable to apply any money in accordance with this Article Four by any 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 Four until such time as
the Trustee or Paying Agent is permitted to apply all money held in trust with
respect to the Securities; PROVIDED, HOWEVER, that if the Issuer makes any
payment of principal of or any premium or interest on any Securities following
the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of the Securities to receive such payment from the money
so held in trust.
ARTICLE V
REMEDIES
SECTION 501. EVENT OF DEFAULT. "Event of Default," wherever used
herein with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series or of any coupon
appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of
30-days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of any Security of that series; or
(4) default in the performance of, or breach of, any covenant or
warranty of the Issuer or the Guarantor (if the Securities of such series
are Guaranteed Securities) in this Indenture with respect to any Security
of that
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series (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section 501 specifically dealt with),
and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Issuer and
the Guarantor (if the Securities of such series are Guaranteed Securities)
by the Trustee or to the Issuer, the Guarantor (if the Securities of such
series are Guaranteed Securities) and the Trustee by the Holders of at
least a majority in principal amount of the Outstanding Securities of that
series a written notice specified such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) a default under any bond, debenture, note or other evidence of
indebtedness of the Issuer, or the Guarantor (if the Securities of such
series are Guaranteed Securities) or under any mortgage, indenture or
other instrument of the Issuer or the Guarantor (if the Securities of such
series are Guaranteed Securities) (including a default with respect to
Securities of any series other than that series) under which there may be
issued or by which there may be secured any indebtedness of the Issuer or
the Guarantor (if the Securities of such series are Guaranteed Securities)
(or by any Subsidiary, the repayment of which the Issuer has Guaranteed or
for which the Issuer is directly responsible or liable as obligor or
guarantor), whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay an aggregate
principal amount exceeding $10,000,000 of such indebtedness when due and
payable which shall continue after the expiration of any applicable grace
period with respect thereto or shall have resulted in such indebtedness in
an aggregate principal amount exceeding $10,000,000 becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled, within
a period of 10 days after there shall have been given, by registered or
certified mail, to the Issuer or the Guarantor, as the case may be, by the
Trustee or to the Issuer or the Guarantor, as the case may be, and the
Trustee by the Holders of at least a majority in principal amount of the
Outstanding Securities of that series a written notice specifying such
default and requiring the Issuer or the Guarantor, as the case may be, to
cause such indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Issuer, the Guarantor (if the Securities of such series are
Guaranteed Securities) or any Significant Subsidiary pursuant to or within
the meaning of any Bankruptcy Law:
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(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 for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Issuer, the Guarantor (if the
Securities of such series are Guaranteed Securities) or any
Significant Subsidiary in an involuntary case, or
(B) appoints a Custodian of the Issuer, or the Guarantor (if
the Securities of such series are Guaranteed Securities) or any
Significant Subsidiary or for all or substantially all of either of
its property, or
(C) orders the liquidation of the Issuer, the Guarantor (if
the Securities of such series are Guaranteed Securities) or any
Significant Subsidiary and the order or decree remains unstayed and
in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title
11, U.S. Code or any similar Federal or State law for the relief of debtors and
the term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than a majority in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities of
that series to be
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due and payable immediately, by a notice in writing to the Issuer and the
Guarantor (if the Securities are Guaranteed Securities) (and to the Trustee if
given by the Holders), and upon any such declaration such principal or specified
portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of not less than a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Issuer and
the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) has paid or deposited with the Trustee a sum sufficient to pay
in the currency, currency unit or composite currency in which the
Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate or
rates borne by or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any Additional
Amounts at the rate or rates borne by or provided for in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or
interest on Securities of that series which have become due solely by such
declaration of acceleration have been cured or waived as provided in
Section 513.
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No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE. The Issuer and the Guarantor (if the Securities are Guaranteed
Securities) covenants, in each case, that if:
(1) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Securities of any series and any
related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security of any series at its Maturity,
then the Issuer or the Guarantor (if the Securities are Guaranteed Securities)
will, as the case may be, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium, if any) and interest and Additional Amounts thereon, with interest
upon any overdue principal (and premium, if any) and, to the extent that payment
of such interest shall be legally enforceable, upon any overdue installments of
interest or Additional Amounts thereon, if any, at the rate or rates borne by or
provided for in such Securities, and, in addition thereto, such further amount
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel.
If the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) fails to pay such amounts forthwith upon such demand, the Trustee,
in its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Issuer, the Guarantor (if the Securities are Guaranteed Securities) or any
other obligor upon such Securities of such series and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) or any other obligor upon such Securities of such series, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such
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rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOF OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuer, the Guarantor (if the Securities are
Guaranteed Securities) or any other obligor upon the Securities or the property
of the Issuer, the Guarantor (if the Securities are Guaranteed Securities) or of
such other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities of any series shall then be due and payable as
therein expressed or by declaration or other wise and irrespective of whether
the Trustee shall have made any demand on the Issuer or the Guarantor (if the
Securities are Guaranteed Securities) for the payment of overdue principal of,
premium, if any, or interest on the Securities) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of
principal (and premium, if any) and interest and Additional Amounts, if
any, owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding,
(ii) to participate as a member, voting or otherwise, of any
official committee of creditors appointed in such matter, and
(iii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidation, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that such payments are made directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee and any
predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder or Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or
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coupons or the rights of any Holder thereof, or to authorize the Trustee to vote
in respect of the claim of any Holder of a Security or coupon in any such
proceeding.
In any proceeding brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities, and it shall not be necessary to make any Holders of the
Securities parties to any such proceedings.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. All rights of action and claims under this Indenture or
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of Securities
and coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order, at
the date and dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) and interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest and any
Additional Amounts payable, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any), interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to the Issuer.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise,
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with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than a majority in principal amount of
the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, IF ANY, INTEREST AND ADDITIONAL AMOUNTS. Notwithstanding any other
provision in this Indenture, the Holder of any Security or coupon shall have the
right which is absolute and unconditional to receive payment of the principal of
(and premium, if any) and (subject to Sections 305 and 307) interest on, and any
Additional Amounts in respect of, such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy
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under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Issuer, the Guarantor (if the Security is a
Guaranteed Security), the Trustee and the Holders of Securities and coupons
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former position hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion nor employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission of
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series,
provided that:
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might expose it to
personal liability, without the receipt of reasonable indemnity from
Holders
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requesting such action, or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been waived, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Issuer and
the Guarantor, in each case, covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at anytime hereafter in force which may
affect the covenants or the performance of this Indenture, and the Issuer and
the Guarantor each (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture
acknowledge, and each Holder of any Security by his acceptance thereof shall be
deemed to have acknowledged, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than
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a majority in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium if any) or interest on any Security on or after the respective
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; PROVIDED, HOWEVER, that, except in the
case of a default in the payment of the principal of (or premium if any) or
interest on or any Additional Amounts or sinking fund installment with respect
to the Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as Responsible Officers of the Trustee in good faith
determine that the withholding of such notice is in the interest of the Holders
of the Securities and coupons of such series; and PROVIDED, FURTHER, that in the
case of any default or breach of the character specified in Section 501(4) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereon. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to the Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of
TIA Sections 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parities;
(2) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a Issuer Request or Issuer Order or of the
Guarantor mentioned herein shall be sufficiently evidenced by a Guarantor
Request or Guarantor Order (in each case, other than delivery of any
Security, together with any coupons appertaining thereto, to the Trustee
for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be
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sufficiently evidenced by a Board Resolution or by the Guarantor's Board
of Directors may be sufficiently evidenced by a Guarantor's Board
Resolution or, if such matter pertains to the Guarantor, a Guarantor's
Officer's Certificate;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting to take any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon,
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reason able security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction,
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer and the
Guarantor, personally or by agent or attorney,
(7) the Trustee may execute any of the trusts of powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
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The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the Trustee's
certificate of authorization, and in any coupons shall be taken as the
statements of the Issuer or the Guarantor (if the Securities are Guaranteed
Securities), as the case may be, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligation hereunder. Neither the Trustee nor the Authenticating
Agent shall be accountable for the use or application by the Issuer of
Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent,
Security Registrar, Authenticating Agent or any other agent of the Issuer or the
Guarantor, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310 (b) and 311,
may otherwise deal with the Issuer or the Guarantor with the same rights it
would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder, except as otherwise agreed with the Issuer.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Issuer and the
Guarantor jointly and severally agree;
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and
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counsel), except any such expense, disbursement or advance as may be
attributable to Trustee's negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Issuer and
the Guarantor under this Section, the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest on particular Securities or coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of a
Federal, state, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 609.
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(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Issuer and the Guarantor (if the Securities are Guaranteed Securities). If
an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the
Trustee and to the Issuer and the Guarantor (if the Securities are
Guaranteed Securities).
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Issuer, the Guarantor
(if the Securities are Guaranteed Securities) or by any Holder of a
Security who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Issuer, the
Guarantor (if the Securities are Guaranteed Securities) or by any Holder
of a Security who has been a bona fide Holder of a Security for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by or pursuant to a Board Resolution or
the Guarantor (if the Securities are Guaranteed Securities), by or pursuant to a
Guarantor's Board Resolution, may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) if the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any reason with respect
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to the Securities of one or more series, the Issuer, by or pursuant to a
Board Resolution, and the Guarantor (if the Securities are Guaranteed
Securities), by or pursuant to a Guarantor's Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series). If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series
delivered to the Issuer, the Guarantor (if the Securities are Guaranteed
Securities) and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and to
that extent supersede the successor Trustee appointed by the Issuer and
the Guarantor (if the Securities are Guaranteed Securities). If no
successor Trustee with respect to the Securities of any series shall have
been so appointed by the Issuer and the Guarantor (if the Securities are
Guaranteed Securities) or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security
who has been a bona fide Holder of a Security of such series for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to Securities of such series.
(f) The Issuer shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series in the manner provided for notices to the Holders of Securities
in Section 106. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of
its Corporate Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee shall
execute, acknowledge and deliver to the Issuer, the Guarantor and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, upon request of the Issuer, the Guarantor or the
successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor
trustee all the rights, powers and trusts of
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the retiring Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all)
series, the Issuer, the Guarantor (if any of such series of Securities is
a series of Guaranteed Securities) the retiring Trustee and each successor
Trustee with respect to the Securities of one or more series shall execute
and deliver an indenture supplemental hereto, pursuant to Article Nine
hereof, wherein each successor Trustee shall accept such appointment and
which (i) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (ii) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (iii) shall add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by
more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the
same trust, and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such supple
mental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the right, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Issuer, the
Guarantor, if applicable, or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer and
the Guarantor shall execute any and all instruments for a more fully and
certainly vesting in, and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of this
section, as the ease may be.
