KING & SPALDING
191 PEACHTREE STREET
ATLANTA, GEORGIA 30303-1763
TELEPHONE: 404/572-4600
FACSIMILE: 404/572-5100
DIRECT DIAL: DIRECT FAX:
404/572-3595 404/572-5146
September 13, 1996
VIA EDGAR
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Cousins Properties Incorporated -Registration Statement on Form S-3
Ladies and Gentlemen:
On behalf of Cousins Properties Incorporated, a Georgia corporation (the
"Company"), we attach hereto for filing electronically under the Securities Act
of 1933, as amended, the Registration Statement on Form S-3 (the "Registration
Statement") with exhibits.
The Company has sent to the Securities and Exchange Commission by wire
transfer the aggregate amount of $68,966.00 in payment of the requisite filing
fee.
Please call the undersigned with any questions concerning the attached
materials.
Very truly yours,
/s/ Alan J. Prince
Alan J. Prince
Attachments
cc: Tom G. Charlesworth
Peter A. Tartikoff
Kelly H. Barrett
Tony W. Rothermel
1730 PENNSYLVANIA AVENUE, N.W. 120 WEST 45TH STREET 1100 LOUISIANA STREET,
WASHINGTON, DC 20006-4706 NEW YORK, NY 10036-4003 SUITE 3300
TELEPHONE: 202/737-0500 TELEPHONE: 212/556-2100 HOUSTON, TX 77002-5219
FACSIMILE: 202/626-3737 FACSIMILE: 212/556-2222 TELEPHONE: 713/751-3200
FACSIMILE: 713/751-3290
<PAGE>
As filed with the Securities and Exchange Commission on September 13, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
______________
COUSINS PROPERTIES INCORPORATED
(Exact name of Registrant as specified in its charter)
Georgia
(State or other jurisdiction of incorporation or organization)
58-086952
(I.R.S. Employer Identification No.)
____________________
2500 Windy Ridge Parkway
Atlanta, Georgia 30339
(770) 955-2200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
____________________
Tom G. Charlesworth with a copy to:
Senior Vice President, General Counsel
and Secretary Alan J. Prince, Esq.
Cousins Properties Incorporated King & Spalding
2500 Windy Ridge Parkway 191 Peachtree Street
Atlanta, Georgia 30339 Atlanta, Georgia 30303-1763
(770) 955-2200 (404) 572-4600
(Name, address, including zip code, and telephone number, including area code,
of agent for service) ____________________
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. X
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. ___
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ___
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. ____
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. ____
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
CALCULATION OF REGISTRATION FEE
===============================================================================
Title of Class of Proposed Maximum Aggregate Amount of
Securities to be Registered Offering Price(1)(2) Registration Fee
===============================================================================
Common Stock(3)
Warrants(3) $200,000,000 $68,966(4)
Debt Securities(3)
===============================================================================
(1) In no event will the aggregate maximum offering price of all securities
registered under this Registration Statement exceed $200,000,000. Such
amount includes any consideration to be received for Common Stock issued
upon exercise of the Warrants. Any securities registered hereunder may be
sold separately or as units with other securities registered hereunder.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D. of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder.
(3) Subject to footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock, Warrants and Debt
Securities as may be sold, from time to time, by Cousins Properties
Incorporated. Cousins Properties Incorporated also is registering hereunder
an indeterminate number of shares of Common Stock as may be issued upon
exercise of the Warrants registered hereby.
(4) Fee calculated pursuant to Rule 457(o).
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to securities which may be offered from
time to time by Cousins Properties Incorporated (the "Company"). This
Registration Statement contains a form of basic prospectus (the "Basic
Prospectus") relating to the Company which will be used in connection with one
or more offerings of securities by the Company. The specific terms of the
securities to be offered will be set forth in a Prospectus Supplement relating
to such securities.
<PAGE>
================================================================================
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
================================================================================
SUBJECT TO COMPLETION, DATED SEPTEMBER 13, 1996
PROSPECTUS
$200,000,000
COUSINS PROPERTIES INCORPORATED
Common Stock, Warrants and Debt Securities
Cousins Properties Incorporated (the "Company") may from time to time offer
in one or more series or classes (i) shares of its common stock, par value $1.00
per share (the "Common Stock"), (ii) warrants to purchase shares of its Common
Stock (the "Warrants") and (iii) unsecured, non-convertible debt securities
("Debt Securities"), with an aggregate public offering price of up to
$200,000,000 (or its equivalent in another currency based on the exchange rate
at the time of sale) in amounts, at prices and on terms to be determined at the
time of offering. The Common Stock, Warrants and Debt Securities (collectively,
the "Securities") may be offered, separately or together, in separate series in
amounts, at prices and on terms to be set forth in one or more supplements to
this Prospectus (each, a "Prospectus Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and
will include, where applicable (i) in the case of Common Stock, any initial
public offering price; (ii) in the case of Warrants, the duration, offering
price, exercise price and detachability thereof, as well as the terms of which
such Warrants may be exercised; and (iii) in the case of Debt Securities, the
specific title, aggregate principal amount, currency, form (which may be
registered or bearer, or certificated or global), authorized denominations,
maturity, rate (or manner of calculation thereof) and time of payment of
interest, terms for redemption at the option of the Company or repayment at the
option of the holder, terms for sinking fund payments, covenants and any initial
public offering price. In addition, such specific terms may include limitations
on direct or beneficial ownership and restrictions on transfer of the
Securities, in each case as may be appropriate to preserve the status of the
Company as a real estate investment trust ("REIT") for Federal income tax
purposes.
The applicable Prospectus Supplement also will contain information, where
applicable, about certain United States Federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities covered
by such Prospectus Supplement.
The Securities may be offered directly, through agents designated from time
to time by the Company, or to or through underwriters or dealers. If any agents
or underwriters are involved in the sale of any of the Securities, their names,
and any applicable purchase price, fee, commission or discount arrangement
between or among them, will be set forth, or will be calculable from the
information set forth, in the applicable Prospectus Supplement. See "Plan of
Distribution." No Securities may be sold without delivery of the applicable
Prospectus Supplement describing the method and terms of the offering of such
series of Securities.
_____________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION THE CONTRARY IS A CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
_____________
The date of this Prospectus is , 1996.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company may be examined without
charge at, or copies obtained upon payment of prescribed fees from, the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and are also available for inspection and copying at the
regional offices of the Commission located at Seven World Trade Center, New
York, New York 10048 and at 500 West Madison Street, Chicago, Illinois
60661-2511. The Commission maintains a Web site (http://www.sec.gov) that
contains reports, proxy and information statements and other information
regarding the Company. In addition, the Company's Common Stock is listed on the
New York Stock Exchange and such material also can be inspected and copied at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
The Company has filed with the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations promulgated thereunder, with respect to the Securities. This
Prospectus, which is part of the Registration Statement, does not contain all of
the information set forth in the Registration Statement and the exhibits and
financial schedules thereto. For further information concerning the Company and
the Securities, reference is made to the Registration Statement and the exhibits
and schedules filed therewith, which may be examined without charge at, or
copies obtained upon payment of prescribed fees from, the Commission and its
regional offices at the locations listed above. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and, in
each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company (File No. 2-20111)
with the Commission are incorporated herein by reference:
(a) the Company's Annual Report on Form 10-K for the year ended December
31, 1995;
(b) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1996 and June 30, 1996;
(c) the description of the Common Stock of the Company included in the
Company's Registration Statement on Form 8-A (File No. 1-11312), dated August 4,
1992, including any amendment or report filed for the purpose of updating such
description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus and made a part hereof from the
date of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other document subsequently filed with the
Commission which also is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon the written or oral
request of such person, a copy of any or all of the documents incorporated by
reference herein (not including the exhibits to such documents, unless such
exhibits are specifically incorporated by reference in such documents). Requests
for such copies should be directed to: Cousins Properties Incorporated, 2500
Windy Ridge Parkway, Atlanta, Georgia 30339, Attention: Secretary; telephone:
(770) 955-2200.
THE COMPANY
The Company is an Atlanta-based, fully-integrated equity real estate
investment trust ("REIT"). The Company has extensive experience in the real
estate industry, including experience in acquiring, financing, developing,
managing and leasing properties. The Company owns a portfolio of well-located,
high-quality office and retail developments and several tracts of
strategically-located, undeveloped land. The Company's properties are
concentrated in the southeastern United States, primarily in the Atlanta area.
Office. As of June 30, 1996, the Company owned, directly or indirectly,
equity interests of at least 50% in 15 high-quality commercial office buildings
(including two buildings under construction), with aggregate rentable space of
approximately 4.9 million square feet.
Retail. As of June 30, 1996, the Company also owned, directly or
indirectly, 100% equity interests in 10 retail shopping centers (including two
centers under construction) and a 50% equity interest in one other retail
shopping center.
Other. As of June 30, 1996, the Company also owned, directly or indirectly,
equity interests in approximately 475 acres of strategically-located land in the
metropolitan Atlanta area at North Point and Wildwood Office Park which is held
for investment and future development. In addition, the Company holds two
mortgage notes totaling $27 million secured by a 250,000 square foot office
building located in Washington, D.C.
As of June 30, 1996, the Company had outstanding indebtedness of $257.8
million (including its pro rata share of unconsolidated joint venture debt and
intercompany debt). Any applicable Prospectus Supplement relating to offered
Securities will set forth the outstanding indebtedness of the Company as of a
recent date.
The Company, a Georgia corporation, was founded in 1958 and has been a
public company since 1962. The Company became a REIT in 1987, and its Common
Stock has been listed on the New York Stock Exchange since 1992. The Company's
executive offices are located at 2500 Windy Ridge Parkway, Suite 1600, Atlanta,
Georgia 30339, and its telephone number is (770) 955-2200.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement, the
Company intends to use the net proceeds of any sale of Common Stock, Warrants or
Debt Securities for general corporate purposes, including, without limitation,
the acquisition and development of additional properties and the repayment of
debt, including joint venture debt. Pending application of such net proceeds,
the Company will invest such proceeds in interest-bearing accounts and
short-term, interest-bearing securities, which are consistent with the Company's
intention to continue to qualify for taxation as a REIT.
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for the six months ended
June 30, 1996 was 2.37, for the year ended December 31, 1995 was 2.68, for the
year ended December 31, 1994 was 3.87, for the year ended December 31, 1993 was
1.72, for the year ended December 31, 1992 was 1.72 and for the year ended
December 31, 1991 was 1.31. There was no preferred stock outstanding for any of
the periods shown above. Accordingly, the ratio of earnings to combined fixed
charges and preferred stock dividends is identical to the ratio of earnings to
fixed charges.
For purposes of computing these ratios, earnings have been calculated by
adding fixed charges, excluding capitalized interest, to pre-tax income from
continuing operations. Fixed charges consist of interest costs, whether expensed
or capitalized, the interest component of rental expense and amortization of
debt issuance costs.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued under an Indenture (the "Indenture")
between the Company and a Trustee (the "Trustee") chosen by the Company and
qualified to act as Trustee under the Trust Indenture Act of 1939, as amended
(the "TIA"). The Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part and will be available for
inspection at the corporate trust office of the trustee or as described above
under "Available Information." The Indenture is subject to, and governed by, the
TIA. The statements made hereunder relating to the Indenture and the Debt
Securities to be issued thereunder are summaries of certain provisions thereof
and do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the Indenture and such Debt
Securities. All section references appearing herein are to sections of the
Indenture.
General
The Debt Securities will be direct, unsecured obligations of the Company
and will rank equally with all other unsecured and unsubordinated indebtedness
of the Company. At June 30, 1996, the total outstanding debt of the Company
(including the Company's pro rata share of unconsolidated joint venture debt)
was $257.8 million. Of such outstanding debt, $234.8 million was fixed rate
mortgage debt. The Debt Securities may be issued without limit as to aggregate
principal amount, in one or more series, in each case as established from time
to time in or pursuant to authority granted by a resolution of the Board of
Directors of the Company or as established in one or more indentures
supplemental to the Indenture. All Debt Securities of 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 of the Debt Securities of such
series, for issuances of additional Debt Securities of such series (Section
301).
The Indenture provides that there may be more than one Trustee thereunder,
each with respect to one or more series of Debt Securities. Any Trustee under
the Indenture may resign or be removed with respect to one or more series of
Debt Securities, and a successor Trustee may be appointed to act with respect to
such series (Section 608). In the event that two or more persons are acting as
Trustee with respect to different series of Debt Securities, each such Trustee
shall be a trustee of a trust under the Indenture separate and apart from the
trust administered by any other Trustee (Section 609), and, except as otherwise
indicated herein, any action described herein to be taken by a Trustee may be
taken by each such Trustee with respect to, and only with respect to, the one or
more series of Debt Securities for which it is Trustee under the Indenture.