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(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATION AGENT. At any time when
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee Hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instruction shall be
promptly furnished to the Issuer. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Issuer and the Guarantor and, except as may otherwise be provided pursuant to
Section 301, shall at all times be a bank or trust issuer or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
federal or state authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the
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requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series,
the Guarantor and the Issuer. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent, the Guarantor and the
Issuer. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series may
appoint a successor Authenticating Agent which shall be acceptable to the Issuer
and the Guarantor and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
service in the manner set forth in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Issuer agrees and the Guarantor agrees to pay to each
Authenticating Agent from time to time reasonable compensation including
reimbursement of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
___________________________________
as Trustee
By:_________________________________
as Authenticating Agent
By:_________________________________
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every
Holder of Securities or coupons, by receiving and holding the same, agrees with
the Issuer, the Guarantor and the Trustee that neither the Issuer, the Guarantor
nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any
Security Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after January 1 of
each year commencing with the first January 1 after the issuance of Securities
pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such
January 1, if required by TIA Section 313(a).
SECTION 703. REPORTS BY ISSUER AND GUARANTOR. The Issuer and the
Guarantor will:
(1) file with the Trustee, within 15 days after the Issuer or the
Guarantor, as the case may be, is required to file the same with the
Commission, copies of the annual reports and of the information documents
and other reports (or copies of such portions of any of the foregoing as
the Commission may from time to time by rules and regulations prescribed)
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which the Issuer or the Guarantor, as the case may be, may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Issuer or Guarantor, as the
case may be, is not required to file information, documents or reports
pursuant to either of such Sections, then it will file with the Trustee
and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such of the supplementary
and periodic information, documents and reports which may be required
pursuant to Section 13 of the Securities Exchange Act of 1934 in respect
of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Issuer or Guarantor ,as the case may be, with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing hereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Issuer or the Guarantor
pursuant to paragraphs (1) and (2) of this section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 704. ISSUER AND THE GUARANTOR TO FURNISH TO TRUSTEE NAMES
AND ADDRESSES OF HOLDERS. The Issuer and the Guarantor (with respect to
Securities of each series that are Guaranteed Securities), will furnish or cause
to be furnished to the Trustee:
(a) semi-annually, not later than 25 days after the Regular
Record Date for interest for each series of Securities, a list, in such
form as the Trustee may reasonably require, of the names and addresses of
the Holders of Registered Securities of such series as of such Regular
Record Date, or if there is no Regular Record Date for interest for such
series of Securities, semi-annually, upon such dates as are set forth in
the Board Resolution or indenture supplemental hereto authorizing such
series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Issuer or the Guarantor (with
respect to Securities of each series that are Guaranteed Securities) of
any such request, a list of similar form
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and content as of a date not more than 15 days prior to the time such list
is furnished; PROVIDED, HOWEVER, that so long as the Trustee is the
Security Registrar, no such list shall be required to be furnished.
ARTICLE VIII
CONSOLIDATION, MERGER AND SALES
SECTION 801. ISSUER MAY CONSOLIDATE, ETC. Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the issuer with or into any other Person or
Persons (whether or not affiliated with the issuer), or successive
consolidations or mergers in which either the Issuer will he the continuing
entity or the Issuer or its successor or successors shall be a party or parties,
or shall prevent any conveyance, transfer or lease of all or substantially all
of the property of the Issuer, to any other Person (whether or not affiliated
with the Issuer); provided, however, that:
(1) in case the Issuer shall consolidate with or merge into another
Person or convey, transfer or lease all or substantially all of its
properties and assets to any Person, the entity formed by such
consolidation or into which the Issuer is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties of the Issuer shall be a Person organized arid
existing under the laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume, by an indenture
(or indentures if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and the Guarantor
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of, any premium and interest on and
any Additional Amounts with respect to all the Securities and the
performance of every obligation in this Indenture and the Outstanding
Securities on the part of the Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Issuer or the successor Person shall have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance, transfer or lease
and, if a supple mental indenture is required in connection with such
transaction, such
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supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
No such consolidation, merger, conveyance, transfer or lease shall
be permitted by this Section unless prior thereto the Guarantor shall have
delivered to the Trustee a Guarantor's Officers' Certificate and an Opinion of
Counsel, each stating that the Guarantor's obligations hereunder shall remain in
full force and effect thereafter.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED FOR ISSUER. Upon any
consolidation by the Issuer with or merger of the Issuer into any other Person
or any conveyance, transfer or lease of all or substantially all of the
properties and assets of the Issuer to any Person in accordance with Section
801, the successor Person formed by such consolidation or into which the Issuer
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such successor Person had
been named as the Issuer herein; and thereafter, except in the case of a lease,
the predecessor Person shall be released from all obligations and covenants
under this Indenture, the Securities and the Coupons.
SECTION 803. GUARANTOR MAY CONSOLIDATE, ETC. Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Guarantor with or into any other Person or
Persons (whether or not affiliated with the Guarantor), or successive
consolidations or mergers in which either the Guarantor will he the continuing
entity or the Guarantor or its successor or successors shall be a party or
parties, or shall prevent any conveyance, transfer or lease of all or
substantially all of the property of the Guarantor, to any other Person (whether
or not affiliated with the Guarantor); provided, however, that:
(1) in case the Guarantor shall consolidate with or merge into
another Person or convey, transfer or lease all or substantially all of
its properties and assets to any Person, the entity formed by such
consolidation or into which the Guarantor is merged or the Person which
acquires by conveyance or transfer, or which leases, all or substantially
all of the properties and assets of the Guarantor shall be a Person
organized and existing under the laws of the United States of America, any
stale thereof or the District of Columbia and shall expressly assume, by
an indenture (or indentures, if at such time there is more than one
Trustee) supplemental hereto, executed and delivered by the Issuer and the
successor Person to the Trustee, in form satisfactory other Trustee, the
obligation of the Guarantor
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under the Guarantee and the performance of every other covenant of this
Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) each of the Guarantor arid the successor Person has delivered to
the Trustee a Guarantor's Officers' Certificate and an Opinion of Counsel,
each stating that such consolidation, merger, conveyance, transfer or
lease and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 804. SUCCESSOR PERSON SUBSTITUTED FOR GUARANTOR. Upon any
consolidation or merger or any conveyance, transfer or lease of all or
substantially all of the properties and assets of the Guarantor to any Person in
accordance with Section 803, the successor Person formed by such consolidation
or into which the Guarantor is merged or to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Guarantor under this Indenture with the same effect as
if. it such successor Person had been named as the Guarantor herein, and
thereafter, except in the case of a lease to another Person, the predecessor
Person shall be released from all obligations and covenants under this
indenture.
SECTION 805. ASSUMPTION BY GUARANTOR. The Guarantor, or a subsidiary
thereof that is a Corporation, may directly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, any premium and
interest on and any Additional Amounts with respect to all the Guaranteed
Securities and the performance of every covenant of this Indenture on the part
of the Issuer to be performed or observed. Upon any such assumption, the
Guarantor or such subsidiary shall succeed to, and be substituted for and may
exercise every right and power of, the Issuer under this Indenture with the same
effect as if the Guarantor or such subsidiary had been named as the Issuer
herein and the Issuer shall be released from all obligations and covenants with
respect to the Guaranteed Securities. No such assumption shall be permitted
unless the Guarantor has delivered to the Trustee (i) a Guarantor's Officers'
Certificate and an Opinion of Counsel, each stating that such assumption and
supplemental indenture comply with this Article, and that all conditions
precedent herein provided for relating to such transaction have been complied
with and that, in the event of assumption by a subsidiary, the Guarantee and all
other covenants of the Guarantor herein remain in full force and effect and (ii)
an opinion of independent counsel that she Holders of Guaranteed Securities or
related Coupons (assuming such orders are only
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taxed as residents of the United States) shall have no United States federal tax
consequences as a result of such assumption, and that, if any Securities are
then listed on the New York Stock Exchange, that such Securities shall not be
delisted as a result of such assumption.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Issuer (when
authorized by or pursuant to a Board Resolution), the Guarantor (when authorized
by a Guarantor's Board Resolution) and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, for any of the
following purposes;
(1) to evidence the succession of another Person to the Issuer or
the Guarantor and the assumption by any such successor of the covenants of
the Issuer or the Guarantor, as the case may be, herein and in the
Securities contained; or
(2) to add to the covenants of the Issuer or the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Issuer or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); PROVIDED, HOWEVER, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the immediate
enforcement upon such default or may limit the remedies available to the
Trustee upon such default or may limit the right of the Holders of a
majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive such
default; or
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(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, provided, that any such action shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 202 and 301, including the
provisions and procedures relating to Securities convertible into Common
Stock or Preferred Stock, as the case may be; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such provisions shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons of any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the
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Holders of Securities of such series and any related coupons or any other
series of Securities if any material respect; or
(11) to effect the assumption by the Guarantor or a subsidiary
thereof pursuant to Section 805.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities of any series, by Act of said Holders delivered to
the Issuer, the Guarantor (if Securities are Guaranteed Securities) and the
Trustee, the Issuer (when authorized by or pursuant to a Board Resolution) the
Guarantor (when authorized by or pursuant to a Guarantor's Board Resolution) if
applicable, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture, as it relates
to such series or of modify in any manner the rights of the Holders of
Securities of such series and any related coupons under this Indenture;
PROVIDED, HOWEVER, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security;
or reduce the principal amount thereof or the rate or amount of interest
thereon or any Additional Amounts payable in respect thereof; or any
premium payable upon the redemption thereof; or change any obligation of
the Issuer to pay Additional Amounts pursuant to Section 1010 (except as
contemplated by Section 801(i) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option of
the Holder of any Security, or change any Place of Payment where, or the
currency or currencies, currency unit or units or composite currency or
currencies in which, any Security or any premium or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
any such payment on or after the Maturity thereof (or, in the ease of
redemption or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any
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waiver with respect to such series (or compliance with certain provisions
of this indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirement of Section 1504
for quorum or voting, or
(3) modify or effect in any manner adverse to the Holders the terms
and conditions of the obligations of the Guarantor in respect of the due
and punctual payments of principal of, or any premium or interest on or
any sinking fund requirements or Additional Amounts with respect to,
Guaranteed Securities, or
(4) modify any of the provisions of this Section, Section 513 or
Section 1010, except to increase the required percentage to effect such
action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution
of an supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
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SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of an
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Issuer covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities; and coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1010 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Issuer, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issuable only as Registered Securities, the Issuer or the Guarantor
(if any Guaranteed Securities are Outstanding) shall maintain in each Place of
Payment for any series of Securities (but not Bearer Securities, except as
otherwise provided in clause (B) below, unless such place of payment is located
outside the United States) an office or agency where Securities of that series
may be presented or surrendered for payment or conversion, where Securities of
that series may be surrendered for registration of transfer or exchange, and
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where notices and demands to or upon the Issuer or the Guarantor (if any of the
Guaranteed Securities are Outstanding) in respect of the Securities of that
series and this Indenture may be served. If Securities of a series are issuable
as Bearer Securities, the Issuer or the Guarantor (if any of the Guaranteed
Securities are Outstanding) will maintain (A) in the Borough of Manhattan, the
City of New York, an office or agency where any Registered Securities of that
series may be presented or surrendered for payment or conversion, where any
Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange, where
notices and demands to or upon the Issuer in respect of the Securities of that
series and this Indenture may be served and where Bearer Securities of that
series and related coupons may be presented or surrendered for payment or
conversion in the circumstances described in the following paragraph (and not
otherwise); (B) subject to and laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 1010) or
conversion; PROVIDED, HOWEVER, that if the Securities of that series are listed
on The Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or an other stock exchange located outside the United
States and such stock exchange shall so require, the Issuer or the Guarantor (if
any Guaranteed Securities are Outstanding) will maintain a Paying Agent for the
Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
of that series are listed on such exchange; and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer, where Securities of
that series may be surrendered for exchange and where notices and demands to or
upon the Issuer in respect of the Securities of that series and this Indenture
may be served. The Issuer and the Guarantor (if any Guaranteed Securities are
Outstanding) will give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency. If at any time the
Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereto, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Bearer Securities of that series pursuant to Section 1022) or
conversion at the offices specified in the Security in London, England; and the
Issuer and the Guarantor (if any Guaranteed Securities are Outstanding) hereby
appoints the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Issuer and the Guarantor (if any
Guaranteed Securities are Outstanding) hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
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Unless otherwise specified with respect to any Securities pursuant
to Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) in
the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in Dollars,
payment of principal and any premium and interest on any Bearer Security
(including any additional Amounts Payable on Securities of such series pursuant
to Section 1010) shall be made at the office of the Issuer's or the Guarantor
(if any Guaranteed Securities are Outstanding) Paying Agent in the Borough of
Manhattan, the City of New York, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States maintained for such
purpose by the Issuer in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designation; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Issuer or the Guarantor (if any Guaranteed
Securities are Outstanding) of its obligation to maintain an office or agency in
accordance with the requirements set forth above for Securities of any series
for such Purposes. The Issuer or the Guarantor (if any Guaranteed Securities are
Outstanding) will give prompt written notice to the Trustee of any, such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities
pursuant to Section 301 with respect to a series of Securities, the Issuer and
the Guarantor (if any Guaranteed Securities are Outstanding) hereby designates
as a Place of Payment for each series of Securities the office or agency of the
Issuer or the Guarantor (if any Guaranteed Securities are Outstanding) in the
Borough of Manhattan, the City of New York, and initially appoints the Trustee
at its Corporate Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant
to Section 302, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency
or so long as it is required under any other provision of this Indenture, then
the Issuer will maintain with respect to each such series of Securities, or as
so required, at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If
the Issuer shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, by no later than
11:00 a.m. Eastern Time on the
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day prior to each due date of the principal of (and premium, if any), or
interest on or Additional Amounts in respect of, any of the Securities of that
series, segregate and holder in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay the principal (and premium, if any) or interest
or Additional Amounts so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on or Additional
Amounts in respect of any Securities of that Series, deposit with a Paying Agent
a sum (in the currency or currencies, currency unit or units or composite
currency or currencies described in the preceding paragraph) sufficient to pay
the principal (and premium, if any) or interest or Additional Amount, so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts and
(unless such Paying Agent is the Trustee) the Issuer will promptly notify the
Trustee of its action or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(1) hold all sums held by it for the payment of principal or (and
premium, if any) or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Issuer or the
Guarantor (or any other obligor upon the Securities) in the making of any
such payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Issuer or the Guarantor (with Securities that are Guaranteed
Securities) may at any time, for the purpose of obtaining the satisfaction and
discharge of this indenture or for any other purpose, pay, or by Issuer Order or
Guarantor Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Issuer or such Paying Agent, such sums to
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be held by the Trustee upon the same terms as those upon which such sums were
held by the Issuer or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the Issuer
in trust for the payment of the principal of (and premium, if any) or interest
on, or any Additional Amounts in respect of, any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any),
interest or Additional Amounts has become due and payable shall be paid to the
Issuer upon Issuer Request (or if deposited by the Guarantor, paid to the
Guarantor or Guarantor Request), or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuer and the Guarantor (if the
Securities are Guaranteed Securities) for payment of such principal of (and
premium, it any) or interest on, or any Additional Amounts in respect of such
Security, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer
as trustee thereof; shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Issuer cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer or the Guarantor, as the case may be.
SECTION 1004. EXISTENCE. Subject to Article Eight, the Issuer and
the Guarantor will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights (declaration and statutory)
and franchises; PROVIDED, HOWEVER, that the Issuer or the Guarantor shall not be
required to preserve any right or franchise if the Board or the Guarantor's
Board of Directors, respectively, shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the issuer and that the
loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. STATEMENT AS TO COMPLIANCE. The Issuer and the
Guarantor will each deliver to the Trustee, within 120 days after the end of
each of their respective fiscal year, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
of the General Partner or the Guarantor, respectively, as to his or her
knowledge of the Issuer's or the Guarantor's compliance with all conditions and
covenants under this Indenture and in the event of any noncompliance, specifying
such noncompliance and the nature and status thereof. For purposes of this
Section 1006, such compliance shall be determined without regard to any period
of grace or requirement of notice under this Indenture.
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SECTION 1006. MAINTENANCE OF PROPERTIES. The Issuer shall cause all
of its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order, 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, notwithstanding
anything herein to the contrary, the Issuer and its Subsidiaries may sell or
otherwise dispose of any of their properties for value in the ordinary course of
business.
SECTION 1007. INSURANCE. The Issuer shall cause each of its
properties and each of the properties of its Subsidiaries to be insured against
loss of damage with insurers of recognized responsibility, in commercially
reasonable amounts and types and with insurers having a specified rating from a
recognized insurance rating service.
SECTION 1008. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer and the
Guarantor shall pay or discharge or cause to be paid or discharged, before the
same shall become delinquent (i) all taxes, assessments and governmental charges
levied or imposed upon the Issuer, the Guarantor or any Subsidiary or upon the
income, profits or property of the Issuer, the Guarantor or any Subsidiary, and
(ii) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon property of the Issuer, the Guarantor or any
Subsidiary; PROVIDED, HOWEVER, notwithstanding anything herein to the contrary
that neither, the Issuer nor the Guarantor shall not be required to pay or
discharge or cause to be paid or discharged any tax, assessment, charge or claim
whose amount or applicability is being contested in good faith.
SECTION 1009. ADDITIONAL AMOUNTS. If any Securities of a series
provide for the payment of Additional Amounts, the Issuer and the Guarantor (if
the Securities are Guaranteed Securities) will pay to the Holder of any Security
of such series or any upon appertaining thereto Additional Amounts as may be
specified as contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context except in the case of Section 502(1), the payment of
the principal of or any premium or interest on, or in respect of; any Security
of any series or payment of any related coupon or the net proceeds received on
the statement or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts provided by the
terms of such series established pursuant to Section 301 to the extent that, in
such context3 Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
20 days prior to
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the first Interest Payment Date with respect to that series of Securities (or if
the Securities of that series will not bear interest prior to Maturity, the
first day on which a payment of principal and any premium is made) and at least
10 days prior to each date of payment of principal and any premium or interest
if there has been any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Issuer or the Guarantor, as the case
may be, will furnish the Trustee and the Issuer's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who arc not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in the Securities
of the series. If any such withholding shall be required, then such Officers
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series or related coupons
and the Issuer and the Guarantor (if the Securities are Guaranteed Securities)
will pay to the Trustee or such Paying Agent the Additional Amounts required by
the terms of such Securities. In the event that the Trustee or any Paying Agent,
as the case may be, shall not so receive the above-mentioned certificate then
the Trustee or such Paving Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal or
interest with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a series or
related coupons without withholding or deductions until otherwise advised. The
Issuer and the Guarantor each covenant to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them or in reliance on
any officers, Certificate finished pursuant to this Section or in reliance on
the Issuer or the Guarantor not furnishing such an Officers' Certificate.
SECTION 1010. WAIVER OF CERTAIN COVENANTS. The Issuer or the
Guarantor, as the case may be, may omit in any particular instance to comply
with any term, provision or condition set forth in Sections 1004 or 1005, before
or after the time for such compliance the Holders of at least a majority in
principal amount of all Outstanding Securities of each series, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to
or affect such covenant or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Issuer and
the Guarantor and the duties of the Trustee in respect of an such term,
provision or condition shall remain in full force and effect.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of
the Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer of less than
all of the Securities of any series, the Issuer shall, at least 45 days prior to
the giving of the notice of redemption in Section 1104 (unless a shorter notice
shall be satisfactory to the Trustee in its sole discretion), notify the
Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Issuer shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If
less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series or a denomination larger than the minimum authorized denomination
for Securities or that series. The Trustee shall promptly notify the Issuer and
the Security Registrar (if other than itself) in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be reviewed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be
given in the manner provided in Section 106 and may be further specified in an
indenture
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supplemental hereto, not less than 30 days nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified by the terms of such
series established pursuant to Section 301, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to the
Holder any Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not a Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if
any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will receive,
without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities together in
the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any, or for conversion,
(7) that the redemption is for a sinking fund, if such is the case,
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(8) that unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date or
the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Issuer,
the Trustee for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of any such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Issuer, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing conversion
price or rate, and the date and time when the option to convert shall
expire.
Notice of redemption of Securities to be redeemed shall be given by
the Issuer or, at the Issuer's request, by the Trustee in the name and at the
expense of the Issuer.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to 11:00 a.m.