Reference is made to the Prospectus Supplement relating to the series of
Debt Securities offered thereby for the specific terms thereof, including:
(1) the title of such Debt Securities;
(2) the aggregate principal amount of such Debt Securities and any limit on
such aggregate principal amount;
(3) the percentage of the principal amount at which such Debt Securities
will be issued and, if other than the principal amount thereof, the portion of
the principal amount thereof payable upon declaration of acceleration of the
maturity thereof;
(4) the date or dates, or the method for determining such date or dates, on
which the principal of such Debt Securities will be payable;
(5) the rate or rates, or the method by which such rate or rates shall be
determined, at which such Debt Securities will bear interest, if any;
(6) the date or dates, or the method for determining such date or dates,
from which any interest will accrue, the dates on which any such interest will
be payable, the record dates for such interest payment dates, or the method by
which any such date shall be determined, the person to whom such interest shall
be payable, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(7) the place or places where the principal of (and premium, if any),
interest, if any, and additional amounts, if any, on such Debt Securities will
be payable, such Debt Securities may be surrendered for registration of transfer
or exchange and notices or demands to or upon the Company in respect of such
Debt Securities and the Indenture may be served;
(8) the period or periods within which, the price or prices at which, and
the terms and conditions upon which such Debt Securities may be redeemed, as a
whole or in part, at the option of the Company, if the Company is to have such
an option;
(9) the obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities pursuant to any sinking fund or analogous provision or at
the option of a holder thereof, and the period or periods within which, the
price or prices at which, and the terms and conditions upon which such Debt
Securities will be redeemed, repaid or purchased, as a whole or in part,
pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any registered Debt Securities ("Registered
Securities") shall be issuable and, if other than denominations of $5,000 and
any integral multiple thereof, the denomination or denominations in which any
bearer Debt Securities ("Bearer Securities") shall be issuable;
(11) if other than the Trustee, the identity of each security registrar
and/or paying agent;
(12) if other than the principal amount thereof, the portion of the
principal amount of the Debt Securities that shall be payable upon declaration
of acceleration of the maturity thereof or the method by which such portion
shall be determined;
(13) if other than U.S. dollars, the currency or currencies in which
payment of the principal of (and premium, if any) or interest or additional
amounts, if any, on the Debt Securities shall be payable or in which the Debt
Securities shall be denominated;
(14) whether the amount of payments of principal of (and premium, if any)
or interest, if any, on the Debt Securities 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;
(15) whether the principal of (and premium, if any) or interest or
additional amounts, if any, on the Debt Securities are to be payable, at the
election of the Company or a holder (a "Holder") thereof, in a currency or
currencies, currency unit or units or composite currency or currencies other
than that in which such Debt Securities are denominated or stated to be payable,
the period or periods within which, and the terms and conditions upon which,
such election may be made, and the time and manner of, and identity of the
exchange rate agent with responsibility for, determining the exchange rate
between the currency or currencies, currency unit or units or composite currency
or currencies in which such Debt 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 Debt Securities are to be so payable;
(16) provisions, if any, granting special rights to the Holders of the Debt
Securities upon the occurrence of such events as may be specified;
(17) any deletions from, modifications of or additions to the events of
default (the "Events of Default") or covenants of the Company with respect to
the Debt Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth in the Indenture;
(18) whether the Debt Securities 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 may be exchanged for Registered
Securities and vice versa (if permitted by applicable laws and regulations),
whether any Debt Securities are to be issuable initially in temporary global
form and whether any Debt Securities 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 Debt Security may exchange such interests for Debt
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may occur,
and, if Registered Securities are to be issuable as a global Debt Security, the
identity of the depositary for such series;
(19) the date as of which any Bearer Securities and any temporary global
Debt Security representing Outstanding (as hereinafter defined) Debt Securities
shall be dated if other than the date of original issuance of the first Debt
Security of the series to be issued;
(20) the person to whom any interest on any Registered Security shall be
payable, if other than the person in whose name that Debt Security is registered
at the close of business on the applicable record date (the "Regular Record
Date") for such interest, the manner in which, or the person to whom any
interest on any Bearer Security 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 Debt Security on an interest payment date (an "Interest
Payment Date") will be paid;
(21) if the defeasance and covenant defeasance provisions described herein
are to be inapplicable or any modifications of such provisions;
(22) if the Debt Securities to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security) 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;
(23) if the Debt Securities are to be issued upon the exercise of warrants,
the time, manner and place of such Debt Securities to be authenticated and
delivered;
(24) whether and under what circumstances the Company will pay additional
amounts on the Debt Securities in respect of any tax, assessment or governmental
charge and, if so, whether the Company will have the option to redeem such Debt
Securities rather than pay such additional amounts (and the terms of any such
option);
(25) with respect to any Debt Securities that provide for optional
redemption or prepayment upon the occurrence of certain events (such as a change
of control of the Company), (i) the possible effects of such provisions on the
market price of the Company's securities or in deterring certain mergers, tender
offers or other takeover attempts, and the intention of the Company to comply
with the requirements of Rule 14e-l under the Exchange Act and any other
applicable securities laws in connection with such provisions; (ii) whether the
occurrence of the specified events may give rise to cross-defaults on other
indebtedness such that payment on such Debt Securities may be effectively
subordinated; and (iii) the existence of any limitations on the Company's
financial or legal ability to repurchase such Debt Securities upon the
occurrence of such an event (including, if true, the lack of assurance that such
a repurchase can be effected) and the impact, if any, under the Indenture of
such a failure, including whether and under what circumstances such a failure
may constitute an Event of Default; and
(26) any other terms of such Debt Securities not inconsistent with the
terms of the Indenture.
The Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). If material or applicable, special U.S.
Federal income tax, accounting and other considerations applicable to Original
Issue Discount Securities will be described in the applicable Prospectus
Supplement.
Except as described under "-- Merger, Consolidation or Sale" or as may be
set forth in any Prospectus Supplement, the Indenture does not contain any other
provisions that would limit the ability of the Company to incur indebtedness or
that would afford holders of the Debt Securities protection in the event of (i)
a highly leveraged or similar transaction involving the Company, the management
of the Company, or any affiliate of any such party, (ii) a change of control, or
(iii) a reorganization, restructuring, merger or similar transaction involving
the Company that may adversely affect the holders of the Debt Securities. In
addition, subject to the limitations set forth under "-- Merger, Consolidation
or Sale," the Company may, in the future, enter into certain transactions, such
as the sale of all or substantially all of its assets or the merger or
consolidation of the Company, that would increase the amount of the Company's
indebtedness or substantially reduce or eliminate the Company's assets, which
may have an adverse effect on the Company's ability to service its indebtedness,
including the Debt Securities. In addition, restrictions on ownership and
transfers of the Company's Common Stock are designed to preserve its status as a
REIT and, therefore, may act to prevent or hinder a change of control. See
"Description of Common Stock -- Restrictions on Transfer." Reference is made to
the applicable Prospectus Supplement for information with respect to any
deletions from, modifications of or additions to the events of default or
covenants that are described below, including any addition of a covenant or
other provision providing event risk or similar protection.
The applicable Prospectus Supplement will summarize the nature and scope of
any event risk provisions contained in any offered Debt Security, including the
types of events protected by such provisions and any limitations on the
Company's ability to satisfy its obligations under such provisions. The
applicable Prospectus Supplement also will summarize anti-takeover provisions in
other securities of the Company, if any, which could have a material effect on
the offered Debt Securities. Such summary will contain a detailed and
quantifiable definition of any "change in control" provision.
Reference is made to "-- Certain Covenants" below and to the description of
any additional covenants with respect to a series of Debt Securities in the
applicable Prospectus Supplement. Except as otherwise described in the
applicable Prospectus Supplement, compliance with such covenants generally may
not be waived with respect to a series of Debt Securities by the Board of
Directors of the Company or by the Trustee unless the Holders of at least a
majority in principal amount of all outstanding Debt Securities of such series
consent to such waiver, except to the extent that the defeasance and covenant
defeasance provisions of the Indenture described under "-- Discharge, Defeasance
and Covenant Defeasance" below apply to such series of Debt Securities. See "--
Modification of the Indenture."
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities of any series which are Registered Securities, 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 Debt Securities which are Bearer Securities, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in denominations of $5,000 (Section 302).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and premium, if any) and interest on any series of Debt Securities
will be payable at the corporate trust office of the Trustee, provided that, at
the option of the Company, payment of interest may be made by check mailed to
the address of the Person entitled thereto as it appears in the applicable
Security Register or by wire transfer of funds to such Person at an account
maintained within the United States (Sections 301, 307 and 1002).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the Regular Record Date and may
either be paid to the Person in whose name such Debt Security is registered at
the close of business on a special record date (the "Special Record Date") for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to the Holder of such Debt Security not less than 10 days
prior to such Special Record Date, or may be paid at any time in any other
lawful manner, all as more completely described in the Indenture.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the Trustee. In addition,
subject to certain limitations imposed upon Debt Securities issued in book-entry
form, the Debt Securities of any series may be surrendered for registration of
transfer thereof at the corporate trust office of the Trustee. Every Debt
Security surrendered for registration of transfer or exchange shall be duly
endorsed or accompanied by a written instrument of transfer. No service charge
will be made for any registration of transfer or exchange of any Debt
Securities, but the Trustee or the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith (Section 305). If the applicable Prospectus Supplement refers to any
transfer agent (in addition to the Trustee) initially designated by the Company
with respect to any series of Debt Securities, the Company may at any time
rescind the designation of any such transfer agent or approve a change in the
location through which any such transfer agent acts, except that the Company
will be required to maintain a transfer agent in each place of payment for such
series. The Company may at any time designate additional transfer agents with
respect to any series of Debt Securities (Section 1002).
Neither the Company nor the Trustee shall be required (i) to issue,
register the transfer of or exchange any Debt Security if such Debt Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Debt Securities to be redeemed and
ending at the close of business on (A) if such Debt Securities are issuable only
as Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Debt Securities are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
such Debt Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Debt Security which has been surrendered for repayment at the
option of the Holder, except the portion, if any, of such Debt Security not to
be so repaid (Section 305).
Merger, Consolidation or Sale
The Company may consolidate with, or sell, lease or convey all or
substantially all of its assets to, or merge with or into, any other entity,
provided that (a) the Company shall be the continuing entity, or the successor
entity (if other than the Company) formed by or resulting from any such
consolidation or merger or which shall have received the transfer of such assets
shall expressly assume payment of the principal of (and premium, if any) and
interest on all the Debt Securities and the due and punctual performance and
observance of all of the covenants and conditions contained in the Indenture;
(b) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any subsidiary of the
Company (a "Subsidiary") as a result thereof as having been incurred by the
Company or such Subsidiary at the time of such transaction, no Event of Default
under the Indenture, and no event which, after notice or the lapse of time, or
both, would become such an Event of Default, shall have occurred and be
continuing; and (c) an officer's certificate and legal opinion covering such
conditions shall be delivered to the Trustee (Sections 801 and 803).
Certain Covenants
Existence. Except as permitted under "-- Merger, Consolidation or Sale,"
the Company is required to do or cause to be done all things necessary to
preserve and keep in full force and effect its existence, rights and franchises;
provided, however, that the Company shall not be required to preserve any right
or franchise if it determines that the preservation thereof is no longer
desirable in the conduct of its business and that the loss thereof is not
disadvantageous in any material respect to the Holders of the Debt Securities
(Section 1006).
Maintenance of Properties. The Company is required to cause all of its
material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and to cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Company and its Subsidiaries
shall not be prevented from selling or otherwise disposing for value their
respective properties in the ordinary course of business (Section 1007).
Insurance. The Company is required to, and is required to cause each of its
Subsidiaries to, keep all of its insurable properties insured against loss or
damage at least equal to their then full insurable value with financially sound
and reputable insurance companies (Section 1008).
Payment of Taxes and Other Claims. The Company is required to pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon its income, profits or property or
that of any Subsidiary, and (ii) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings (Section 1009).
Provision of Financial Information. The Holders of Debt Securities will be
provided with copies of the annual reports and quarterly reports of the Company.
Whether or not the Company is subject to Section 13 or 15(d) of the Exchange Act
and for so long as any Debt Securities are outstanding, the Company will, to the
extent permitted under the Exchange Act, be required to file with the Commission
the annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to such Section 13
or 15(d) (the "Financial Statements") if the Company 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 Company would have been required so
to file such documents if the Company were so subject. The Company will also in
any event (x) within 15 days of each Required Filing Date (i) transmit by mail
to all Holders of Debt Securities, as their names and addresses appear in the
security register for the Debt Securities (the "Security Register"), without
cost to such Holders, copies of the annual reports and quarterly reports which
the Company would have been required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act if the Company were subject to such
Sections and (ii) file with the Trustee copies of the annual reports, quarterly
reports and other documents which the Company would have been required to file
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act if the
Company were subject to such Sections and (y) if filing such documents by the
Company 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
1010).
Additional Covenants. Any additional or different covenants of the Company
with respect to any series of Debt Securities will be set forth in the
Prospectus Supplement relating thereto.
Events of Default, Notice and Waiver
The Indenture provides that the following events are "Events of Default"
with respect to any series of Debt Securities issued thereunder: (a) default for
30 days in the payment of any installment of interest on any Debt Security of
such series; (b) default in the payment of the principal of (or premium, if any,
on) any Debt Security of such series at its maturity; (c) default in making any
sinking fund payment as required for any Debt Security of such series; (d)
default in the performance of any other covenant of the Company contained in the
Indenture (other than a covenant added to the Indenture solely for the benefit
of a series of Debt Securities issued thereunder other than such series), such
default having continued for 60 days after written notice as provided in the
Indenture; (e) default in the payment of an aggregate principal amount exceeding
$5,000,000 of any evidence of recourse indebtedness of the Company or any
mortgage, indenture or other instrument under which such indebtedness is issued
or by which such indebtedness is secured, such default having occurred after the
expiration of any applicable grace period and having resulted in the
acceleration of the maturity of such indebtedness, but only if such indebtedness
is not discharged or such acceleration is not rescinded or annulled; (f) certain
events of bankruptcy, insolvency or reorganization, or court appointment of a
receiver, liquidator or trustee of the Company or any Significant Subsidiary or
any of their respective property; and (g) any other Event of Default provided
with respect to a particular series of Debt Securities. The term "Significant
Subsidiary" means each significant subsidiary (as defined in Regulation S-X
promulgated under the Securities Act) of the Company.
If an Event of Default under the Indenture with respect to Debt 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 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities or Securities, the terms of which provide that the principal amount
thereof payable at maturity may be more or less than the principal face amount
thereof at original issuance ("Indexed Securities"), such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series to be due and payable immediately by written notice
thereof to the Company (and to the Trustee if given by the Holders). However, at
any time after such a declaration of acceleration with respect to Debt
Securities of such series (or of all Debt Securities then Outstanding under the
Indenture, as the case may be) has been made, but before a judgment or decree
for payment of the money due has been obtained by the Trustee, the Holders of
not less than a majority in principal amount of Outstanding Debt Securities of
such series (or of all Debt Securities then Outstanding under the Indenture, as
the case may be) may rescind and annul such declaration and its consequences if
(a) the Company shall have deposited with the applicable Trustee all required
payments of the principal of (and premium, if any) and interest on the Debt
Securities of such series (or of all Debt Securities then Outstanding under the
Indenture, as the case may be), plus certain fees, expenses, disbursements and
advances of the Trustee and (b) all Events of Default, other than the nonpayment
of accelerated principal of (or specified portion thereof), or premium (if any)
or interest on the Debt Securities of such series (or of all Debt Securities
then Outstanding under the Indenture, as the case may be) have been cured or
waived as provided in the Indenture (Section 502). The Indenture also provides
that the Holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series (or of all Debt Securities then
Outstanding under the Indenture, as the case may be) may waive any past default
with respect to such series and its consequences, except a default (x) in the
payment of the principal of (or premium, if any) or interest on any Debt
Security or such series or (y) in respect of a covenant or provision contained
in the Indenture that cannot be modified or amended without the consent of the
Holder of each Outstanding Debt Security affected thereby (Section 513).