Eastern Time on the date prior to any Redemption Date, the Issuer shall deposit
with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own
Paying Agent, which it may not do in the case of a sinking fund payment under
Article Twelve, segregate and hold in trust as provided in Section 1003) an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay on the Redemption Date the
Redemption Price of and (except if the Redemption Date shall be an interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 far the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Issuer shall default
in the
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payment of the Redemption Price and accrued interest) such Securities shall, if
the same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Issuer at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon representation and surrender of
coupons for such interest; and PROVIDED, FURTHER, that except as other wise
provided with respect to Securities convertible into Common Stock or Preferred
Stock, installments of interest on Registered Securities whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more predecessor Securities registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307. If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Issuer and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless if thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made from
the Redemption Price, such Holder shall be entitled to receive the amount so
deducted; PROVIDED, HOWEVER, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If an Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security
which is to be redeemed only in part pursuant to the provisions of this Article
or of Article Twelve) shall be surrendered at a Place of Payment therefor (with,
if the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by the Holder thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without charge a new Security or Securities of the same
series, of any authorized denomination as requested by such Holder in aggregate
principal amount
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equal to and in exchange for the unredeemed portion of the principal of the
Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of Securities
of a series except as otherwise specified as contemplated by Section 301 for
Securities of such series. The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a
"mandatory sinking fund payment", and any payment in excess of such minimum
amount provided for by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the terms
of any Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENT WITH SECURITIES.
The Issuer may, in satisfaction of all or any part of any mandatory sinking fund
payment with respect to the Securities of a series, (1) deliver Outstanding
Securities of such series (other than any previously called for redemption)
together in the case of any Bearer Securities of such series with any unmatured
coupons appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Issuer pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities, or which have otherwise been acquired by the
Issuer; provided that such Securities so delivered or applied as a credit have
not been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified in
such Securities for redemption through operation of the sinking fund and the
amount of such mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less
than 60 days prior to each sinking and payment date for Securities of any
series, the Issuer will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, or portion thereof; if any,
which is to be Satisfied by payment of cash in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such
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series are payable except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof; if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuring mandatory
sinking fund payment, the Issuer shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such Sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereto to be given in the name of and at the expense of the
Issuer in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities, if any, and except as
otherwise specified by the terms of such series established pursuant to Section
301 in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof; together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Issuer covenants that on or the day prior to the Repayment
Date it will deposit with the Trustee or with a Paying Agent (or, if the Issuer
is acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of;
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof; as the case may be, to be
repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of
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the Holder, the Trustee must receive at the Place of Payment therefor specified
in the terms of such Security (or at such other place or places of which the
Issuer shall from time to time notify the Holders of such securities) not
earlier than 60 days nor later than 30 days prior to the Repayment Date (1) the
Security so providing for any such repayment together with the Option to Elect
Repayment form on the reverse thereof duly completed by the Holder or by the
Holder's attorney duly authorized in writing or (2) a telegram, facsimile
transmission or a letter from a member of a national securities exchange, or the
National Association of Securities Dealers, Inc. ("NASD"), or a commercial bank
or trust Issuer in the United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal amount of the
security to be repaid, the CUSIP number, if any, or a description of the tenor
and terms of the Security, a statement that the option to elect repayment is
being exercised thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect Repayment" on the reverse
of the Security. will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, facsimile transmission or letter;
PROVIDED, HOWEVER, that such telegram, facsimile transmission or letter shall
only be effective if such Security and form duly completed are received by the
Trustee by such fifth Business Day. If less than the entire principal amount of
such Security is to be repaid in accordance with the terms of such Security, the
principal amount of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, shall be stated in a writing issuing
such Security. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the Issuer.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Issuer on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Issuer shall default in the
payment of such Securities on such Repayment Date) such Securities shall, if the
same were interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be repaid, except to the
extent provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid shall be paid by the Issuer, together with accrued
interest, if any, to the Repayment Date; PROVIDED, HOWEVER, that coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and PROVIDED, FURTHER, that, in
the case of Registered Securities, installments of
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interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Issuer shall default
in the payment thereof) to the Holders of such Securities, or one or more
predecessor Securities, registered as such as the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
issuer and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; PROVIDED, HOWEVER, that interest represented
by coupons shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Security,
without charge and at the expense of the Issuer, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
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ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If; pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of a series under
Section 1402 or (b) covenant defeasance of the Securities of a series under
Section 1403, then the provisions of such Section or Sections, as the case may
be, together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Issuer may at its option by Board Resolution, at any time, with
respect to such Securities and any coupons appertaining thereto, elect to have
Section 1402 (if applicable) or Section 1403 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance with
the conditions set forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise
of the above option applicable to this Section with respect to any Securities of
a series, the Issuer shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Issuer, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Issuer' s obligations with respect
to such Securities under Sections 305, 306, 1002 and 1003 and with respect to
the payment of Additional Amounts. if any, on such Securities as contemplated by
Section 1010, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Fourteen. Subject to compliance with this
Article Fourteen, the Issuer may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Securities and any coupons appertaining thereto.
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SECTION 1403. COVENANT DEFEASANCE. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of a
series, each of the Issuer and the Guarantor (if the Securities are Guaranteed
Securities) shall be released from its obligations under Sections 1004 to 1008,
inclusive, and, if specified pursuant to Section 301, its obligations under any
other covenant, with respect to such Outstanding Securities and any coupons
appertaining thereto and the Guarantee in respect thereof (if the Securities are
Guaranteed Securities), on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to
be not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1008, inclusive, or such other covenant but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Issuer and the
Guarantor, if applicable, may omit to comply with and shall have no liability in
respect of any term, condition or 'imitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to an such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute
a default or an Event of Default under Section 501(4) or 501(8) or otherwise, as
the case may be, but except as specified above, the remainder of this Indenture
and such Securities and any coupons appertaining thereto and the Guarantee in
respect thereof (if the Securities are Guaranteed Securities), shall be
unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of a series and any coupons appertaining thereto
and the Guarantor in respect thereof (if the Securities are Guaranteed
Securities):
(a) The Issuer or the Guarantor (if the Securities are
Guaranteed Securities) shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and
any coupons appertaining thereto, (1) an amount in such currency,
currencies or currency unit in which such Securities and any coupons
appertaining hereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment of principal of (and premium, if
any) and interest, it any, on such Securities and any coupons appertaining
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thereto, or (2) Government Obligations applicable to such Securities and
coupons appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity)
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than the
due date of any payment of principal of (and premium or Make-Whole
Premium, if any) and interest, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a combination thereof, if
any case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a
nationally recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, (i) the principal (and premium, if any)
and interest, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
Payments or analogous payments applicable to such Outstanding Securities
any coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Issuer or the
Guarantor (if the Securities are Guaranteed Securities) is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(6) and
501(7) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Issuer
or the Guarantor (if the Securities are Guaranteed Securities) shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer
or the Guarantor (if the Securities are Guaranteed Securities) has
received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall
confirm that, the Holders or such Outstanding Securities and any coupons
appertaining thereto will not
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recognize income, gain or loss or Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Issuer
or the Guarantor (if the Securities are Guaranteed Securities) shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining
thereto will not recognize income, gain or loss for Federal income tax
purposes as a result of such covenant defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred.
(f) The Issuer or the Guarantor (if the Securities are
Guaranteed Securities) shall have delivered to the Trustee an Officers'
Certificate or a Guarantor's Officer's Certificate and an Opinion of
Counsel, each stating that all conditions precedent to the defeasance
under Section 1402 or the covenant defeasance under Section 1403 (as the
case may be) have been complied with and an Opinion of Counsel to the
effect that either (i) as a result of a deposit pursuant to subsection (a)
above and the related exercise of the Issuer's option under Section 1402
or Section 1403 (as the case may be), registration is not required under
the Investment Company Act of 1940, as amended, by the Issuer, with
respect to the trust funds representing such deposit or by the Trustee for
such trust funds or (ii) all necessary registrations under said Act have
been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Issuer or the Guarantor (if the Securities are Guaranteed
Securities) in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the Proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own
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Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and if any premium) and interest an Additional Amounts,
if any, but such money be not be segregated from other funds except to the
extent required by law.
Unless otherwise specified with respect to an Security pursuant to
Section 301, if; after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be fully discharged and satisfied
through the payment of the principal of (and premium, if any), and interest, if
any, on such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the currency or currency unit in which such Security becomes payable as a
result of such election based on the applicable market exchange rate for such
currency or currency unit in effect on the second Business Day prior to each
payment date, or, with respect to a Conversion Event, in effect for such
currency or currency unit (as nearly as feasible) at the time of the Conversion
Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon Issuer
Request, or the Guarantor, as the case may be, upon the Guarantor Request, any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
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ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting
of Holders of Securities of any series may be called at any time and from time
to time pursuant to this Article to make give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place in the Borough of Manhattan, The City
of New York or, if Securities of such series have been issued in whole or
in part as Bearer Securities, in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting
forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to
the date fixed for the meeting.
(b) In case at any time the Issuer (pursuant to a Board
Resolution) the Guarantor (if the Securities are Guaranteed Securities)
pursuant to a Guarantors' Board Resolution or the Holders of at least
twenty-five percent (25%) in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee
shall not have made the first mailing 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, the
Guarantor, if applicable, or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and
the place in the Borough of Manhattan, The City of New York or, if
Securities of such series have been issued in whole or in part as Bearer
Securities, in London for such meeting and may call such meeting for such
purposes of waiving notice thereof as provided in subsection (a) of this
Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled
to vote at any meeting of Holders of Securities of any series, a person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in
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writing as Proxy for a Holder or Holders of one or more Outstanding Securities
of such series by such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel, any representatives of the
Guarantor and its counsel and any representatives of the Issuer and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
PROVIDED, HOWEVER, that if any action is to be taken at such meeting with
respect to a consent or waiver which this indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal amount
of the Outstanding Securities of a series, the Persons entitled to vote such
specified percentage in principal amount of the Outstanding Securities of such
series shall constitute a quorum. In the absence of a quorum within 30 minutes
after the time appointed for any such meeting, the meeting shall, if convenes at
the request of Holders of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not less than 10 days
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the outstanding Securities of that series;
PROVIDED, HOWEVER, that, except as limited by the provisions of Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of such
a series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the
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Holders of Securities of such series and the related coupons, whether or not
present or represented at the meeting. Notwithstanding the foregoing provisions
of this Section 1504, if any action is to be taken at a meeting of Holders of
Securities of any series with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action that this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage in
principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made1 given or
taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHT; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of a series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and
in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be
proved in the manner specified in Section 104 and the appointment of any
proxy shall be proved in the manner specified in Section 104 or having the
nature of the Person executing the proxy witnessed or guaranteed by any
trust Issuer, bank or banker authorized by Section 104 to certify to the
holding of Bearer Securities. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid or genuine without the proof specified in Section 104 or other
proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Issuer or by Holders of Securities as provided in Section
l502(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
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permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented
at the meeting, and the meeting may he so adjourned without further
notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETING. The
vote upon any resolution submitted to any meeting of Holders of Securities of
any series shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities of such series or of their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record, at least in duplicate, of
the proceedings of each meeting of Holders of Securities of any Series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504.
Each copy shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be delivered to
the Issuer and the Guarantor and another to the Trustee to be reserved by the
Trustee the latter to have attached thereto the Ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters
therein stated.
This Indenture may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
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ARTICLE XVI
GUARANTEE
SECTION 1601. GUARANTEE. The Guarantee set forth in this Article
Sixteen shall only be in effect with respect to Securities of a series to the
extent such Guarantee is made applicable to such series in accordance with
Section 301. The Guarantor hereby unconditionally guarantees to each Holder of a
Guaranteed Security authenticated and delivered by the Trustee the due and
punctual payment of the principal of, any premium and interest on, and any
Additional Amounts with respect to such Guaranteed Security and the due and
punctual payment of the sinking fund payments (if any) provided for pursuant to
the terms of such Guaranteed Security, when and as the same shall become due and
payable, whether at maturity, by acceleration, redemption, repayment or
otherwise, in accordance with the terms of such Security and of this Indenture.
In case of the failure of the Issuer punctually to pay any such principal,
premium, interest, Additional Amounts or sinking fund payment, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at maturity, upon acceleration,
redemption, repayment or otherwise, and as if such payment were made by the
Issuer.
The Guarantor hereby agrees that is obligations hereunder shall be
as principal and not merely as surety, and shall be absolute, irrevocable and
unconditional, irrespective of, and shall be unaffected by, any invalidity,
irregularity or unenforceability of any Guaranteed Security or this Indenture,
any failure to enforce the provisions of any Guaranteed Security or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the Holder of such Guaranteed Security or the Trustee, the
recovery of any judgment against the Issuer or any action to enforce the same,
or any other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, protest or notice with respect to any such
Guaranteed Security or the Indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be discharged except by
payment in full of the principal of, any premium and interest on, and any
Additional Amounts and sinking fund payments required with respect to, the
Guaranteed Securities and the complete performance of all other obligations
contained in the Guaranteed Securities.
This Guarantee shall continue to be effective or be reinstated, as
the case may be, if at any time payment on any Guaranteed Security, in whole or
in part, is restricted or must otherwise be restored to the Issuer or the
Guarantor upon the bankruptcy, liquidation or reorganization of the Issuer or
otherwise.
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The Guarantor shall be subrogated to all rights of the Holder of any
Guaranteed Security against the Issuer in respect of any amounts paid to such
Holder by the Guarantor pursuant to the provisions of this Guarantee; provided,
however, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of, any premium an interest on, and any Additional Amounts and
sinking fund payments required with respect to, all Guaranteed Securities shall
have been paid in full.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed and attested as of the day and year first above written:
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation, its
General Partner
By: /s/ BARRY LEFKOWITZ
------------------------------------------
Name: Barry Lefkowitz
Title: Executive Vice President and Chief
Financial Officer
Attest:
/s/ ROGER W. THOMAS
- -----------------------
Name: Roger W. Thomas
Title: Secretary of Mack-Cali
Realty Corporation
MACK-CALI REALTY CORPORATION
By: /s/ BARRY LEFKOWITZ
-----------------------
Name: Barry Lefkowitz
Title: Executive Vice President and Chief
Financial Officer
Attest:
/s/ ROGER W. THOMAS
- ----------------------
Name: Roger W. Thomas
Title: Secretary of Mack-Cali
Realty Corporation
WILMINGTON TRUST COMPANY
By: /s/ JAMES D. NESCI
------------------
Name: James D. Nesci
Title: Authorized Signer
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO
RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST PAYABLE
PRIOR TO THE EXCHANGE DATE
(Insert title or sufficient description of Securities to be delivered).
This is to certify that, as of the date, hereof, and except as set
forth below the above captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial Institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institutions hereby agrees, on its own behalf or through its agent,
that you may advise Mack-Cali Realty, L.P. or its agent that such financial
institutions will comply with the requirements of Section l65(j)(3)(A),(B) or
(C) of the United States Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institutions) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(l)(i)(D)(7),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable
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statement herein is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as of such date.
This certificate excepts and does not relate to (U.S. $)_____ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. if administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated 19__
(To be dated no earlier than the 15th day prior to (i) the Exchange
Date or (ii) the relevant Interest Payment Date occurring prior to the Exchange
Date, as applicable)
(Name of Person Making Certification)
(AUTHORIZED SIGNATORY)
- ------------------------------------
Name:
Title:
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<PAGE>
MACK-CALI REALTY, L.P.,
ISSUER
to
WILMINGTON TRUST COMPANY
TRUSTEE
-------------------------
Supplemental Indenture No. 1
Dated as of March 16, 1999
-------------------------
$300,000,000
of
7.00% Notes due 2004
and
$300,000,000
of
7.25% Notes due 2009
<PAGE>
SUPPLEMENTAL INDENTURE NO. 1, dated as of March 16, 1999 (the
"Supplemental Indenture"), between MACK-CALI REALTY, L.P., a limited partnership
duly organized and existing under the laws of the State of Delaware (herein
called the "Issuer"), and WILMINGTON TRUST COMPANY, a Delaware banking
corporation duly organized and existing under the laws of the State of Delaware,
as Trustee (herein called the "Trustee").
RECITALS OF THE ISSUER
The Issuer and Mack-Cali Realty Corporation, a corporation duly
organized and existing under the laws of the State of Maryland (herein called
the "Corporation"), have heretofore delivered to the Trustee an Indenture dated
as of March 16, 1999 (the "Original Indenture"), a form of which has been filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, as an exhibit to the Issuer's Registration Statement on Form S-3
(Registration No. 333-57103), providing for the issuance from time to time of
Debt Securities of the Issuer (the "Securities").
Section 301 of the Original Indenture provides for various matters
with respect to any series of Securities issued under the Original Indenture to
be established in an indenture supplemental to the Original Indenture.
Section 901(7) of the Original Indenture provides for the Issuer and
the Trustee to enter into an indenture supplemental to the Original Indenture to
establish the form or terms of Securities of any series as provided by Sections
201 and 301 of the Original Indenture.
The Board of Directors of Mack-Cali Realty Corporation, the general
partner of the Issuer, has duly adopted resolutions authorizing the Issuer to
execute and deliver this Supplemental Indenture.
All the conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of each of
the series of Securities provided for herein by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Notes or of either series thereof, as follows:
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ARTICLE ONE
RELATION TO ORIGINAL INDENTURE; DEFINITIONS
Section 1.1 RELATION TO ORIGINAL INDENTURE.
This Supplemental Indenture constitutes an integral part of the
Original Indenture.
Section 1.2 DEFINITIONS.
For all purposes of this Supplemental Indenture, except as otherwise
expressly provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the Original Indenture; and
(2) All references herein to Articles and Sections, unless otherwise
specified, refer to the corresponding Articles and Sections of this
Supplemental Indenture.
"Acquired Indebtedness" means Indebtedness of a Person (i) existing
at the time such Person becomes a Subsidiary or (ii) assumed in connection with
the acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed
to be incurred on the date of the related acquisition of assets from any Person
or the date the acquired Person becomes a Subsidiary.
"Annual Service Charge" for any period means the aggregate interest
expense for such period in respect of, and the amortization during such period
of any original issue discount of, Indebtedness of the Issuer and its
Subsidiaries.
"Business Day" means any day, other than a Saturday or Sunday, that
is neither a legal holiday nor a day on which banking institutions in the City
of New York or Delaware are authorized or required by law, regulation or
executive order to close.
"Consolidated Income Available for Debt Service" for any period
means Earnings from Operations of the Issuer and its Subsidiaries plus amounts
which have been deducted, and minus amounts which have been added, for the
following (without duplication): (i) interest on Indebtedness of the Issuer and
its Subsidiaries, (ii) provision for taxes of the Issuer and its Subsidiaries
based on income, (iii) amortization of debt discount and deferred financing
costs, (iv) prov-
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isions for gains and losses on properties and depreciation and amortization, (v)
increases in deferred taxes and other non-cash items, (vi) depreciation and
amortization with respect to interests in joint venture and partially owned
entity investments, (vii) the effect of any charge resulting from a change in
accounting principles in determining Earnings from Operations for such period
and (viii) amortization of deferred charges.
"Corporate Trust Office" means the office of the Trustee at which,
at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at Rodney Square North,
1100 North Market Street, Wilmington, Delaware 19890-0001, Attention: Corporate
Trust Administrator and, for purposes of the Place of Payment provisions of
Sections 305 and 1002 of the Original Indenture, is located at Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
"Earnings from Operations" for any period means net income
excluding provisions for gains and losses on sales of investments or joint
ventures, extraor dinary and non-recurring items, and property valuation
losses, as reflected in the consolidated financial statements of the Issuer
and its Subsidiaries for such period determined in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security
interest of any kind.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder by the Commission.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Indebtedness" of the Issuer or any Subsidiary means, without
duplication, any indebtedness of the Issuer or any Subsidiary, whether or not
contingent, in respect of: (i) borrowed money or evidenced by bonds, notes,
debentures or similar instruments whether or not such indebtedness is secured by
any Encumbrance existing on property owned by the Issuer or any Subsidiary, (ii)
indebtedness for borrowed money of a Person other than the Issuer or a
Subsidiary which is secured by any Encumbrance existing on property owned by the
Issuer or any Subsidiary, to the extent of the lesser of (x) the amount of
indebtedness so secured and (y) the fair market value of the property subject to
such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise,
in connection with any
4
<PAGE>
letters of credit actually issued or amounts representing the balance
deferred and unpaid of the purchase price of any property or services, except
any such balance that constitutes an accrued expense or trade payable, or
(iv) any lease of property by the Issuer or any Subsidiary as lessee which is
reflected on the Issuer's consolidated balance sheet as a capitalized lease
in accordance with GAAP; and also includes, to the extent not otherwise
included, any obligation by the Issuer or any Subsidiary to be liable for, or
to pay, as obligor, guarantor or otherwise (other than for purposes of
collection in the ordinary course of business), Indebtedness of another
Person (other than the Issuer or any Subsidiary; it being understood that
Indebtedness shall be deemed to be incurred by the Issuer or any Subsidiary
whenever the Issuer or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof; Indebtedness of a Subsidiary of
the Issuer existing prior to the time it became a Subsidiary of the Issuer
shall be deemed to be incurred upon such Subsidiary's becoming a Subsidiary
of the Issuer; and Indebtedness of a person existing prior to a merger or
consolidation of such person with the Issuer or any Subsidiary of the Issuer
in which such person is the successor to the Issuer or such Subsidiary shall
be deemed to be incurred upon the consummation of such merger or
consolidation; provided, however, the term "Indebtedness" shall not include
any such indebtedness that has been the subject of an "in substance"
defeasance in accordance with GAAP).