The Trustee will be required to give notice to the Holders of Debt
Securities within 90 days of a default under the Indenture unless such default
has been cured or waived; provided, however, that the Trustee may withhold
notice to the Holders of any series of Debt Securities of any default with
respect to such series (except a default in the payment of the principal of (or
premium, if any) or interest on any Debt Security of such series or in the
payment of any sinking fund installment in respect of any Debt Security of such
series) if specified Responsible Officers of the Trustee consider such
withholding to be in the interest of such Holders (Section 601).
The Indenture provides that no Holders of Debt Securities of any series may
institute any proceedings, judicial or otherwise, with respect to the Indenture
or for any remedy thereunder, except in the case of failure of the Trustee, for
60 days, to act after it has received a written request to institute proceedings
in respect of an Event of Default from the Holders of not less than 25% in
principal amount of the Outstanding Debt Securities of such series, as well as
an offer of indemnity reasonably satisfactory to it (Section 507). This
provision will not prevent, however, any holder of Debt Securities from
instituting suit for the enforcement of payment of the principal of (and
premium, if any) and interest on such Debt Securities at the respective due
dates thereof (Section 508).
Subject to provisions in the Indenture relating to the Trustee's duties in
case of default, the trustee is under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any Holders
of any series of Debt Securities then Outstanding under the Indenture, unless
such Holders shall have offered to the Trustee thereunder reasonable security or
indemnity (Section 602). The Holders of not less than a majority in principal
amount of the Outstanding Debt Securities of any series (or of all Debt
Securities then Outstanding under the Indenture, as the case may be) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or of exercising any trust or power
conferred upon the Trustee. However, the Trustee may refuse to follow any
direction which is in conflict with any law or the Indenture, which may involve
the Trustee in personal liability or which may be unduly prejudicial to the
holders of Debt Securities of such series not joining therein (Section 512).
Within 120 days after the close of each fiscal year, the Company must
deliver to the Trustee a certificate, signed by one of several specified
officers of the Company, stating whether or not such officer has knowledge of
any default under the Indenture and, if so, specifying each such default and the
nature and status thereof.
Modification of the Indenture
Modifications and amendments of the Indenture will be permitted to be made
only with the consent of the Holders of not less than a majority in principal
amount of all Outstanding Debt Securities or series of Outstanding Debt
Securities which are affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holders of each such Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or premium (if any) or any installment of interest
on, any such Debt Security; (b) reduce the principal amount of, or the rate or
amount of interest on, or any premium payable on redemption of, any such Debt
Security, or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon declaration of acceleration of the
maturity thereof or would be provable in bankruptcy, or adversely affect any
right of repayment of the holder of any such Debt Security; (c) change the place
of payment, or the coin or currency, for payment of principal of, premium, if
any, or interest on any such Debt Security; (d) impair the right to institute
suit for the enforcement of any payment on or with respect to any such Debt
Security; (e) reduce the above stated percentage of outstanding Debt Securities
of any series necessary to modify or amend the Indenture, to waive compliance
with certain provisions thereof or certain defaults and consequences thereunder
or to reduce the quorum or voting requirements set forth in the Indenture; or
(f) modify any of the foregoing provisions or any of the provisions relating to
the waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the Holders of
such Debt Security (Section 902). A Debt Security shall be deemed outstanding
("Outstanding") if it has been authenticated and delivered under the Indenture
unless, among other things, such Debt Security has been cancelled or redeemed.
The Indenture provides that the Holders of not less than a majority in
principal amount of a series of Outstanding Debt Securities have the right to
waive compliance by the Company with certain covenants relating to such series
of Debt Securities in the Indenture (Section 1013).
Modifications and amendments of the Indenture may be made by the Company
and the Trustee without the consent of any Holder of Debt Securities for any of
the following purposes: (i) to evidence the succession of another Person to the
Company as obligor under the Indenture; (ii) to add to the covenants of the
Company for the benefit of the Holders of all or any series of Debt Securities
or to surrender any right or power conferred upon the Company in the Indenture;
(iii) to add Events of Default for the benefit of the Holders of all or any
series of Debt Securities; (iv) to add or change any provisions of the Indenture
to facilitate the issuance of, or to liberalize certain terms of, Debt
Securities in bearer form, or to permit or facilitate the issuance of Debt
Securities in uncertificated form, provided, that such action shall not
adversely affect the interests of the Holders of the Debt Securities of any
series in any material respect; (v) to change or eliminate any provisions of the
Indenture, provided that any such change or elimination shall become effective
only when there are no Debt Securities Outstanding of any series created prior
thereto which are entitled to the benefit of such provision; (vi) to secure the
Debt Securities; (vii) to establish the form or terms of Debt Securities of any
series; (viii) to provide for the acceptance of appointment by a successor
Trustee or facilitate the administration of the trusts under the Indenture by
more than one Trustee; (ix) to cure any ambiguity, defect or inconsistency in
the Indenture, provided that such action shall not adversely affect the
interests of Holders of Debt Securities of any series in any material respect;
or (x) to supplement any of the provisions of the Indenture to the extent
necessary to permit or facilitate defeasance and discharge of any series of such
Debt Securities, provided that such action shall not adversely affect the
interests of the Holders of the Debt Securities of any series in any material
respect (Section 901).
The Indenture provides that in determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (i) the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of a Debt Security denominated in a foreign currency that shall be deemed
Outstanding shall be the U.S. dollar equivalent, determined on the issue date
for such Debt Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the U.S. dollar equivalent on the issue date of such
Debt Security of the amount determined as provided in (i) above), (iii) the
principal amount of an Indexed Security that shall be deemed Outstanding shall
be the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to the
Indenture; and (iv) Debt Securities owned by the Company or any other obligor
upon the Debt Securities or any affiliate of the Company or of such other
obligor shall be disregarded.
The Indenture contains provisions for convening meetings of the Holders of
Debt Securities of a series (Section 1501). A meeting will be permitted to be
called at any time by the Trustee, and also, upon request, by the Company or the
holders of at least 10% in principal amount of the Outstanding Debt Securities
of such series, in any such case upon notice given as provided in the Indenture
(Section 1502). Except for any consent that must be given by the Holder of each
Debt Security affected by certain modifications and amendments of the Indenture,
any resolution presented at a meeting or adjourned meeting duly reconvened at
which a quorum is present will be permitted to be adopted by the affirmative
vote of the Holders of a majority in principal amount of the Outstanding Debt
Securities of that series; provided, however, that, except as referred to above,
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that 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 Debt Securities of a series may be adopted at a
meeting or adjourned meeting duly reconvened at which a quorum is present by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Debt Securities of that series. Any resolution passed or
decision taken at any meeting of Holders of Debt Securities of any series duly
held in accordance with the Indenture will be binding on all Holders of Debt
Securities of that series. The quorum at any meeting called to adopt a
resolution, and at any reconvened meeting, will be Persons holding or
representing a majority in principal amount of the Outstanding Debt Securities
of a series; provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding Debt
Securities of a series, the Persons holding or representing such specified
percentage in principal amount of the Outstanding Debt Securities of such series
will constitute a quorum (Section 1504).
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of Holders of Debt Securities of any series with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
the Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage in principal amount of all Outstanding Debt 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 Debt Securities of such series that
vote in favor of such request, demand, authorization, direction, notice,
consent, waiver or other action shall be taken into account in determining
whether such request, demand, authorization, direction, notice, consent, waiver
or other action has been made, given or taken under the Indenture (Section
1504).
Discharge, Defeasance and Covenant Defeasance
The Company may discharge certain obligations to Holders of any series of
Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the Trustee, in trust, funds in such currency or
currencies, currency unit or units or composite currency or currencies in which
such Debt Securities are payable in an amount sufficient to pay the entire
indebtedness on such Debt Securities in respect of principal (and premium, if
any) and interest to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be (Sections 1401 and 1404).
The Indenture provides that, if the provisions of Article Fourteen are made
applicable to the Debt Securities of or within any series pursuant to Section
301 of the Indenture, the Company may elect either (a) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay additional amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (b) to be released from its obligations with
respect to such Debt Securities under Sections 1004 to 1011, inclusive, of the
Indenture (including the restrictions described under "Certain Covenants") and
its obligations with respect to any other covenant, and any omission to comply
with such obligations shall not constitute a default or an Event of Default with
respect to such Debt Securities ("covenant defeasance") (Section 1403), in
either case upon the irrevocable deposit by the Company with the Trustee, in
trust, of an amount, in such currency or currencies, currency unit or units or
composite currency or currencies in which such Debt Securities are payable at
the stated maturity date specified thereon ("Stated Maturity"), or Government
Obligations (as defined below), or both, applicable to such Debt Securities
which through the scheduled payment of principal and interest in accordance with
their terms will provide money in an amount sufficient to pay the principal of
(and premium, if any) and interest on such Debt Securities, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the Trustee an Opinion of Counsel (as
specified in the Indenture) to the effect that the Holders of such Debt
Securities will not recognize income, gain or loss for U.S. Federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. 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 or covenant
defeasance had not occurred, and such Opinion of Counsel, in the case of
defeasance, must refer to and be based upon a ruling of the Internal Revenue
Service or a change in applicable United States Federal income tax law occurring
after the date of the Indenture (Section 1404).
"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 Debt 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 Debt Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
Unless otherwise provided in the applicable Prospectus Supplement, if after
the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(a) the Holder of a Debt Security of such series is entitled to, and does, elect
pursuant to the Indenture or the terms of such Debt Security to receive payment
in a currency, currency unit or composite currency other than that in which such
deposit has been made in respect of such Debt Security, or (b) a Conversion
Event (as defined below) occurs in respect of the currency, currency unit or
composite currency in which such deposit has been made, the indebtedness
represented by such Debt Security 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 on such Debt Security as they become due out of
the proceeds yielded by converting the amount so deposited in respect of such
Debt Security into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election or such
Conversion Event based on the applicable market exchange rate. "Conversion
Event" means the cessation of use of (i) a currency, currency unit or composite
currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Community or (iii) any currency
unit or composite currency other than the ECU for the purposes for which it was
established.
Unless otherwise provided in the applicable Prospectus Supplement, all
payments of principal of (and premium, if any) and interest on any Debt Security
that is payable in a foreign currency that ceases to be used by its government
of issuance shall be made in U.S. dollars.
In the event the Company effects covenant defeasance with respect to any
Debt Securities and such Debt Securities are declared due and payable because of
the occurrence of any Event of Default other than the Event of Default described
in clause (d) under "-- Events of Default, Notice and Waiver" with respect to
Sections 1004 to 1011, inclusive, of the Indenture (which Sections would no
longer be applicable to such Debt Securities) or described in clause (g) under
"-- Events of Default, Notice and Waiver" with respect to any other covenant as
to which there has been covenant defeasance, the amount in such currency,
currency unit or composite currency in which such Debt securities are payable,
and Government Obligations on deposit with the Trustee, will be sufficient to
pay amounts due on such Debt Securities at the time of their Stated Maturity but
may not be sufficient to pay amounts due on such Debt Securities at the time of
the acceleration resulting from such event of Default. However, the Company
would remain liable to make payment of such amounts due at the time of
acceleration.
The applicable Prospectus Supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
No Conversion Rights
The Debt Securities will not be convertible into or exchangeable for any
capital stock of the Company.
Global Securities
The Debt Securities of a series may be issued in whole or in part in the
form of one or more global securities (the "Global Securities") that will be
deposited with, or on behalf of, a depositary (the "Depositary") identified in
the applicable Prospectus Supplement relating to such series. Global Securities
may be issued in either registered or bearer form and in either temporary or
permanent form. The specific terms of the depositary arrangement with respect to
a series of Debt Securities will be described in the applicable Prospectus
Supplement relating to such series.
DESCRIPTION OF COMMON STOCK
General
The authorized common stock of the Company includes 50,000,000 shares of
Common Stock, par value $1.00 per share. Each outstanding share of Common Stock
entitles the holder to one vote on all matters presented to shareholders for a
vote. Cumulative voting for the election of directors is not permitted, which
means that holders of more than 50% of the shares of Common Stock voting for the
election of directors can elect all of the directors if they choose to do so and
the holders of the remaining shares cannot elect any directors. Holders of
Common Stock have no preemptive rights. At June 30, 1996, there were 28,503,161
shares of Common Stock outstanding and 3,461,049 shares reserved for issuance
under the Company's various benefit plans.
Shares of Common Stock currently outstanding are listed for trading on the
New York Stock Exchange (the "NYSE") under the symbol "CUZ." The Company will
apply to the NYSE to list the additional shares of Common Stock to be sold
pursuant to any Prospectus Supplement, and the Company anticipates that such
shares will be so listed.
All shares of Common Stock issued will be duly authorized, fully paid, and
nonassessable. Distributions may be paid to the holders of Common Stock if and
when declared by the Board of Directors of the Company out of funds legally
available therefor.
Under Georgia law, shareholders are generally not liable for the Company's
debts or obligations. If the Company is liquidated, subject to the right of any
holders of preferred stock, if any, to receive preferential distributions, each
outstanding share of Common Stock will be entitled to participate pro rata in
the assets remaining after payment of, or adequate provision for, all known
debts and liabilities of the Company.
Provisions of Company's Restated Articles of Incorporation and Bylaws
In addition to any vote otherwise required by applicable law, the Company's
Restated Articles of Incorporation provide that (i) any merger or consolidation
of the Company with or into any other corporation, or (ii) any sale, lease,
exchange, mortgage, pledge, transfer or other disposition (in one transaction or
a series of related transactions) of all or substantially all of the assets of
the Company, or (iii) the adoption of any plan or proposal for the liquidation
or dissolution of the Company, or (iv) any reclassification of securities of the
Company or recapitalization or reorganization of the Company, requires the
affirmative vote of the holders of at least two-thirds of the then outstanding
shares of Common Stock. In addition, any amendment of or addition to the
Restated Articles of Incorporation or the Bylaws of the Company which would have
the effect of amending, altering, changing or repealing the foregoing provisions
of the Restated Articles of Incorporation requires the affirmative vote of the
holders of at least two-thirds of the then outstanding shares of Common Stock.