"Intercompany Indebtedness" means Indebtedness to which the only
parties are the Issuer, the Corporation and any Subsidiary (but only so long as
such Indebtedness is held solely by any of the Issuer, the Corporation and any
Subsidiary) that is subordinate in right of payment to the Notes.
"Make-Whole Premium" means, in connection with any optional
redemption of any Notes, the excess, if any, of (i) the aggregate present value
as of the date of such redemption of each dollar of principal of such Notes
being redeemed and the amount of interest (exclusive of interest accrued to the
date of redemption) that would have been payable in respect of such dollar if
such redemption had not been made, determined by discounting, on a semi-annual
basis, such principal and interest at the Reinvestment Rate (determined on the
third Business Day preceding the date such notice of redemption is given) from
the respective dates on which such principal and interest would have been
payable if such redemption had not been made, over (ii) the aggregate principal
amount of such Notes being redeemed.
"Notes" has the meaning specified in Section 2.1 hereof.
"Reinvestment Rate" means .25% (twenty-five one hundredths of one
percent) plus the arithmetic mean of the yields under the respective headings
"This Week" and "Last Week" published in the Statistical Release under the
caption "Treasury Constant Maturities" for the maturity (rounded to the nearest
month) corresponding to the remaining life to maturity of such Notes, as of the
payment date of the principal of such Notes being redeemed. If no maturity
exactly corresponds to
5
<PAGE>
such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the immediately
preceding sentence and the Reinvestment Rate shall be obtained by linear
interpolation, rounding in each of such relevant periods to the nearest month.
For such purposes of calculating the Reinvestment Rate, the most recent
Statistical Release published prior to the date of determination of the
Make-Whole Premium shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination of the
Make-Whole Premium, then such other reasonably comparable index which shall be
designated by the Issuer.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of the voting power of the voting equity
securities or the outstanding equity interests of which are owned, directly or
indirectly, by such Person. For the purposes of this definition, "voting equity
securities" means equity securities having voting power for the election of
directors, whether at all times or only so long as no senior class of security
has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated
Real Estate Assets and (ii) all other assets of the Issuer and its Subsidiaries
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated
Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Issuer and its Subsidiaries not subject to an Encumbrance
for borrowed money, determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"2004 Notes" has the meaning specified in Section 2.1 hereof.
"2009 Notes" has the meaning specified in Section 2.1 hereof.
"Undepreciated Real Estate Assets" as of any date means 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.
"Unsecured Indebtedness" means Indebtedness which is not secured by
any Encumbrance upon any of the properties of the Issuer or any Subsidiary.
6
<PAGE>
ARTICLE TWO
THE SERIES OF NOTES
Section 2.1 TITLE OF THE SECURITIES.
There shall be a series of Securities designated the "7.00% Notes
due 2004" (the "2004 Notes") and a series of Securities designated the "7.25%
Notes due 2009" (the "2009 Notes" and, together with the 2004 Notes, the
"Notes").
Section 2.2 LIMITATION ON AGGREGATE PRINCIPAL AMOUNT.
The aggregate principal amount of the 2004 Notes shall be limited to
$300,000,000, and, except as provided in this Section and in Section 306 of the
Original Indenture, the Issuer shall not execute and the Trustee shall not
authenticate or deliver 2004 Notes in excess of such aggregate principal amount.
The aggregate principal amount of the 2009 Notes shall be limited to
$300,000,000, and, except as provided in this Section and in Section 306 of the
Original Indenture, the Issuer shall not execute and the Trustee shall not
authenticate or deliver 2009 Notes in excess of such aggregate principal amount.
Nothing contained in this Section 2.2 or elsewhere in this Supplemen
tal Indenture, or in the Notes, is intended to or shall limit execution by the
Issuer or authentication or delivery by the Trustee of Notes under the
circumstances contem plated by Sections 303, 304, 305, 306, 906, 1107 and 1305
of the Original Indenture.
Section 2.3 INTEREST AND INTEREST RATES; MATURITY DATE OF NOTES.
The 2004 Notes will bear interest at a rate of 7.00% per annum and
the 2009 Notes will bear interest at a rate of 7.25% per annum, in each case,
from March 16, 1999 or from the immediately preceding Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually in
arrears on March 15 and September 15 of each year, commencing on September 15,
1999 (each, an "Interest Payment Date"), to the Person in whose name such Note
is registered at the close of business on March 1 or September 1 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date
(each, a "Regular Record Date"). Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months. The interest so payable on any
Note which is not punctually paid or duly provided for on any Interest Payment
Date shall forthwith cease to be payable to the Person in whose name such Note
is registered on the relevant Regular Record Date, and such defaulted interest
shall instead be
7
<PAGE>
payable to the Person in whose name such Note is registered on the Special
Record Date or other specified date determined in accordance with the Original
Indenture.
If any Interest Payment Date or Maturity falls on a day that is not
a Business Day, the required payment shall be made on the next Business Day as
if it were made on the date such payment was due and no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date
or Maturity, as the case may be.
The 2004 Notes will mature on March 15, 2004 and the 2009 Notes will
mature on March 15, 2009.
Section 2.4 LIMITATIONS ON INCURRENCE OF INDEBTEDNESS.
(a) The Issuer will not, and will not permit any Subsidiary to,
incur any Indebtedness, other than Intercompany Indebtedness, if, immediately
after giving effect to the incurrence of such additional Indebtedness and the
application of the proceeds thereof, the aggregate principal amount of all
outstanding Indebtedness of the Issuer and its Subsidiaries on a consolidated
basis determined in accordance with GAAP is greater than 60% of the sum of
(without duplication) (i) the Total Assets of the Issuer and its Subsidiaries as
of the end of the calendar quarter covered in the Issuer's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the Commission (or, if such filing is not permitted under the Exchange Act,
with the Trustee) prior to the incurrence of such additional Indebtedness and
(ii) the purchase price of any assets included in the definition of Total Assets
acquired, and the amount of any securities offering proceeds received (to the
extent such proceeds were not used to acquire items included in the definition
of Total Assets or used to reduce indebtedness), by the Issuer or any Subsidiary
since the end of such calendar quarter, including those proceeds obtained in
connection with the incurrence of such additional Indebtedness.
(b) In addition to the limitation set forth in subsection (a) of
this Section 2.4, the Issuer will not, and will not permit any Subsidiary to,
incur any Indebtedness if the ratio of Consolidated Income Available for Debt
Service to the Annual Service Charge for the four consecutive fiscal quarters
most recently ended prior to the date on which such additional Indebtedness is
to be incurred shall have been less than 1.5:1, on a PRO FORMA basis after
giving effect thereto and to the application of the proceeds therefrom, and
calculated on the assumption that (i) such Indebtedness and any other
Indebtedness incurred by the Issuer and its Subsidiaries since the first day of
such four-quarter period and the application of the proceeds therefrom,
including to refinance other Indebtedness, had occurred at the beginning of such
period; (ii) the repayment or retirement of any other Indebtedness by the Issuer
and its Subsidiaries since the first day of such four-quarter period had been
repaid or retired at the beginning of such period (except that, in making such
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<PAGE>
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such period); (iii) in the case of Acquired Indebtedness or Indebtedness
incurred in connection with any acquisition since the first day of such
four-quarter period, the related acquisition had occurred as of the first day of
such period with the appropriate adjustments with respect to such acquisition
being included in such PRO FORMA calculation; and (iv) in the case of any
acquisition or disposition by the Issuer or its Subsidiaries of any asset or
group of assets since the first day of such four-quarter period, whether by
merger, stock purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Indebtedness had occurred as of the
first day of such period with the appropriate adjustments with respect to such
acquisition or disposition being included in such PRO FORMA calculation.
(c) In addition to the limitations set forth in subsections (a) and
(b) of this Section 2.4, the Issuer will not, and will not permit any Subsidiary
to, incur any Indebtedness secured by any Encumbrance upon any of the property
of the Issuer or any Subsidiary, whether owned at the date of the Indenture or
thereafter acquired, if, immediately after giving effect to the incurrence of
such additional Indebtedness secured by an Encumbrance and the application of
the proceeds thereof, the aggregate principal amount of all outstanding
Indebtedness of the Issuer and its Subsidiaries on a consolidated basis which is
secured by any Encumbrance on property of the Issuer or any Subsidiary is
greater than 40% of the sum of (without duplication) (i) the Total Assets of the
Issuer and its Subsidiaries as of the end of the calendar quarter covered in the
Issuer's Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, most recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the incurrence of
such additional Indebtedness and (ii) the purchase price of any assets included
in the definition of Total Assets acquired, and the amount of any securities
offering proceeds received (to the extent such proceeds were not used to acquire
items included in the definition of Total Assets or used to reduce Indebted
ness), by the Issuer or any Subsidiary since the end of such calendar quarter,
includ ing those proceeds obtained in connection with the incurrence of such
additional Indebtedness.
(d) The Issuer and its Subsidiaries may not at any time own Total
Unencumbered Assets equal to less than 150% of the aggregate outstanding
principal amount of the Unsecured Indebtedness of the Issuer and its
Subsidiaries on a consolidated basis.
(e) For purposes of this Section 2.4, Indebtedness shall be deemed
to be "incurred" by the Issuer or a Subsidiary whenever the Issuer or such
Subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
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Section 2.5 REDEMPTION.
The Notes may be redeemed at any time at the option of the Issuer,
in whole or in part, at a redemption price equal to the sum of (i) the principal
amount of the Notes being redeemed plus accrued and unpaid interest thereon up
to but not including the Redemption Date and (ii) the Make-Whole Premium, if
any, with respect to such Notes (the "Redemption Price").
Section 2.6 PLACES OF PAYMENT.
The Places of Payment where the Notes may be presented or surren
dered for payment, where the Notes may be surrendered for registration of
transfer or exchange and where notices and demands to and upon the Issuer in
respect of the Notes and the Original Indenture may be served shall be in
Wilmington, Delaware, and the office or agency for such purpose shall initially
be located at the Corporate Trust Office.
Section 2.7 METHOD OF PAYMENT.
Payment of the principal of and interest on the Notes will be made
at the office or agency of the Issuer maintained for that purpose in Wilmington,
Delaware (which shall initially be an office or agency of the Trustee), in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at
the option of the Issuer, payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto located within the United States.
Section 2.8 CURRENCY.
Principal and interest on the Notes shall be payable in Dollars.
Section 2.9 REGISTERED SECURITIES; GLOBAL FORM.
The Notes shall be issuable and transferable in fully registered
form as Registered Securities, without coupons. The 2004 Notes and the 2009
Notes shall each be issued in the form of one or more permanent global
Securities. The deposi tory for the Notes shall be The Depository Trust Company
("DTC"). The Notes shall not be issuable in definitive form except as provided
in Section 305 of the Original Indenture.
10
<PAGE>
Section 2.10 FORM OF NOTES.
The 2004 Notes shall be substantially in the form attached as
Exhibit A hereto. The 2009 Notes shall be substantially in the form attached as
Exhibit B hereto.
Section 2.11 REGISTRAR AND PAYING AGENT.
The Trustee shall initially serve as Security Registrar and Paying
Agent for the Notes.
Section 2.12 DEFEASANCE.
The provisions of Sections 1402 and 1403 of the Original Indenture,
together with the other provisions of Article Fourteen of the Original
Indenture, shall be applicable to the Notes. The provisions of Section 1403 of
the Original Indenture shall apply to the covenants set forth in Sections 2.4
and 2.15 of this Supplemental Indenture and to those covenants specified in
Section 1403 of the Original Indenture.
Section 2.13 EVENTS OF DEFAULT
The provisions of clause (5) of Section 501 of the Original
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
(5) default under any bond, debenture, note, mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any indebtedness (other than non-recourse indebtedness) for money
borrowed by the Issuer (or by any Subsidiary, the repayment of which the Issuer
has guaranteed or for which the Issuer is directly responsible or liable as
obligor or guarantor), having an aggregate principal amount outstanding of at
least $10,000,000, whether such recourse indebtedness now exists or shall
hereafter be created, which default shall have resulted in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled, within a
period of 10 days after there shall have been given written notice, by
registered or certified mail, to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least a majority in principal amount of the
Outstanding Securities of that series specifying such default and requiring the
Issuer to cause such indebtedness to be discharged or cause such acceleration to
be rescinded or annulled and stating that such notice is a "Notice of Default"
hereunder; or
11
<PAGE>
Section 2.14 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
The provisions of the first paragraph of Section 502 of the Original
Indenture as applicable with respect to the Notes shall be deemed to be amended
and restated in their entirety to read as follows:
If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than a majority in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Issuer (and to the Trustee if given by the Holders), and upon any
such declaration such principal or specified portion thereof shall become
immediately due and payable. If an Event of Default with respect to the
Securities of any series set forth in Section 501(6) or (7) of the Original
Indenture occurs and is continuing, then in every such case all the Securities
of that series shall become immediately due and payable, without notice to the
Issuer, at the principal amount thereof (or, if any Securities are Original
Issue Discount Securities or Indexed Securities, such portion of the principal
as may be specified in the terms thereof) plus accrued interest to the date the
Securities of that series are paid plus the Make-Whole Premium, if any, on the
Securities of that series.
Section 2.15 PROVISION OF FINANCIAL INFORMATION.
Whether or not the Issuer is subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will, to the extent permitted under the Exchange Act,
file with the Commission the annual reports, quarterly reports and other
documents which the Issuer would have been required to file with the Commission
pursuant to such Section 13 or 15(d) if the Issuer were so subject, such
documents to be filed with the Commission on or prior to the respective dates
(the "Required Filing Dates") by which the Issuer would have been required so to
file such documents if the Issuer were so subject.
The Issuer will also in any event (x) within 15 days of each
Required Filing Date (i) if the Issuer is not then subject to Section 13 or
15(d) of the Exchange Act, transmit by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders, copies
of the annual reports and quarterly reports which the Issuer would have been
required to file with the Commis sion pursuant to Section 13 or 15(d) of the
Exchange Act if the Issuer were subject to such Sections, and (ii) file with the
Trustee copies of annual reports, quarterly reports and other documents which
the Issuer would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Issuer were subject to such
Sections and (y) if filing such documents by the Issuer
12
<PAGE>
with the Commission is not permitted under the Exchange Act, promptly upon
written request and payment of the reasonable cost of duplication and delivery,
supply copies of such documents to any prospective Holder.
Section 2.16 WAIVER OF CERTAIN COVENANTS.
Notwithstanding the provisions of Section 1010 of the Original
Indenture, the Issuer may omit in any particular instance to comply with any
term, provision or condition set forth in the Original Indenture and in this
Supplemental Indenture and with any other term, provision or condition with
respect to the Notes or either series thereof (except any such term, provision
or condition which could not be amended without the consent of all Holders of
the Notes or such series thereof, as applicable), if before or after the time
for such compliance the Holders of at least a majority in principal amount of
all Outstanding Notes or such series thereof, as applicable, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition. Except to the extent so expressly
waived, and until such waiver shall become effective, the obligations of the
Issuer and the duties of the Trustee in respect of any such term, provision or
condi tion shall remain in full force and effect.
Section 2.17 NO GUARANTY BY THE CORPORATION.
The Guarantee set forth in Article Sixteen of the Original Indenture
shall not be in effect with respect to the Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. RATIFICATION OF ORIGINAL INDENTURE.
Except as expressly modified or amended hereby, the Original
Indenture continues in full force and effect and is in all respects confirmed
and preserved.
SECTION 3.2. GOVERNING LAW.
This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York. This
Supplemental Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and shall, to the extent applicable, be governed by such
provisions.
13
<PAGE>
SECTION 3.3. COUNTERPARTS.
This Supplemental Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the same instrument.
SECTION 3.4. CERTAIN RIGHTS OF TRUSTEE.
Except as otherwise expressly provided herein, no duties,
responsibili ties or liabilities are assumed, or shall be construed to be
assumed, by the Trustee by reason of this Supplemental Indenture. This
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Original Indenture with the same force
and effect as if those terms and conditions were repeated at length herein and
made applicable to the Trustee with respect hereto.
SECTION 3.5. TRUSTEE NOT RESPONSIBLE.
The Trustee shall not be responsible in any manner for or in respect
of the validity or sufficiency of this Supplemental Indenture.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation, its
General Partner
By: /s/ BARRY LEFKOWITZ
-------------------------------------
Name: Barry Lefkowitz
Title: Executive Vice President and
Chief Financial Officer
Attest:
/s/ ROGER W. THOMAS
- ----------------------------------
Name: Roger W. Thomas
Title: Secretary of Mack-Cali
Realty Corporation
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ JAMES D. NESCI
-------------------------------------
Name: James D. Nesci
Title: Authorized Signer
<PAGE>
EXHIBIT A TO
SUPPLEMENTAL INDENTURE
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSI
TORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 55 WATER STREET, NEW YORK,
NEW YORK, TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANS FER,
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.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DE
SCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A
SUCCESSOR DEPOSITORY OR ITS NOMINEE.
Registered No. ________ PRINCIPAL AMOUNT
CUSIP No.: __________ $____________
MACK-CALI REALTY, L.P.
7.00% NOTE DUE 2004
MACK-CALI REALTY, L.P., a limited partnership duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer" which term shall include any Successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of __________
DOLLARS on March 15, 2004, and to pay interest on the outstanding principal
amount thereon from March 16, 1999, or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on March 15 and Septem ber 15 in each year, commencing September 15,
1999, at the rate of 7.00% per annum, until the entire principal hereof is paid
or made available for payment. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest which shall
be the March 1 or September 1 (whether or not a Business Day),
A-1
<PAGE>
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Security is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Securities not more
than 15 days and not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of and interest on this
Security will be made at the office or agency maintained for that purpose in the
City of Wilmington, Delaware or elsewhere as provided in the Inden ture, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at
the option of the Issuer payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Issuer (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of March 16, 1999,
among the Issuer, Mack-Cali Realty Corporation and Wilmington Trust Company,
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), as supplemented by Supplemental Indenture No. 1, dated as of
March 16, 1999 (as so supplemented, herein called the "Indenture"), between the
Issuer and the Trustee to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are authenticated and delivered. This Security is one of the series
desig nated in the first page thereof, limited in aggregate principal amount to
$300,000,000.
Securities of this series may be redeemed at any time at the option
of the Issuer, in whole or in part, upon notice of not more than 60 nor less
than 30 days prior to the Redemption Date, at a redemption price equal to the
sum of (i) the principal amount of the Securities being redeemed plus accrued
and unpaid interest thereon up to but not including the Redemption Date and (ii)
the Make-Whole Premium, if any, with respect to such Securities.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Issuer on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Issuer, in each case,
A-2
<PAGE>
upon compliance by the Issuer with certain conditions set forth in the
Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than a majority in principal amount of
the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any interest on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
A-3
<PAGE>
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of
(and Make-Whole Premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surren dering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evi denced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCOR DANCE WITH THE LAWS OF THE STATE OF NEW YORK.
A-4
<PAGE>
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
A-5
<PAGE>
IN WITNESS WHEREOF, MACK-CALI REALTY, L.P. has caused
this instrument to be duly executed.
Dated: March 16, 1999
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation, its
General Partner
By:
-------------------------------------
Name:
Title:
Attest:
- ----------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Signatory
A-6
<PAGE>
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- -----------------------------------
............................................
- -----------------------------------
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Mack-Cali Realty, L.P. and hereby does irrevocably
constitute and appoint
....................................................................... Attorney
to transfer said Security on the books of the within-named Issuer with full
power of substitution in the premises.
Dated: .............. ........................................................
........................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an institution which
is a member of one of the following recognized signa
ture Guarantee Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) another
guarantee program acceptable to the Trustee.
-------------------------------
Signature Guarantee
================================================================================
A-7
<PAGE>
EXHIBIT B TO
SUPPLEMENTAL INDENTURE
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSI
TORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 55 WATER STREET, NEW YORK,
NEW YORK, TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANS FER,
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.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DE
SCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A
SUCCESSOR DEPOSITORY OR ITS NOMINEE.
Registered No. ________ PRINCIPAL AMOUNT
CUSIP No.: __________ $____________
MACK-CALI REALTY, L.P.