The provisions of the Restated Articles of Incorporation described above
and those described below under the caption "Restrictions on Transfer" may make
it more difficult, and thereby discourage, attempts to take over control of the
Company, and may make it more difficult to remove incumbent management. None of
these provisions, however, prohibit an offer for all of the outstanding shares
of the Company's Common Stock or a merger of the Company with another entity.
The Board of Directors of the Company has no present plans to adopt any
additional measures which would discourage a takeover or change in control of
the Company.
Restrictions on Transfer
In order for the Company to qualify as a REIT under the Internal Revenue
Code of 1986 (the "Code"), not more than 50% in value of its outstanding Common
Stock may be owned, directly or indirectly, by five or fewer individuals during
the last half of a taxable year, and the Common Stock must be beneficially owned
by 100 or more persons during at least 335 days of a taxable year of 12 months
or during a proportionate part of a shorter taxable year. See "Federal Income
Tax Considerations." Because the Board of Directors believes that it is
essential for the Company to continue to qualify as a REIT, the Board of
Directors has adopted, and the shareholders have approved, provisions of the
Restated Articles of Incorporation restricting the acquisition of shares of
Common Stock.
Article 11 of the Company's Restated Articles of Incorporation generally
prohibits any transfer of shares of Common Stock which would cause the
transferee of such shares to "Own" shares in excess of 3.9% in value of the
outstanding shares of Common Stock (the "Limit"). For purposes of Article 11,
"Ownership" of shares is broadly defined to include all shares that would be
attributed to a "Person" for purposes of applying Section 856(a)(6) of the Code.
A "Person" is broadly defined to include an individual, corporation,
partnership, estate, trust (including a trust qualified under Section 401(a) or
501(c) (1) of the Code), association, private foundation within the meaning of
Section 509(a) of the Code, joint stock company or other entity and also
includes a group as that term is used for purposes of Section 13(d)(3) of the
Exchange Act, but does not include a corporate underwriter which participates in
a public offering of the Company's Common Stock for a period of seven days
following the purchase by such underwriter. "Person" does not include an
organization that qualifies under Section 501(c)(3) of the Code and that is not
a private foundation within the meaning of Section 509(a) of the Code. Article
11 also prohibits any Person, except for Persons who Owned shares in excess of
the Limit on December 31, 1986 ("Prior Owners"), from Owning shares in excess of
the Limit. Article 11 further prohibits Prior Owners (including certain family
members and other persons whose shares are attributed to such Prior Owners under
the relevant sections of the Code) from acquiring any shares not Owned as of
December 31,1986, unless after any such acquisition, such Prior Owner would not
Own a percentage of the value of the Company's outstanding shares of Common
Stock greater than the percentage of the value of the Company's outstanding
shares of Common Stock Owned by such Prior Owner on December 31, 1986,
excluding, for the purpose of calculating such Prior Owner's Ownership
percentage after such acquisition, shares acquired since December 31, 1986
through pro rata stock dividends or splits, shareholder approved stock plans or
from Persons whose shares are attributed to such Prior Owner for determining
compliance with the stock ownership requirement.
If, notwithstanding the prohibitions contained in Article 11, a transfer
occurs which, absent the prohibitions, would have resulted in the Ownership of
shares in excess of the Limit or in excess of those owned by a Prior Owner on
December 31, 1986, such transfer is void and the transferee acquires no rights
in the shares. Shares attempted to be acquired in excess of the Limit or shares
attempted to be acquired by a Prior Owner after December 31, 1986, as the case
may be, would constitute "Excess Shares" under Article 11.
Excess Shares have the following characteristics under Article 11: (i)
Excess Shares shall be deemed to have been transferred to the Company as Trustee
of a trust (the "Trust") for the exclusive benefit of the Person or Persons to
whom the Excess Shares are later transferred, (ii) an interest in the Trust
(representing the number of Excess Shares held by the Trust attributable to the
particular transferee) shall be transferable by the transferee (a) at a price
not exceeding the price paid by such transferee in connection with the transfer
to it or (b) if the shares became Excess Shares in a transaction other than for
value, at a price not exceeding the Market Price (as defined) on the date of
transfer, and only to a Person who could Own the shares without the shares being
deemed Excess Shares, (iii) Excess Shares shall not have any voting rights and
shall not be considered for the purposes of any shareholder vote or of
determining a quorum for such vote, but shall continue to be reflected as issued
and outstanding stock of the Company, (iv) no dividends or distributions shall
be paid with respect to Excess Shares, and any dividends paid in error on Excess
Shares are payable back to the Company upon demand, and (v) Excess Shares shall
be deemed to have been offered for sale to the Company for the period of 90 days
following the date on which the shares become Excess Shares, if notice is given
by the transferee to the Company, or the date on which the Board of Directors
determines that such shares are Excess Shares, if notice is not given by the
transferee to the Company. During such 90-day period, the Company may accept the
offer and purchase any or all of such Excess Shares at the lesser of the price
paid by the transferee and the Market Price (as defined) on the date the Company
accepts the offer to purchase. Before any transfer pursuant to (ii) above, the
Company must (a) be notified, (b) waive its rights to accept the offer to
purchase the Excess Shares, and (c) determine in good faith that the shares do
not constitute Excess Shares in the hands of the transferee.
Under Article 11, if any Person acquires shares in violation of the
prohibitions in Article 11, and the Company would have qualified as a REIT under
the Code but for such acquisition, that Person shall indemnify the Company in an
amount equal to the amount that will put the Company in the same financial
position as it would have been in had it not lost its qualified REIT status.
Such amount includes the full amount of all taxes, penalties, interest imposed
and all costs (plus interest thereon) incurred by the Company as a result of
losing its qualified REIT status. Such indemnification is applicable until the
Company is again able to elect to be taxed as a REIT. If more than one Person
has acquired shares in violation of Article 11 at or prior to the time of the
loss of REIT qualification, then all such Persons shall be jointly and severally
liable for the indemnity.
Article 11 also requires the Board of Directors of the Company to take such
action as it deems advisable to prevent or refuse to give effect to any transfer
or acquisition of the Company's Common Stock in violation of Article 11,
including refusing to make or honor on the books of the Company, or seeking to
enjoin, a transfer in violation of Article 11. Article 11 does not limit the
authority of the Board of Directors to take any other action as it deems
necessary or advisable to protect the Company and the interests of its
shareholders by preserving the Company's qualified REIT status.
Article 11 further requires any Person who acquires or attempts to acquire
shares in violation of Article 11 to give the Company written notice of such
transaction and to provide the Company with such other relevant information as
the Company may request. The Company can request such information from any
Person that it determines, in good faith, is attempting to acquire shares in
violation of Article 11.
All certificates representing shares of Common Stock bear a legend
referring to the restrictions described above.
Limitation of Directors' Liability
The Articles eliminate, subject to certain exceptions, the personal
liability of a director to the Company or its shareholders for monetary damages
for breaches of such director's duty of care or other duties as a director. The
Articles do not provide for the elimination of, or any limitation on, the
personal liability of a director for (i) any appropriation, in violation of the
director's duties, of any business opportunity of the Company, (ii) acts or
omissions which involve intentional misconduct or a knowing violation of law,
(iii) unlawful corporate distributions or (iv) any transaction from which the
director received an improper personal benefit. These provisions of the Articles
will limit the remedies available to a shareholder in the event of breaches of
any director's duties to such shareholder or the Company.
Under Article VI of the Company's Bylaws, the Company is required to
indemnify any person who is made or threatened to be made a party to any pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative and whether formal or informal (including any action by or in
the right of the Company), by reason of the fact that he is or was a director,
officer, agent or employee of the Company against expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such proceeding provided that such
person shall not be indemnified in any proceeding in which he is adjudged liable
to the Company for (i) any appropriation, in violation of his duties, of any
business opportunity of the Company, (ii) acts or omissions which involve
intentional misconduct or knowing violation of law, (iii) unlawful corporate
distributions or (iv) any transaction from which such person received improper
personal benefit. Expenses incurred by any person according to the foregoing
provisions shall be paid by the Company in advance of the final disposition of
such proceeding upon receipt of the written affirmation of such person's good
faith belief that he has met the standards of conduct required under the Bylaws.
Georgia Anti-Takeover Statutes
The Georgia Business Corporation Code ("GBCC") restricts certain business
combinations with "interested shareholders" (as defined below) (the "Business
Combination Statute"), and contains fair price requirements applicable to
certain mergers with certain interested shareholders (the "Fair Price statute").
In accordance with the provisions of these statutes, the Company must elect in
its Articles or Bylaws to be covered by the restrictions imposed by these
statutes. The Company has not elected to be covered by such restrictions;
however, the Company, by action of its Board of Directors without shareholder
approval, may in the future amend its Bylaws to make such an election.
Furthermore, shareholders may amend or repeal the Company's Bylaws or adopt new
Bylaws (even though the Bylaws may also be amended or repealed by the Board of
Directors) and may also expressly provide that any Bylaw so amended or repealed
by them may not be amended or repealed by the Board of Directors.
The Business Combination Statute regulates business combinations such as
mergers, consolidations, share exchanges and asset purchases where the acquired
business has at least 100 shareholders residing in Georgia and has its principal
office in Georgia, as the Company does, and where the acquiror became an
interested shareholder of the corporation, unless either (i) the transaction
resulting in such acquiror becoming an interested shareholder or the business
combination received the approval of the corporation's board of directors prior
to the date on which the acquiror became an interested shareholder, or (ii) the
acquiror became the owner of at least 90% of the outstanding voting shares of
the corporation (excluding shares held by directors, officers and affiliates of
the corporation and shares held by certain other persons) in the same
transaction in which the acquiror became an interested shareholder. For purposes
of the Business Combination Statute and the Fair Price Statute, an "interested
shareholder" generally is any person who directly or indirectly, alone or in
concert with others, beneficially owns or controls 10% or more of the voting
power of the outstanding voting shares of the corporation. The Business
Combination Statute prohibits business combinations with an unapproved
interested shareholder for a period of five years after the date on which such
person became an interested shareholder. The Business Combination Statute is
broad in its scope and is designed to inhibit unfriendly acquisitions.
The Fair Price Statute prohibits certain business combinations between a
Georgia business corporation and an interested shareholder. The Fair Price
Statute would permit the business combination to be effected if (i) certain
"fair price" criteria are satisfied, (ii) the business combination is
unanimously approved by the continuing directors, (iii) the business combination
is recommended by at least two-thirds of the continuing directors and approved
by a majority of the votes entitled to be cast by holders of voting shares,
other than voting shares beneficially owned by the interested shareholder, or
(iv) the interested shareholder has been such for at least three years and has
not increased his ownership position in such three-year period by more than one
percent in any twelve month period. The Fair Price Statute is designed to
inhibit unfriendly acquisitions that do not satisfy the specified "fair price"
requirements.
Other Matters
The transfer agent and registrar for the Common Stock is First Union
National Bank.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Common Stock. The
Warrants may be issued independently or together with any other Securities
offered by any Prospectus Supplement and may be attached to or separate from the
Common Stock. Each series of Warrants will be issued under a separate warrant
agreement (each, a "Warrant Agreement") to be entered into between the Company
and a warrant agent specified in the applicable Prospectus Supplement (the
"Warrant Agent"). The Warrant Agent will act solely as an agent of the Company
in connection with the Warrants of such series and will not assume any
obligation or relationship of agency or trust for or with any holders or
beneficial owners of Warrants. The following sets forth certain general terms
and provisions of the Warrants offered hereby. Further terms of the Warrants and
the applicable Warrant Agreement will be set forth in the applicable Prospectus
Supplement.
The applicable Prospectus Supplement will describe the terms of the
Warrants in respect of which this Prospectus is being delivered, including,
where applicable, the following:
(1) the title of such Warrants;
(2) the aggregate number of such Warrants;
(3) the price or prices at which such Warrants will be issued;
(4) the designation, number and terms of shares of Common Stock
purchasable upon exercise of such Warrants;
(5) the date, if any, on and after which such Warrants and the
related Common Stock will be separately transferable;
(6) the price at which each share of Common Stock purchasable upon
exercise of such Warrants may be purchased;
(7) the date on which the right to exercise such Warrants shall
commence and the date on which such right shall expire;
(8) the minimum or maximum amount of such Warrants which may be
exercised at any one time;
(9) information with respect to book-entry procedures, if any;
(10) a discussion of certain Federal income tax considerations; and
(11) any other terms of such Warrants, including terms, procedures
and limitations relating to the exchange and exercise of such Warrants.
FEDERAL INCOME TAX CONSIDERATIONS
Introductory Notes
The following discussion summarizes certain Federal income tax
considerations that may be relevant to a prospective holder of securities of the
Company. This discussion is based on current law. The discussion is not
exhaustive of all possible tax considerations and does not give a detailed
discussion of any state, local, or foreign tax considerations. It also does not
discuss all of the aspects of Federal income taxation that may be relevant to a
prospective shareholder in light of his particular circumstances or to certain
types of shareholders (including insurance companies, tax-exempt entities,
financial institutions or broker-dealers, foreign corporations and persons who
are not citizens or residents of the United States) who are subject to special
treatment under the Federal income tax laws. As used in this section, the term
"Company" refers solely to Cousins Properties Incorporated.
EACH PROSPECTIVE PURCHASER IS ADVISED TO CONSULT WITH HIS OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OF THE PURCHASE, OWNERSHIP AND
SALE OF SECURITIES IN AN ENTITY ELECTING TO BE TAXED AS A REAL ESTATE INVESTMENT
TRUST, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN, AND OTHER TAX CONSEQUENCES
OF SUCH PURCHASE, OWNERSHIP, SALE, AND ELECTION AND OF POTENTIAL CHANGES IN
APPLICABLE TAX LAWS.
Taxation of the Company
General. Beginning with its taxable year 1987, and for all its subsequent
taxable years, the Company has elected to be taxed as a REIT under Sections 856
through 860 of the Code. The Company's qualification and taxation as a REIT
depends upon the Company's ability to meet on a continuing basis, through actual
annual operating results, distribution levels and diversity of stock ownership,
the various qualification tests and organizational requirements imposed under
the Code, as discussed below. The Company believes that it is organized and has
operated in such a manner as to qualify under the Code for taxation as a REIT,
and the Company intends to continue to operate in such a manner. No assurance,
however, can be given that the Company will operate in a manner so as to qualify
or remain qualified as a REIT. See "Failure to Qualify" below.
The following is a general summary of the Code provisions that govern the
Federal income tax treatment of a REIT and its shareholders. These provisions of
the Code are highly technical and complex. This summary is qualified in its
entirety by the applicable Code provisions, the regulations promulgated
thereunder ("Treasury Regulations"), and administrative and judicial
interpretations thereof.
If the Company qualifies for taxation as a REIT, it generally will not be
subject to Federal corporate income taxes on net income that it currently
distributes to shareholders. This treatment substantially eliminates the "double
taxation" (at the corporate and shareholder levels) that generally results from
investment in a corporation. Notwithstanding its REIT election, however, the
Company will be subject to Federal income tax in the following circumstances.
First, the Company will be taxed at regular corporate rates on any undistributed
taxable income, including undistributed net capital gains. Second, under certain
circumstances, the Company may be subject to the "alternative minimum tax" on
its items of tax preference. Third, if the Company has (i) net income from the
sale or other disposition of "foreclosure property" (which is, in general,
property acquired by foreclosure or otherwise on default of a loan secured by
the property) which is held primarily for sale to customers in the ordinary
course of business or (ii) other non-qualifying income from foreclosure
property, it will be subject to tax at the highest corporate rate on such
income. Fourth, if the Company has net income from prohibited transactions
(which are, in general, certain sales or other dispositions of property (other
than foreclosure property) held primarily for sale to customers in the ordinary
course of business), such income will be subject to a 100% tax. Fifth, if the
Company should fail to satisfy the 75% gross income test or the 95% gross income
test (as discussed below), and has nonetheless maintained its qualification as a
REIT because certain other requirements have been met, it will be subject to a
100% tax on the net income attributable to the greater of the amount by which
the Company fails the 75% or 95% test, multiplied by a fraction intended to
reflect the Company's profitability. Sixth, if the Company should fail to
distribute during each calendar year at least the sum of (i) 85% of its REIT
ordinary income for such year, (ii) 95% of its REIT capital gain net income for
such year, and (iii) any undistributed taxable income from prior years, the
Company would be subject to a 4% excise tax on the excess of such required
distribution over the amounts actually distributed. Seventh, if the Company
acquires any asset from a C corporation (i.e., a corporation generally subject
to full corporate level tax) in a transaction in which the basis of the asset in
the Company's hands is determined by reference to the basis of the asset (or any
other property) in the hands of the C corporation, and the Company recognizes
gain on the disposition of such asset during the 10-year period beginning on the
date on which such asset was acquired by the Company, then, to the extent of
such property's "built-in" gain (the excess of the fair market value of such
property at the time of acquisition by the Company over the adjusted basis of
such property at such time), such gain will be subject to tax at the highest
regular corporate rate applicable (as provided in IRS regulations that have not
yet been promulgated).
Requirements for Qualification. The Code defines a REIT as a corporation,
trust or association (1) which is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by transferable shares or by
transferable certificates of beneficial interest; (3) which would be taxable as
a domestic corporation but for Sections 856 through 859 of the Code; (4) which
is neither a financial institution nor an insurance company subject to certain
provisions of the Code; (5) the beneficial ownership of which is held by 100 or
more persons; (6) during the last half of each taxable year not more than 50% in
value of the outstanding stock of which is owned, directly or indirectly, by
five or fewer individuals (as defined in the Code to include certain entities);
and (7) which meets certain other tests, described below, regarding the nature
of its income and assets. The Code provides that conditions (1) through (4),
inclusive, must be met during the entire taxable year and that condition (5)
must be met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. Conditions (5) and
(6) will not apply until after the first taxable year for which an election is
made to be taxed as a REIT. The Company has issued sufficient shares of Common
Stock with sufficient diversity of ownership to allow the Company to satisfy
requirements (5) and (6). In addition, Article 11 of the Company's Restated
Articles of Incorporation generally prohibits any transfer of shares of stock of
the Company which would cause the transferee of such shares to Own in excess of
3.9% in value of the outstanding shares of Common Stock. Article 11 also
prohibits any person, except Prior Owners, from Owning shares in excess of the
3.9% limit. See "Description of Common Stock -- Restrictions on Transfer." The
Company has obtained a ruling from the Service that the transfer and ownership
restrictions originally contained in Article 11 did not render the shares
nontransferable for REIT qualification purposes and that such restrictions,
while in effect and enforceable, would prevent any actual or attempted violation
of such restrictions from causing the Company to violate the REIT stock
ownership requirements. Following the receipt of such ruling from the Service,
Article 11 was amended generally to allow Prior Owners to acquire additional
shares as long as the Ownership percentage of the Prior Owner after such
acquisition would not exceed such Prior Owners' Ownership percentage as of
December 31, 1986. The Company believes that the amendment has not altered the
efficacy of the transfer restrictions and therefore has not sought a ruling from
the Service regarding such amendment.
In addition, a corporation may not elect to become a REIT unless its
taxable year is the calendar year. The Company's taxable year is the calendar
year.
In the case of a REIT which is a partner in a partnership, Treasury
Regulations provide that the REIT will be deemed to own its proportionate share
of the assets of the partnership and will be deemed to be entitled to the income
of the partnership attributable to such share. In addition, the character of the
assets and gross income of the partnership will retain the same character in the
hands of the REIT for purposes of Section 856 of the Code, including satisfying
the gross income tests and asset tests (as discussed below). The Company owns
interests in a number of subsidiary partnerships (the "Subsidiary
Partnerships"), and thus, the Company's proportionate share of the assets,
liabilities and items of income from the Subsidiary Partnerships are treated as
assets, liabilities and items of income of the Company for purposes of applying
the requirements described herein.
Income Tests. In order to maintain qualification as a REIT, three gross
income requirements must be satisfied annually. First, at least 75% of the
REIT's gross income (excluding gross income from prohibited transactions) for
each taxable year must be derived directly or indirectly from investments
relating to real property or mortgages on real property (including "rents from
real property" and, in certain circumstances, interest) or from certain types of
temporary investments. Second, at least 95% of the REIT's gross income
(excluding gross income from prohibited transactions) for each taxable year must
be derived from such real property investments described above, and from
dividends, interest and gain from the sale or disposition of stock or
securities, or from any combination of the foregoing. Third, short-term gain
from the sale or other disposition of stock or securities, gain from prohibited
transactions and gain on the sale or other disposition of real property held for
less than four years (apart from involuntary conversions and sales of
foreclosure property) must represent less than 30% of the REIT's gross income
(including gross income from prohibited transactions) for each taxable year.
Rents received by the Company will qualify as "rents from real property" in
satisfying the above gross income tests only if several conditions are met.
First, the amount of rent must not be based in whole or in part on the income or
profits of any person. However, an amount received or accrued generally will not
be excluded from "rents from real property" solely by reason of being based on a
fixed percentage or percentages of receipts or sales. Second, rents received
from a tenant will not qualify as "rents from real property" if the Company, or
an owner of 10% or more of the Company, directly or constructively owns 10% or
more of such tenant (a "Related Party Tenant"). Third, if rent attributable to
personal property that is leased in connection with a lease of real property is
greater than 15% of the total rent received under the lease, then the portion of
rent attributable to such personal property will not qualify as "rents from real
property." The Company derives rent from certain tenants which may be based, in
whole or in part, on the net profits of the tenant and derives rent from certain
Related Party Tenants. However, the amount of such nonqualifying rent income is
not material, and the Company has complied and believes it will continue to
comply with the 95% and 75% gross income tests. Finally, for rents received to
qualify as "rents from real property," the Company generally must not operate or
manage the property or furnish or render services to residents, other than
through an "independent contractor" from whom the Company derives no revenue.
The "independent contractor" requirement, however, does not apply to the extent
the services provided by the Company are "usually or customarily rendered" in
connection with the rental of space for occupancy only and are not otherwise
considered "rendered to the occupant." The Company provides certain services
with respect to its properties, and based on the Company's knowledge of the real
estate markets in the geographic regions in which it operates, the Company
believes that all services that are provided to the tenants of the properties
will be considered "usually or customarily" rendered in connection with the
rental of comparable real estate. Further, any noncustomary services will be
provided only through qualifying independent contractors.
The Company manages certain properties held by the Subsidiary Partnerships,
and in return for such services, the Company receives certain management and
accounting fees. The Company has obtained a ruling from the Service that the
portion of such fees that is apportioned to the capital interests of the other
partners constitutes non-qualifying income for purposes of Section 856 of the
Code, and the portion of each fee that is apportioned to the capital interest of
the Company is disregarded for purposes of Section 856 of the Code. The Company
will also receive certain types of non-qualifying income, including any
dividends paid by Cousins Real Estate Corporation ("CREC") to the Company (which
qualify under the 95% gross income test but not under the 75% gross income
test). The Company believes, however, that the aggregate amount of such
non-qualifying income in any taxable year will not cause the Company to exceed
the limits on non-qualifying income under the 75% and 95% gross income tests.
If the Company fails to satisfy one or both of the 75% or 95% gross income
tests for any taxable year, it may nevertheless qualify as a REIT for such year
if it is entitled to relief under certain provisions of the Code. These relief
provisions generally will be available if the Company's failure to meet such
tests was due to reasonable cause and not due to willful neglect, the Company
attaches a schedule of the sources of its income to its return, and any income
information on the schedules was not due to fraud with intent to evade tax. It
is not possible, however, to state whether in all circumstances the Company
would be entitled to the benefit of these relief provisions. As discussed above
in "General," even if these relief provisions were to apply, a tax would be
imposed with respect to the excess net income.
Asset Tests. At the close of each quarter of its taxable year, the Company
must also satisfy three tests relating to the nature of its assets. First, at
least 75% of the value of the Company's total assets must be represented by real
estate assets (including (i) its allocable share of real estate assets held by
the Subsidiary Partnerships and (ii) stock or debt instruments held for not more
than one year purchased with the proceeds of a stock offering or long-term (at
least five years) debt offering of the Company), cash, cash items and government
securities. Second, not more than 25% of the Company's total assets may be
represented by securities other than those in the 75% asset class. Third, of the
investments included in the 25% asset class, the value of any one issuer's
securities owned by the Company may not exceed 5% of the value of the Company's
total assets, and the Company may not own more than 10% of any one issuer's
outstanding voting securities. The 5% test must generally be met for any quarter
in which a REIT acquires securities of an issuer.
The Company owns 100% of the non-voting common stock and 100% of the
cumulative preferred stock of CREC, but does not own any voting stock of CREC.
In addition, the Company does not own more than 10% of any one corporate
issuer's outstanding voting securities. In addition, the Company owns certain
debt securities of CREC. Based on the estimated value of the debt and equity
securities of CREC owned by the Company relative to the estimated value of the
other assets owned (or deemed to be owned through its interests in the
Subsidiary Partnerships) by the Company, the Company believes that the value of
such debt and equity securities at all relevant times has been and is less than
5% of the total value of the Company's assets. However, no independent
appraisals have been obtained to support this conclusion. Although the Company
plans to take steps to ensure that it satisfies the 5% value test for each
calendar quarter, there can be no assurance that such steps will always be
successful or will not require a reduction in the Company's overall interest in
CREC.
Annual Distribution Requirements. The Company, in order to qualify as a
REIT, is required to distribute dividends (other than capital gain dividends) to
its shareholders in an amount at least equal to (A) the sum of (i) 95% of the
Company's "REIT taxable income" (computed without regard to the dividends paid
deduction and the REIT's net capital gain) and (ii) 95% of the net income (after
tax), if any, from foreclosure property, minus (B) the sum of certain items of
noncash income. Such distributions must be paid in the taxable year to which
they relate, or in the following taxable year if declared before the Company
timely files its tax return for such year and if paid on or before the first
regular dividend payment after such declaration. To the extent that the Company
does not distribute all of its net capital gain or distributes at least 95%, but
less than 100%, of its "REIT taxable income," as adjusted, it will be subject to
tax on the undistributed amount at regular capital gains and ordinary corporate
tax rates. Furthermore, if the Company should fail to distribute during each
calendar year at least the sum of (i) 85% of its REIT ordinary income for such
year, (ii) 95% of its REIT capital gain income for such year, and (iii) any
undistributed taxable income from prior periods, the Company will be subject to
a 4% excise tax on the excess of such required distribution over the amounts
actually distributed. The Company has made and intends to continue to make
distributions sufficient to satisfy the annual distribution requirements.
Under certain circumstances, the Company may be able to rectify a failure
to meet the distribution requirement for a year by paying "deficiency dividends"
to shareholders in a later year that may be included in the Company's deduction
for dividends paid for the earlier year. Thus, the Company may be able to avoid
being taxed on amounts distributed as deficiency dividends; however, the Company
will be required to pay interest to the IRS based upon the amount of any
deduction taken for deficiency dividends.
Failure to Qualify. If the Company fails to qualify for taxation as a REIT
in any taxable year and no relief provisions apply, the Company will be subject
to tax (including any applicable alternative minimum tax) on its taxable income
at regular corporate rates. Distributions to shareholders in any year in which
the Company fails to qualify will not be deductible by the Company, nor will
they be required to be made. In such event, to the extent of current and
accumulated earnings and profits, all distributions to shareholders will be
taxable as ordinary income, and, subject to certain limitations in the Code,
corporate distributees may be eligible for the dividends received deduction.
Unless entitled to relief under specific statutory provisions, the Company also
will be disqualified from taxation as a REIT for the four taxable years
following the year during which qualification was lost. It is not possible to
state whether in all circumstances the Company would be entitled to such
statutory relief. Because the Company had substantial earnings and profits
attributable to pre-1987 taxable years, it could be required to incur
substantial indebtedness or liquidate substantial investments in order to make
such distributions, and such distributions would be taxable as ordinary income
to its shareholders.