7.25% NOTE DUE 2009
MACK-CALI REALTY, L.P., a limited partnership duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer" which term shall include any Successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of _________
DOLLARS on March 15, 2009, and to pay interest on the outstanding principal
amount thereon from March 16, 1999, or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on March 15 and September 15 in each year, commencing September 15,
1999, at the rate of 7.25% per annum, until the entire principal hereof is paid
or made available for payment. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest which shall
be the March 1 or September 1 (whether or not a Business Day), as the case may
B-1
<PAGE>
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Security is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Securities not more
than 15 days and not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of and interest on this
Security will be made at the office or agency maintained for that purpose in the
City of Wilmington, Delaware, or elsewhere as provided in the Indenture, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at
the option of the Issuer payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Issuer (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of March 16, 1999
among the Issuer, Mack-Cali Realty Corporation and Wilmington Trust Company
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), as supplemented by Supplemental Indenture No. 1, dated as of
March 16, 1999 (as so supplemented, herein called the "Indenture"), between the
Issuer and the Trustee to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are authenticated and delivered. This Security is one of the series
desig nated in the first page thereof, limited in aggregate principal amount to
$300,000,000.
Securities of this series may be redeemed at any time at the option
of the Issuer, in whole or in part, upon notice of not more than 60 nor less
than 30 days prior to the Redemption Date, at a redemption price equal to the
sum of (i) the principal amount of the Securities being redeemed plus accrued
and unpaid interest thereon up to but not including Redemption Date and (ii) the
Make-Whole Premium, if any, with respect to such Securities.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Issuer on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Issuer, in each case,
B-2
<PAGE>
upon compliance by the Issuer with certain conditions set forth in the
Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than a majority in principal amount of
the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any interest on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
B-3
<PAGE>
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of
(and Make-Whole Premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surren dering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evi denced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCOR DANCE WITH THE LAWS OF THE STATE OF NEW YORK.
B-4
<PAGE>
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
B-5
<PAGE>
IN WITNESS WHEREOF, MACK-CALI REALTY, L.P. has caused
this instrument to be duly executed.
Dated: March 16, 1999
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation, its
General Partner
By:
-------------------------------------
Name:
Title:
Attest:
- ----------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Signatory
B-6
<PAGE>
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- -----------------------------------
............................................
- -----------------------------------
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Mack-Cali Realty, L.P. and hereby does irrevocably
constitute and appoint
....................................................................... Attorney
to transfer said Security on the books of the within-named Issuer with full
power of substitution in the premises.
Dated: .............. ........................................................
........................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an institution which
is a member of one of the following recognized signa
ture Guarantee Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) another
guarantee program acceptable to the Trustee.
-------------------------------
Signature Guarantee
================================================================================
B-7
<PAGE>
Exhibit 4.3
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSI
TORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 55 WATER STREET, NEW YORK,
NEW YORK, TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANS FER,
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.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DE
SCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A
SUCCESSOR DEPOSITORY OR ITS NOMINEE.
Registered No. ________ PRINCIPAL AMOUNT
CUSIP No.: __________ $____________
MACK-CALI REALTY, L.P.
7.00% NOTE DUE 2004
MACK-CALI REALTY, L.P., a limited partnership duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer" which term shall include any Successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of __________
DOLLARS on March 15, 2004, and to pay interest on the outstanding principal
amount thereon from March 16, 1999, or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on March 15 and Septem ber 15 in each year, commencing September 15,
1999, at the rate of 7.00% per annum, until the entire principal hereof is paid
or made available for payment. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest which shall
be the March 1 or September 1 (whether or not a Business Day),
1
<PAGE>
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such Regular Record Date, and may either be paid to the Person
in whose name this Security is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Securities not more
than 15 days and not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of and interest on this
Security will be made at the office or agency maintained for that purpose in the
City of Wilmington, Delaware or elsewhere as provided in the Inden ture, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at
the option of the Issuer payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Issuer (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of March 16, 1999,
among the Issuer, Mack-Cali Realty Corporation and Wilmington Trust Company,
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), as supplemented by Supplemental Indenture No. 1, dated as of
March 16, 1999 (as so supplemented, herein called the "Indenture"), between the
Issuer and the Trustee to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are authenticated and delivered. This Security is one of the series
desig nated in the first page thereof, limited in aggregate principal amount to
$300,000,000.
Securities of this series may be redeemed at any time at the option
of the Issuer, in whole or in part, upon notice of not more than 60 nor less
than 30 days prior to the Redemption Date, at a redemption price equal to the
sum of (i) the principal amount of the Securities being redeemed plus accrued
and unpaid interest thereon up to but not including the Redemption Date and (ii)
the Make-Whole Premium, if any, with respect to such Securities.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Issuer on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Issuer, in each case,
2
<PAGE>
upon compliance by the Issuer with certain conditions set forth in the
Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than a majority in principal amount of
the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any interest on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
3
<PAGE>
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of
(and Make-Whole Premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surren dering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evi denced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCOR DANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4
<PAGE>
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
5
<PAGE>
IN WITNESS WHEREOF, MACK-CALI REALTY, L.P. has caused
this instrument to be duly executed.
Dated: March 16, 1999
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation, its
General Partner
By:
-------------------------------------
Name:
Title:
Attest:
- ----------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Signatory
6
<PAGE>
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- -----------------------------------
............................................
- -----------------------------------
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Mack-Cali Realty, L.P. and hereby does irrevocably
constitute and appoint
....................................................................... Attorney
to transfer said Security on the books of the within-named Issuer with full
power of substitution in the premises.
Dated: .............. ........................................................
........................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an institution which
is a member of one of the following recognized signa
ture Guarantee Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) another
guarantee program acceptable to the Trustee.
-------------------------------
Signature Guarantee
================================================================================
7
<PAGE>
Exhibit 4.4
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSI
TORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 55 WATER STREET, NEW YORK,
NEW YORK, TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANS FER,
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.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING SET FORTH IN THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF DTC OR A NOMINEE OF
DTC. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DE
SCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO
A NOMINEE OF DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ITS NOMINEE TO A
SUCCESSOR DEPOSITORY OR ITS NOMINEE.
Registered No. ________ PRINCIPAL AMOUNT
CUSIP No.: __________ $____________
MACK-CALI REALTY, L.P.
7.25% NOTE DUE 2009
MACK-CALI REALTY, L.P., a limited partnership duly organized and
existing under the laws of the State of Delaware (herein referred to as the
"Issuer" which term shall include any Successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, upon presentation, the principal sum of _________
DOLLARS on March 15, 2009, and to pay interest on the outstanding principal
amount thereon from March 16, 1999, or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
in arrears on March 15 and September 15 in each year, commencing September 15,
1999, at the rate of 7.25% per annum, until the entire principal hereof is paid
or made available for payment. The interest so payable and punctually paid or
duly provided for on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security is registered at
the close of business on the Regular Record Date for such interest which shall
be the March 1 or September 1 (whether or not a Business Day), as the case may
1
<PAGE>
be, next preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and may either be paid to the Person in
whose name this Security is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of the Securities not more
than 15 days and not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. Payment of the principal of and interest on this
Security will be made at the office or agency maintained for that purpose in the
City of Wilmington, Delaware, or elsewhere as provided in the Indenture, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER, that at
the option of the Issuer payments of principal and interest on the Notes (other
than payments of principal and interest due at Maturity) may be made (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account of the
Person entitled thereto located within the United States.
Securities of this series are one of a duly authorized issue of
securities of the Issuer (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture, dated as of March 16, 1999
among the Issuer, Mack-Cali Realty Corporation and Wilmington Trust Company
(herein called the "Trustee," which term includes any successor trustee under
the Indenture), as supplemented by Supplemental Indenture No. 1, dated as of
March 16, 1999 (as so supplemented, herein called the "Indenture"), between the
Issuer and the Trustee to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Issuer, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are authenticated and delivered. This Security is one of the series
desig nated in the first page thereof, limited in aggregate principal amount to
$300,000,000.
Securities of this series may be redeemed at any time at the option
of the Issuer, in whole or in part, upon notice of not more than 60 nor less
than 30 days prior to the Redemption Date, at a redemption price equal to the
sum of (i) the principal amount of the Securities being redeemed plus accrued
and unpaid interest thereon up to but not including Redemption Date and (ii) the
Make-Whole Premium, if any, with respect to such Securities.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Issuer on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default applicable
to the Issuer, in each case,
2
<PAGE>
upon compliance by the Issuer with certain conditions set forth in the
Indenture, which provisions apply to this Security.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
written notice to the Trustee of a continuing Event of Default with respect to
the Securities, the Holders of not less than a majority in principal amount of
the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any interest on or after the
respective due dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Issuer and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series of Securities then Outstanding affected
thereby. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Issuer with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and binding
upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of (and Make-Whole
Premium, if any) and interest on this Security at the times, place and rate, and
in the coin or currency, herein prescribed.
3
<PAGE>
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Issuer in any Place of Payment where the principal of
(and Make-Whole Premium, if any) and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Issuer and the Security Registrar duly executed by the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surren dering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be overdue, and neither the
Issuer, the Trustee nor any such agent shall be affected by notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any indebtedness
evi denced hereby or thereby, shall be had against any promoter, as such, or
against any past, present or future shareholder, officer or director, as such,
of the Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of this Security by the Holder thereof and as part of the
consideration for the issue of the Securities of this series.
All capitalized terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCOR DANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4
<PAGE>
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuer has caused "CUSIP" numbers to be
printed on the Securities of this series as a convenience to the Holders of such
Securities. No representation is made as to the correctness or accuracy of such
CUSIP numbers as printed on the Securities, and reliance may be placed only on
the other identification numbers printed hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
5
<PAGE>
IN WITNESS WHEREOF, MACK-CALI REALTY, L.P. has caused
this instrument to be duly executed.
Dated: March 16, 1999
MACK-CALI REALTY, L.P.
By: Mack-Cali Realty Corporation, its
General Partner
By:
-------------------------------------
Name:
Title:
Attest:
- ----------------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
-------------------------------------
Authorized Signatory
6
<PAGE>
================================================================================
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby
sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY OR OTHER IDENTIFYING
NUMBER OF ASSIGNEE
- -----------------------------------
............................................
- -----------------------------------
................................................................................
(Please Print or Typewrite Name and Address including
Zip Code of Assignee)
................................................................................
the within Security of Mack-Cali Realty, L.P. and hereby does irrevocably
constitute and appoint
....................................................................... Attorney
to transfer said Security on the books of the within-named Issuer with full
power of substitution in the premises.
Dated: .............. ........................................................
........................................................
NOTICE: The signature to this assignment must correspond with the name as it
appears on the first page of the within Security in every particular, without
alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an institution which
is a member of one of the following recognized signa
ture Guarantee Programs: (i) The Securities Transfer
Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) another
guarantee program acceptable to the Trustee.
-------------------------------
Signature Guarantee
================================================================================
7