Taxation of Shareholders
Taxation of Taxable Domestic Shareholders. As long as the Company qualifies
as a REIT, distributions made to the Company's taxable domestic shareholders out
of current or accumulated earnings and profits (and not designated as capital
gain dividends) will be taken into account by them as ordinary income, and
corporate shareholders will not be eligible for the dividends received deduction
as to such amounts. Distributions that are designated as capital gain dividends
will be taxed as long-term capital gains (to the extent they do not exceed the
Company's actual net capital gain for the taxable year) without regard to the
period for which the shareholder has held his shares. However, corporate
shareholders may be required to treat up to 20% of certain capital gain
dividends as ordinary income. Distributions in excess of current and accumulated
earnings and profits will not be taxable to a shareholder to the extent that
they do not exceed the adjusted basis of the shareholder's shares of Common
Stock, but rather will reduce the adjusted basis of such shares. To the extent
that such distributions exceed the adjusted basis of a shareholder's shares of
Common Stock, they will be included in income as long-term capital gain (or
short-term capital gain if the shares have been held for one year or less),
assuming the shares are a capital asset in the hands of the shareholder. In
addition, any dividend declared by the Company in October, November or December
of any year payable to a shareholder of record on a specific date in any such
month shall be treated as both paid by the Company and received by the
shareholder on December 31 of such year, provided that the dividend is actually
paid by the Company during January of the following calendar year. Shareholders
may not include in their individual income tax returns any net operating losses
or capital losses of the Company.
In general, any loss upon a sale or exchange of shares of Common Stock by a
shareholder who has held such shares for six months or less (after applying
certain holding period rules) will be treated as a long-term capital loss to the
extent of distributions from the Company required to be treated by such
shareholder as long-term capital gain.
Backup Withholding. The Company will report to its domestic shareholders
and the IRS the amount of dividends paid during each calendar year, and the
amount of tax withheld, if any, with respect thereto. Under the backup
withholding rules, a shareholder may be subject to backup withholding at the
rate of 31% with respect to dividends paid unless such holder (a) is a
corporation or comes within certain other exempt categories and, when required,
demonstrates this fact, or (b)provides a taxpayer identification number,
certifies as to no loss of exemption from backup withholding, and otherwise
complies with applicable requirements of the backup withholding rules. A
shareholder who does not provide the Company with its correct taxpayer
identification number may also be subject to penalties imposed by the IRS. Any
amount paid as backup withholding will be creditable against the shareholder's
income tax liability. In addition, the Company may be required to withhold a
portion of capital gain distributions made to any shareholders who fail to
certify their non-foreign status to the Company. See "Taxation of Foreign
Shareholders" below.
Taxation of Tax-Exempt Shareholders. The IRS has ruled that amounts
distributed by a REIT to a tax-exempt employees' pension trust do not constitute
"unrelated business taxable income" ("UBTI"). Based upon this ruling and subject
to the discussion below regarding qualified pension trust investors,
distributions by the Company to a shareholder that is a tax-exempt entity should
not constitute UBTI, provided that the tax-exempt entity has not financed the
acquisition of its shares with "acquisition indebtedness" within the meaning of
the Code and the shares of Common Stock are not otherwise used in an unrelated
trade or business of the tax-exempt entity. Revenue rulings, however, are
interpretative in nature and subject to revocation or modification by the IRS.
A "qualified trust" (defined to be any trust described in section 401(a) of
the Code and exempt from tax under section 501(a) of the Code) that holds more
than 10% of the value of the shares of a REIT may be required, under certain
circumstances, to treat a portion of distributions from the REIT as UBTI. This
requirement will apply for a taxable year only if (i) the REIT satisfies the
requirement that not more than 50% of the value of its shares be held by five or
fewer individuals (the "five or fewer requirement") by relying on a special
"look-through" rule under which shares held by qualified trust shareholders are
treated as held by the beneficiaries of such trusts in proportion to their
actuarial interests therein, and (ii) the REIT is "predominantly held" by
qualified trusts. A REIT is "predominantly held" if either (i) a single
qualified trust holds more than 25% of the value of the REIT shares or (ii) one
or more qualified trusts, each owning more than 10% of the value of the REIT
shares, hold in the aggregate more than 50% of the value of the REIT shares. If
the foregoing requirements are met, the percentage of any REIT dividend treated
as UBTI to a qualified trust that owns more than 10% of the value of the REIT
shares is equal to the ratio of (a) the UBTI earned by the REIT (treating the
REIT as if it were a qualified trust and therefore subject to tax on its UBTI)
to (b) the total gross income (less certain associated expenses) of the REIT. A
de minimis exception applies where the ratio set forth in the preceding sentence
is less than 5% for any year. The provisions requiring qualified trusts to treat
a portion of REIT distributions as UBTI will not apply if the REIT is able to
satisfy the five or fewer requirement without relying upon the "look-through"
rule.
Taxation of Foreign Shareholders. The rules governing U.S. Federal income
taxation of nonresident alien individuals, foreign corporations, foreign
partnerships and other foreign shareholders (collectively,
"Non-U.S. Shareholders") are complex, and no attempt will be made herein to
provide more than a limited summary of such rules. Prospective
Non-U.S. Shareholders should consult with their own tax advisors to determine
the impact of U.S. Federal, state and local income tax laws with regard to an
investment in Common Stock, including any reporting requirements.
Distributions that are not attributable to gain from sales or exchanges by
the Company of U.S. real property interests and not designated by the Company as
capital gain dividends will be treated as dividends of ordinary income to the
extent that they are made out of current or accumulated earnings and profits of
the Company. Such distributions, ordinarily, will be subject to a withholding
tax equal to 30% of the gross amount of the distribution unless an applicable
tax treaty reduces that tax. However, if income from the investment in the
shares of Common Stock is treated as effectively connected with the
Non-U.S. Shareholder's conduct of a U.S. trade or business, the
Non-U.S. Shareholder generally will be subject to a tax at graduated rates, in
the same manner as U.S. shareholders are taxed with respect to such dividends
(and may also be subject to the 30% branch profits tax if the shareholder is a
foreign corporation). The Company expects to withhold U.S. income tax at the
rate of 30% on the gross amount of any dividends paid to a Non-U.S. Shareholder
that are not designated as capital gain dividends unless (i) a lower treaty rate
applies and the required form evidencing eligibility for that reduced rate is
filed with the Company or (ii) the Non-U.S. Shareholder files an IRS Form 4224
with the Company claiming that the distribution is "effectively connected"
income. Distributions in excess of current and accumulated earnings and profits
of the Company will not be taxable to a shareholder to the extent that they do
not exceed the adjusted basis of the shareholder's shares of Common Stock, but
rather will reduce the adjusted basis of such shares. To the extent that such
distributions exceed the adjusted basis of a Non-U.S. Shareholder's shares, such
excess will constitute gain subject to U.S. tax under the provisions of the
Foreign Investment in Real Property Tax Act of 1980 ("FIRPTA"), as described
below. If it cannot be determined at the time a distribution is made whether or
not such distribution will be in excess of current and accumulated earnings and
profits, the distribution will be subject to withholding at the rate applicable
to dividends. In addition, the portion of such distributions in excess of
current and accumulated earnings and profits, to the extent not subject to the
withholding tax on dividends, will be subject to a 10% withholding tax under
FIRPTA, unless the Non-U.S. Shareholder obtains a withholding certificate from
the Service establishing the right to a reduced amount of FIRPTA withholding.
The Non-U.S. Shareholder may seek a refund from the Service of excess tax
withheld if it is subsequently determined that such distribution was, in fact,
in excess of current and accumulated earnings and profits or, if the 10%
withholding tax applied, did not give rise to taxable gain under FIRPTA.
For any year in which the Company qualifies as a REIT, distributions that
are attributable to gain from sales or exchanges by the Company of U.S. real
property interests will be taxed to a Non-U.S. Shareholder under the provisions
of FIRPTA. Under FIRPTA, these distributions are taxed to a Non-U.S. Shareholder
as if such gain were effectively connected with a U.S business. Thus,
Non-U.S. Shareholders will be taxed on such distributions at the normal capital
gain rates applicable to U.S. shareholders (subject to applicable alternative
minimum tax and a special alternative minimum tax in the case of nonresident
alien individuals). Also, distributions subject to FIRPTA may be subject to a
30% branch profits tax in the hands of a corporate Non-U.S. Shareholder not
entitled to treaty relief or exemption. The Company is required by applicable
Treasury Regulations to withhold 35% of any distribution that could be
designated by the Company as a capital gain dividend. This amount is creditable
against the Non-U.S. Shareholder's FIRPTA tax liability.
Gain recognized by a Non-U.S. Shareholder upon a sale of Common Stock
generally will not be taxed under FIRPTA if the Company is a "domestically
controlled REIT," defined generally as a REIT in which at all times during a
specified testing period less than 50% in value of the stock was held directly
or indirectly by foreign persons. The Company believes that it currently
qualifies as a "domestically controlled REIT," and that the sale of Common Stock
will not therefore be subject to tax under FIRPTA. Because the Company is
publicly traded, however, no assurance can be given that the Company will
continue to be a domestically controlled REIT. If the Company were not a
domestically controlled REIT, whether a Non-U.S. Shareholder's gain would be
taxed under FIRPTA would depend on whether the Common Stock were regularly
traded on an established securities market and on the size of the selling
shareholder's interest in the Company. In addition, gain not subject to FIRPTA
will be taxable to a Non-U.S. Shareholder if (i) the investment in Common Stock
is treated as effectively connected with the Non-U.S. Shareholder's U.S. trade
or business, in which case the Non-U.S Shareholder will be subject to the same
treatment as U.S. shareholders with respect to such gain, or (ii) the
Non-U.S. Shareholder is a nonresident alien individual who was present in the
United States for 183 days or more during the taxable year and has a "tax home"
in the United States, in which case the nonresident alien individual will be
subject to a 30% tax on the individual's capital gains. If the gain on the sale
of Common Stock were to be subject to tax under FIRPTA, the Non-U.S. Shareholder
would be subject to the same treatment as U.S. shareholders with respect to such
gain (subject to applicable alternative minimum tax and a special alternative
minimum tax in the case of nonresident alien individuals).
Tax Status of the Subsidiary Partnerships
The Company believes that each of the Subsidiary Partnerships qualifies as
a partnership for federal income tax purposes and not as an association taxable
as a corporation or as a publicly traded partnership (within the meaning of
Section 7704 of the Code).
If a Subsidiary Partnership were treated as an association taxable as a
corporation, the value of the Company's interest in such Partnership would no
longer qualify as a real estate asset for purposes of the 75% asset test.
Further, if a Subsidiary Partnership were treated as a taxable corporation, then
the Company would cease to qualify as a REIT if the Company's ownership interest
in such partnership exceeded 10% of the partnership's voting interests or the
value of such interest exceeded 5% of the value of the Company's assets.
Furthermore, in such a situation, distributions from the Subsidiary Partnership
to the Company would be treated as dividends, which are not taken into account
in satisfying the 75% gross income test described above and which could
therefore make it more difficult for the Company to meet such test, and the
Company would not be able to deduct its share of losses generated by such
Subsidiary Partnership in computing its taxable income. See "Taxation of the
Company (Failure to Qualify)" above for a discussion of the effect of the
Company's failure to meet such tests for a taxable year.
State and Local Taxes
The Company and its shareholders may be subject to state or local taxation
in various state or local jurisdictions, including those in which it or they
transact business or reside (although shareholders who are individuals generally
should not be required to file state income tax returns outside of their state
of residence with respect to the Company's operations and distributions). The
state and local tax treatment of the Company and its shareholders may not
conform to the Federal income tax consequences discussed above. Consequently,
prospective shareholders should consult their own tax advisors regarding the
effect of state and local tax laws on an investment in the Securities.
Taxation of CREC and Cousins MarketCenters, Inc.
CREC conducts certain leasing and development activities for the Company. A
wholly owned subsidiary of CREC, Cousins MarketCenters, Inc. ("CMC"), develops
retail power centers for the Company. CREC and CMC file a consolidated federal
tax return. Neither CREC nor CMC qualifies as a REIT, and their income is
subject to federal and state corporate income tax.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters and also may
sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or from purchasers of Securities, for whom they
may act as agents, in the form of discounts, concessions, or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions, or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers, and agents that participate in the distribution
of Securities may be deemed to be underwriters, and any discounts or commissions
they receive from the Company, and any profit on the resale of Securities they
realize may be deemed to be underwriting discounts and commissions, under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the Prospectus
Supplement.
Unless otherwise specified in the related Prospectus Supplement, each
series of Securities will be a new issue with no established trading market,
other than the Common Stock which is listed on the NYSE. Any shares of Common
Stock sold pursuant to a Prospectus Supplement will be listed on such exchange,
subject to official notice of issuance. The Company may elect to list any series
of Debt Securities or Warrants on an exchange, but is not obligated to do so. It
is possible that one or more underwriters may make a market in a series of
Securities, but will not be obligated to do so and may discontinue any market
making at any time without notice. Therefore, no assurance can be given as to
the liquidity of the trading market for the Securities.
Under agreements the Company may enter into, underwriters, dealers, and
agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Company in the ordinary course of
business.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase Securities from the Company
at the public offering price set forth in such Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount not less than, and the aggregate principal amount of Securities
sold pursuant to Contracts shall be not less nor more than, the respective
amounts stated in the applicable Prospectus Supplement. Institutions with whom
Contracts, when authorized, may be made include commercial savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions but will in all cases be subject
to the approval of the Company. Contracts will not be subject to any conditions
except (i) the purchase by an institution of the Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and (ii)
if the Securities are being sold to underwriters, the Company shall have sold to
such underwriters the total principal amount of the Securities less the
principal amount thereof covered by Contracts.
EXPERTS
The audited financial statements and schedules incorporated by reference in
this Prospectus and elsewhere in the Registration Statement of which this
Prospectus is a part have been audited by Arthur Andersen LLP, independent
public accountants, as set forth in their reports. In those reports, that firm
states that, with respect to certain joint ventures, its opinion is based on the
reports of other independent public accountants, namely Ernst & Young LLP. The
financial statements and supporting schedules referred to above have been
incorporated by reference herein in reliance upon the authority of said firms as
experts in giving said reports.
LEGAL MATTERS
The legality of the Securities will be passed upon for the Company by King
& Spalding, Atlanta, Georgia.
<PAGE>
No person has been authorized in connection with the offering made hereby
to give any information or to make any representation not contained in this
Prospectus and, if given or made, such information or representation must not be
relied upon as having been authorized by the Company or any other person. This
Prospectus does not constitute an offer to sell or a solicitation of an offer to
buy any of the Securities offered hereby to any person or by anyone in any
jurisdiction in which it is unlawful to make such offer or solicitation. Neither
the delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that the information contained herein is
correct as of any date subsequent to the date hereof.
_________________
TABLE OF CONTENTS
Page
Available Information.......................... 2
Incorporation of Certain
Documents by Reference...................... 2
The Company.................................... 3
Use of Proceeds................................ 3
Ratio of Earnings to Fixed Charges............. 3
Description of Debt Securities................. 4
Description of Common Stock.................... 14
Description of Warrants........................ 17
Federal Income Tax Considerations.............. 18
Plan of Distribution........................... 25
Experts........................................ 26
Legal Matters.................................. 26
$200,000,000
COUSINS PROPERTIES
INCORPORATED
Common Stock
Warrants
Debt Securities
_________________
PROSPECTUS
_________________
____________, 1996
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with the
issuance and distribution of the Securities, other than underwriting discounts
and commissions. All of the amounts shown are estimated except the Securities
and Exchange Commission registration fee.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee....................... $ 68,966
NASD Fee................................... 20,500
NYSE Listing Fee........................... 58,300
Blue Sky fees and expenses................. 15,000
Printing and distribution expenses......... 100,000
Legal fees and expenses.................... 150,000
Accounting fees and expenses............... 40,000
Miscellaneous.............................. 22,234
--------
Total................................... $475,000
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Part 5 of Article 8 of the Georgia Business Corporation Code states:
14-2-850. Part definitions.
As used in this part, the term:
(1) "Corporation" includes any domestic or foreign predecessor entity of a
corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction.
(2) "Director" or "officer" means an individual who is or was a director or
officer, respectively, of a corporation or who, while a director or officer of
the corporation, is or was serving at the corporation's request as a director,
officer, partner, trustee, employee, or agent of another domestic or foreign
corporation, partnership, joint venture, trust, employee benefit plan, or other
entity. A director or officer is considered to be serving an employee benefit
plan at the corporation's request if his or her duties to the corporation also
impose duties on, or otherwise involve services by, the director or officer to
the plan or to participants in or beneficiaries of the plan. Director or officer
includes, unless the context otherwise requires, the estate or personal
representative of a director or officer.
(3) "Disinterested director" means a director who at the time of a vote
referred to in subsection (c) of Code Section 14-2-853 or a vote or selection
referred to in subsection (b) or (c) of Code Section 14-2-855 or subsection (a)
of Code Section 14-2-856 is not:
(A) A party to the proceeding; or
(B) An individual who is a party to a proceeding having a familial,
financial, professional, or employment relationship with the director whose
indemnification or advance for expenses is the subject of the decision being
made with respect to the proceeding, which relationship would, in the
circumstances, reasonably be expected to exert an influence on the director's
judgment when voting on the decision being made.
(4) "Expenses" includes counsel fees.
(5) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expenses incurred with respect to a proceeding.
(6) "Official capacity" means:
(A) When used with respect to a director, the office of director in a
corporation; and
(B) When used with respect to an officer, as contemplated in Code Section
14-2-857, the office in a corporation held by the officer.
Official capacity does not include service for any other domestic or foreign
corporation or any partnership, joint venture, trust, employee benefit plan, or
other entity.
(7) "Party" means an individual who was, is, or is threatened to be made a
named defendant or respondent in a proceeding.
(8) "Proceeding" means any threatened, pending or completed action, suit,
or proceeding, whether civil, criminal, administrative, arbitrative, or
investigative and whether formal or informal.
14-2-851. Authority to indemnify.
(a) Except as otherwise provided in this Code section, a corporation may
indemnify an individual who is a party to a proceeding because he or she is or
was a director against liability incurred in the proceeding if:
(1) Such individual conducted himself or herself in good faith; and
(2) Such individual reasonably believed:
(A) In the case of conduct in his or her official capacity, that such
conduct was in the best interests of the corporation;
(B) In all other cases, that such conduct was at least not opposed to
the best interests of the corporation; and
(C) In the case of any criminal proceeding, that the individual had no
reasonable cause to believe such conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he or she believed in good faith to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subparagraph (a) (1) (B) of this Code section.
(c) The termination of a proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this Code section.
(d) A corporation may not indemnify a director under this Code section:
(1) In connection with a proceeding by or in the right of the
corporation, except for reasonable expenses incurred in connection
with the proceeding if it is determined that the director has met the
relevant standard of conduct under this Code section; or
(2) In connection with any proceeding with respect to conduct for
which he was adjudged liable on the basis that personal benefit was
improperly received by him, whether or not involving action in his
official capacity.
14-2-852. Mandatory indemnification.
A corporation shall indemnify a director who was wholly successful, on the
merits or otherwise, in the defense of any proceeding to which he or she was a
party because he or she was a director of the corporation against reasonable
expenses incurred by the director in connection with the proceeding.
14-2-853. Advance for expenses.
(a) A corporation may, before final disposition of a proceeding, advance
funds to pay for or reimburse the reasonable expenses incurred by a director who
is a party to a proceeding because he or she is a director if he or she delivers
to the corporation:
(1) A written affirmation of his or her good faith belief that he
or she has met the relevant standard of conduct described in Code
Section 14-2-851 or that the proceeding involves conduct for which
liability has been eliminated under a provision of the articles of
incorporation as authorized by paragraph (4) of subsection (b) of Code
Section 14-2-202; and
(2) His or her written undertaking to repay any funds advanced if
it is ultimately determined that the director is not entitled to
indemnification under this part.
(b) The undertaking required by paragraph (2) of subsection (a) of this
Code section must be an unlimited general obligation of the director but need
not be secured and may be accepted without reference to the financial ability of
the director to make repayment.
(c) Authorizations under this Code section shall be made:
(1) By the board of directors:
(A) When there are two or more disinterested directors, by a
majority vote of all the disinterested directors (a majority of whom
shall for such purpose constitute a quorum) or by a majority of the
members of a committee of two or more disinterested directors
appointed by such a vote; or
(B) When there are fewer than two disinterested directors, by the
vote necessary for action by the board in accordance with subsection
(c) of Code Section 14-2-824, in which authorization directors who do
not qualify as disinterested directors may participate; or
(2) By the shareholders, but shares owned or voted under the
control of a director who at the time does not qualify as a
disinterested director with respect to the proceeding may not be voted
on the authorization.
14-2-854. Court-ordered indemnification and advances for expenses.
(a) A director who is a party to a proceeding because he or she is a
director may apply for indemnification or advance for expenses to the court
conducting the proceeding or to another court of competent jurisdiction. After
receipt of an application and after giving any notice it considers necessary,
the court shall:
(1) Order indemnification or advance for expenses if it
determines that the director is entitled to indemnification under this
part; or
(2) Order indemnification or advance for expenses if it
determines, in view of all the relevant circumstances, that it is fair
and reasonable to indemnify the director or to advance expenses to the
director, even if the director has not met the relevant standard of
conduct set forth in subsections (a) and (b) of Code Section 14-2-851,
failed to comply with Code Section 14-2-853, or was adjudged liable in
a proceeding referred to in paragraph (1) or (2) of subsection (d) of
Code Section 14-2-851, but if the director was adjudged so liable, the
indemnification shall be limited to reasonable expenses incurred in
connection with the proceeding.
(b) If the court determines that the director is entitled to
indemnification or advance for expenses under this part, it may also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification or advance for expenses.
14-2-855. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under Code Section 14-2-851
unless authorized thereunder and a determination has been made for a specific
proceeding that indemnification of the director is permissible in the
circumstances because he or she has met the relevant standard of conduct set
forth in Code Section 14-2-851.
(b) The determination shall be made:
(1) If there are two or more disinterested directors, by the
board of directors by a majority vote of all the disinterested
directors (a majority of whom shall for such purpose constitute a
quorum) or by a majority of the members of a committee of two or more
disinterested directors appointed by such a vote;
(2) By special legal counsel:
(A) Selected in the manner prescribed in paragraph (1) of this
subsection; or
(B) If there are fewer than two disinterested directors, selected
by the board of directors (in which selection directors who wish do
not qualify as disinterested directors may participate); or
(3) By the shareholders, but shares owned by or voted under the
control of a director who at the time does not qualify as a
disinterested director may not be voted on the determination.
(c) Authorization of indemnification or an obligation to indemnify and
evaluation as to reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except that if there are
fewer than two disinterested directors or if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subparagraph
(b)(2)(B) of this Code section to select special legal counsel.
14-2-856. Shareholder approved indemnification.
(a) If authorized by the articles of incorporation or a bylaw, contract, or
resolution approved or ratified by the shareholders by a majority of the votes
entitled to be cast, a corporation may indemnify or obligate itself to indemnify
a director made a party to a proceeding including a proceeding brought by or in
the right of the corporation, without regard to the limitations in other Code
sections of this part, but shares owned or voted under the control of a director
who at the time does not qualify as a disinterested director with respect to any
existing or threatened proceeding that would be covered by the authorization may
not be voted on the authorization.
(b) The corporation shall not indemnify a director under this Code section
for any liability incurred in a proceeding in which the director is adjudged
liable to the corporation or is subjected to injunctive relief in favor of the
corporation:
(1) For any appropriation, in violation of the director's duties,
of any business opportunity of the corporation;
(2) For acts or omissions which involve intentional misconduct or
a knowing violation of law;
(3) For the types of liability set forth in Code Section
14-2-832; or
(4) For any transaction from which he received an improper
personal benefit.
(c) Where approved or authorized in the manner described in subsection (a)
of this Code section, a corporation may advance or reimburse expenses incurred
in advance of final disposition of the proceeding only if:
(1) The director furnishes the corporation a written affirmation
of his or her good faith belief that his or her conduct does not
constitute behavior of the kind described in subsection (b) of this
Code section; and
(2) The director furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay any advances if
it is ultimately determined that the director is not entitled to
indemnification under this Code section.
14-2-857. Indemnification of officers, employees, and agents.
(a) A corporation may indemnify and advance expenses under this part to an
officer of the corporation who is a party to a proceeding because he or she is
an officer of the corporation:
(1) To the same extent as a director; and
(2) If he or she is not a director, to such further extent as may
be provided by the articles of incorporation, the bylaws, a resolution
of the board of directors, or contract except for liability arising
out of conduct that constitutes:
(A) Appropriation, in violation of his or her duties, of any
business opportunity of the corporation;
(B) Acts or omissions which involve intentional misconduct or a
knowing violation of law;
(C) The types of liability set forth in Code Section 14-2-832; or
(D) Receipt of an improper personal benefit.
(b) The provisions of paragraph (2) of subsection (a) of this Code section
shall apply to an officer who is also a director if the sole basis on which he
or she is made a party to the proceeding is an act or omission solely as an
officer.
(c) An officer of a corporation who is not a director is entitled to
mandatory indemnification under Code Section 14-2-852, and may apply to a court
under Code Section 14-2-854 for indemnification or advances for expenses, in
each case to the same extent to which a director may be entitled to
indemnification or advances for expenses under those provisions.
(d) A corporation may also indemnify and advance expenses to an employee or
agent who is not a director to the extent, consistent with public policy, that
may be provided by its articles of incorporation, bylaws, general or specific
action of its board of directors, or contract.
14-2-858. Insurance.
A corporation may purchase and maintain insurance on behalf of an
individual who is a director, officer, employee, or agent of the corporation or
who, while a director, officer, employee, or agent of the corporation, serves at
the corporation's request as a director, officer, partner, trustee, employee, or
agent of another domestic or foreign corporation, partnership, joint venture,
trust, employee benefit plan, or other entity against liability asserted against
or incurred by him or her in that capacity or arising from his or her status as
director, officer, employee, or agent, whether or not the corporation would have
power to indemnify or advance expenses to him or her against the same liability
under this part.
14-2-859. Application of part.
(a) A corporation may, by a provision in its articles of incorporation or
bylaws or in a resolution adopted or a contract approved by its board of
directors or shareholders, obligate itself in advance of the act or omission
giving rise to a proceeding to provide indemnification or advance funds to pay
for or reimburse expenses consistent with this part. Any such obligatory
provision shall be deemed to satisfy the requirements for authorization referred
to in subsection (c) of Code Section 14-2-853 or subsection (c) of Code Section
14-2-855. Any such provision that obligates the corporation to provide
indemnification to the fullest extent permitted by law shall be deemed to
obligate the corporation to advance funds to pay for or reimburse expenses in
accordance with Code Section 14-2-853 to the fullest extent permitted by law,
unless the provision specifically provides otherwise.
(b) Any provision pursuant to subsection (a) of this Code section shall not
obligate the corporation to indemnify or advance expenses to a director of a
predecessor of the corporation, pertaining to conduct with respect to the
predecessor, unless otherwise specifically provided. Any provision for
indemnification or advance for expenses in the articles of incorporation,
bylaws, or a resolution of the board of directors or shareholders, partners, or,
in the case of limited liability companies, members or managers of a predecessor
of the corporation or other entity in a merger or in a contract to which the
predecessor is a party, existing at the time the merger takes effect, shall be
governed by paragraph (3) of subsection (a) of Code Section 14-2-1106.
(c) A corporation may, by a provision in its articles of incorporation,
limit any of the rights to indemnification or advance for expenses created by or
pursuant to this part.
(d) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director or an officer in connection with his or her
appearance as a witness in a proceeding at a time when he or she is not a party.
(e) Except as expressly provided in Code Section 14-2-857, this part does
not limit a corporation's power to indemnify, advance expenses to, or provide or
maintain insurance on behalf of an employee or agent.
Articles of Incorporation; Bylaws
As permitted by the Georgia Business Corporation Code, the Company's
Restated Articles of Incorporation provide that a director shall not be
personally liable to the Company or its shareholders for monetary damages for
breach of duty of care or other duty as a director, except that such provision
shall not eliminate or limit the liability of a director (a) for any
appropriation, in violation of his duties, of any business opportunity of the
Company, (b) for acts or omissions that involve intentional misconduct or a
knowing violation of law, (c) for unlawful corporate distributions or (d) for
any transaction from which the director derived an improper personal benefit.
Under Article VI of the Company's Bylaws, the Company is required to
indemnify any person who is made or threatened to be made a party to any pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative and whether formal or informal (including any action by or in
the right of the Company), by reason of the fact that he is or was a director,
officer, agent or employee of the Company against expenses (including reasonable
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such proceeding provided that such
person shall not be indemnified in any proceeding in which he is adjudged liable
to the Company for (i) any appropriation, in violation of his duties, of any
business opportunity of the Company, (ii) acts or omissions which involve
intentional misconduct or knowing violation of law, (iii) unlawful corporate
distributions or (iv) any transaction from which such person received improper
personal benefit. Expenses incurred by any person according to the foregoing
provisions shall be paid by the Company in advance of the final disposition of
such proceeding upon receipt of the written affirmation of such person's good
faith belief that he has met the standards of conduct required under the Bylaws.
3
<PAGE>
Item 16. Exhibits.
Exhibit No. Description of Exhibit
4.1 -- Form of Indenture between the Company and the Trustee.
4.2 -- Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 4.1 of the
Company's Registration Statement on Form S-8
(File No. 33-56787)).
4.3 -- Bylaws of the Company (incorporated by reference
to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 (File No. 33-56787)).
5.1 -- Opinion of King & Spalding regarding the legality of
the securities being registered.
8.1 -- Opinion of King & Spalding regarding tax matters.
12.1 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of King & Spalding (included as part of its
opinions filed as Exhibits 5.1 and 8.1).
23.2 -- Consent of Arthur Andersen LLP, independent public
accountants.
23.3 -- Consent of Ernst & Young LLP, independent auditors.
24.1 -- Power of attorney (included on signature page).
25.1 -- Statement of Eligibility of Trustee on Form T-1.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a) (3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933 (the "Securities
Act"), each filing of the registrants annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this registration statement as of the
time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating
to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, State of Georgia on the 13th day of
September, 1996.
COUSINS PROPERTIES INCORPORATED
By: /s/ Peter A. Tartikoff
Peter A. Tartikoff
Senior Vice President and Chief
Financial Officer
5
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Peter A. Tartikoff and Tom G. Charlesworth and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and any other
documentation in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 13th day of September, 1996:
Signature Title
/s/ T. G. Cousins Chairman of the Board of Directors and
T. G. Cousins Chief Executive Officer
(Principal Executive Officer)
/s/ Peter A. Tartikoff Senior Vice President and Chief
Peter A. Tartikoff Financial Officer (Principal Financial
Officer)
/s/ Kelly H. Barrett
Kelly H. Barrett Vice President and Controller
(Principal Accounting Officer)
/s/ Bennett A. Brown Director
Bennett A. Brown
/s/ Richard W. Courts, II Director
Richard W. Courts, II
/s/ Terence C. Golden Director
Terence C. Golden
/s/ Boone A. Knox Director
Boone A. Knox
/s/ William Porter Payne Director
William Porter Payne
/s/ Richard E. Salomon Director
Richard E. Salomon
6
<PAGE>
INDEX OF EXHIBITS
- ----------------------- ------------------------------------------------------
Sequentially
Numbered
Exhibit No.
Exhibit
4.1 Form of Indenture between the Company and the Trustee.
4.2 Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 4.1 of the Company's
Registration Statement on Form S-8 (File No. 33-56787)).
4.3 Bylaws of the Company (incorporated by reference to
Exhibit 4.2 to the Company's Registration Statement on
Form S-8 (File No. 33-56787)).
5.1 Opinion of King & Spalding regarding the legality of the
securities being registered.
8.1 Opinion of King & Spalding regarding tax matters.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of King & Spalding (included as part of its
opinions filed as Exhibits 5.1 and 8.1).
23.2 Consent of Arthur Andersen LLP, independent public
accountants.
23.3 Consent of Ernst & Young LLP, independent auditors.
24.1 Power of attorney (included on signature page).
25.1 Statement of Eligibility of Trustee on Form T-1.
<PAGE>
EXHIBIT 4.1
DRAFT
9/10/96
COUSINS PROPERTIES INCORPORATED
Issuer
TO
FIRST UNION NATIONAL BANK OF GEORGIA
Trustee
Indenture
Dated as of ___________, 1996
Debt Securities
21
<PAGE>
TABLE OF CONTENTS
Page
PARTIES ................................................................. 1
RECITALS................................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101.Defin 1ions.
"Act," ............................................ 2
"Additional Amounts" .............................. 2
"Affiliate" ....................................... 2
"Annual Debt Service Charge" ...................... 2
"Authenticating Agent" ............................ 2
"Authorized Newspaper" ............................ 2
"Bankruptcy Law" .................................. 2
"Bearer Security" ................................. 2
"Board of Directors" .............................. 2
"Board Resolution" ................................ 3
"Business Day" .................................... 3
"CEDEL" ........................................... 3
"Commission" ...................................... 3
"Common Depositary" ............................... 3
"Consolidated Income Available for Debt Service" .. 3
"Consolidated Interest Expense" ................... 3
"Consolidated Net Income" ......................... 3
"Conversion Event" ................................ 3
"Corporate Trust Office" .......................... 4
"Corporation" ..................................... 4
"Coupon" .......................................... 4
"Custodian" ....................................... 4
"Debt" ............................................ 4
"Defaulted Interest" .............................. 4
"Dollar" or "$" ................................... 4
"DTC" ............................................. 4
"ECU" ............................................. 5
"Euroclear" ....................................... 5
"European Monetary System" ........................ 5
"European Union" .................................. 5
"Event of Default" ................................ 5
"Foreign Currency" ................................ 5
"GAAP" ............................................ 5
"Government Obligations" .......................... 5
"Holder" .......................................... 5
"Indenture" ....................................... 6
"Indexed Security" ................................ 6
"Intercompany Debt" ............................... 6
"Interest ......................................... 6
"Interest Payment Date ............................ 6
"Issuer" .......................................... 6
"Issuer Request" and "Issuer Order" ............... 6
"Judgment Currency" ............................... 6
"Legal Holiday" ................................... 6
"Maturity ......................................... 6
"Officers' Certificate" ........................... 6
"Opinion of Counsel" .............................. 7
"Original Issue Discount Security" ................ 7
"Outstanding ...................................... 7
"Paying Agent" .................................... 8
"Person" .......................................... 8
"Place of Payment ................................. 8
"Predecessor Security" ............................ 8
"Recourse Indebtedness" ........................... 8
"Redemption Date .................................. 9
"Redemption Price ................................. 9
"Registered Security" ............................. 9
"Regular Record Date" ............................. 9
"Repayment Date" .................................. 9
"Repayment Price" ................................. 9
"Responsible Officer .............................. 9
"Secured Debt" .................................... 9
"Security" ........................................ 9
"Security Register" and "Security Registrar" ...... 10
"Senior Executive Group" .......................... 10
"Significant Subsidiary" .......................... 10
"Special Record Date" ............................. 10
"Stated Maturity .................................. 10
"Total Assets" .................................... 10
"Total Unencumbered Assets" ....................... 10
"Trust Indenture Act" or "TIA" .................... 11
"Trustee" ......................................... 11
"Undepreciated Real Estate Assets" ................ 11
"United States" ................................... 11
"United States Person" ............................ 11
"Unsecured Debt" .................................. 11
"Yield to Maturity" ............................... 11
SECTION 102 Compl11nce Certificates and Opinions............... 11
SECTION 103 Form 12 Documents Delivered to Trustee............. 12
SECTION 104 Acts 12 Holders.................................... 12
SECTION 105 Notices, Etc., to Trustee and Issuer............... 14
SECTION 106 Notices 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 Benefits of Indenture.............................. 16
SECTION 111 Governing Law...................................... 16
SECTION 112 Legal Holidays..................................... 16
SECTION 113 Conflict with Trust Indenture Act.................. 17
SECTION 114 Counterparts....................................... 17
SECTION 115 Judgment Currency.................................. 17
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities ............................... 17
SECTION 202. Form of Trustee's Certificate of Authentication.... 18
SECTION 203. Securities Issuable in Global Form................. 18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................ 19
SECTION 302. Currency; Denominations............................. 23
SECTION 303. Execution, Authentication, Delivery and Dating...... 24
SECTION 304. Temporary Securities................................ 26
SECTION 305. Registration, Transfer and Exchange................. 29
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.... 33
SECTION 307. Payment of Interest; Interest Rights Reserved....... 34
SECTION 308. Persons Deemed Owners............................... 36
SECTION 309. Cancellation........................................ 37
SECTION 310. Computation of Interest............................. 37
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401 Satisfaction and Discharge of Indenture................... 37
SECTION 402 Application of Trust Funds................................ 39
ARTICLE FIVE
REMEDIES
SECTION 501 Events of Default......................................... 39
SECTION 502 Acceleration of Maturity; Rescission and Annulment........ 41
SECTION 503 Acceleration of Maturity.................................. 42
SECTION 504 Trustee May File Proofs of Claim.......................... 43
SECTION 505 Trustee May Enforce Claims Without Possession of Securities
or Coupons ............................................. 44
SECTION 508 Unconditional Right of Holders to Receive Principal,Premium,
If Any, Interest and Additional Amounts................. 45
SECTION 509 Restoration of Rights and Remedies........................ 45
SECTION 510 Rights and Remedies Cumulative............................ 46
SECTION 511 Delay or Omission Not Waiver.............................. 46
SECTION 512 Control by Holders of Securities.......................... 46
SECTION 513 Waiver of past Defaults................................... 46
SECTION 514 Waiver of Usury, Stay or Extension Laws................... 47
SECTION 515 Undertaking for Costs..................................... 47
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults........................................ 48
SECTION 602. Certain Rights of Trustee................................. 48
SECTION 603. Not Responsible for Recitals or Issuance of Securities.... 49
SECTION 604. May Hold Securities....................................... 50
SECTION 605. Money Held in Trust....................................... 50
SECTION 606. Compensation and Reimbursement ........................... 50
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests............................................... 51
SECTION 608. Resignation and Removal; Appointment of Successor ........ 51
SECTION 609. Acceptance of Appointment by Successor ................... 53
SECTION 610. Merger, Conversion, Consolidation or Succession to Business 54
SECTION 611. Appointment of Authenticating Agent ...................... 54
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. Disclosure of Names and Addresses of Holders.............. 56
SECTION 702. Reports by Trustee........................................ 56
SECTION 703. Reports by Issuer......................................... 57
SECTION 704. Issuer to Furnish Trustee Names and Addresses of Holders.. 58
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Issuer and Sales, Leases and
Conveyance Permitted Subject to Certain Conditions...... 58
SECTION 802. Rights and Duties of Successor Corporation................ 58
SECTION 803. Officers' Certificate and Opinion of Counsel.............. 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders........ 59
SECTION 902. Supplemental Indentures with Consent of Holders........... 61
SECTION 903. Execution of Supplemental Indentures...................... 62
SECTION 904. Effect of Supplemental Indentures......................... 62
SECTION 905. Conformity with Trust Indenture Act....................... 63
SECTION 906. Reference in Securities to Supplemental Indentures........ 63
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any, Interest and
Additional Amounts...................................... 63
SECTION 1002. Maintenance of Office or Agency........................... 63
SECTION 1003. Money for Securities Payments to Be Held in Trust......... 65
SECTION 1004. Limitations on Incurrence of Debt......................... 66
SECTION 1005. [intentionally omitted]................................... 67
SECTION 1006. Existence................................................. 67
SECTION 1007. Maintenance of Properties................................. 68
SECTION 1008. Insurance................................................. 68
SECTION 1009. Payment of Taxes and Other Claims......................... 68
SECTION 1010. Provision of Financial Information........................ 68
SECTION 1011. Statement as to Compliance................................ 69
SECTION 1012. Additional Amounts........................................ 69
SECTION 1013. Waiver of Certain Covenants............................... 70
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................. 71
SECTION 1102. Election to Redeem; Notice to Trustee..................... 71
SECTION 1103. Selection by Trustee of Securities to Be Redeemed......... 71
SECTION 1104. Notice of Redemption...................................... 71
SECTION 1105. Deposit of Redemption Price............................... 73
SECTION 1106. Securities Payable on Redemption Date..................... 73
SECTION 1107. Securities Redeemed in Part............................... 74
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................. 75
SECTION 1202. Satisfaction of Sinking Fund Payment with Securities...... 75
SECTION 1203. Redemption of Securities for Sinking Fund................. 75
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.................................. 76
SECTION 1302. Repayment of Securities................................... 76
SECTION 1303. Exercise of Option........................................ 76
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable................................................. 77
SECTION 1305. Securities Repaid in Part................................. 78
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Issuer's Option to Effect
Defeasance or Covenant Defeasance ...................... 78
SECTION 1402. Defeasance and Discharge.................................. 78
SECTION 1403. Covenant Defeasance....................................... 79
SECTION 1404. Conditions to Defeasance or Covenant Defeasance........... 80
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions................ 81
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called................. 82
SECTION 1502. Call, Notice and Place of Meetings........................ 82
SECTION 1503. Persons Entitled to Vote at Meetings...................... 83
SECTION 1504. Quorum; Action............................................ 83
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings................................................ 84
SECTION 1506. Counting Votes and Recording Action of Meetings........... 85
ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. Applicability of Article.................................. 86
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A -- FORMS OF CERTIFICATION
8
<PAGE>
COUSINS PROPERTIES INCORPORATED
Reconciliation and Tie between Trust Indenture Act of 1939 (the "TIA" or
"Trust Indenture Act") and Indenture, dated as of
______________, 1996
Trust Indenture Act Section Indenture Section
Sec. 310(a)(1)................................. 607
(a)(2)................................... 607
(b)...................................... 607, 608
Sec. 312(a).................................... 704
Sec. 312(c).................................... 701
Sec. 313(a).................................... 702
(c)...................................... 702
Sec. 314(a).................................... 1010
(a)(4)................................... 1011
(c)(1)................................... 102
(c)(2)................................... 102
(e)...................................... 102
Sec. 315(b).................................... 601
Sec. 316(a) (last sentence).................... 101 ("Outstanding")
(a)(1)(A)................................ 502, 512
(a)(1)(B)................................ 513
(b)...................................... 508
Sec. 317(a)(1)................................. 503
(a)(2)................................... 504
Sec. 318(a).................................... 111
(c)...................................... 111
______________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust Indenture
Act, which provides that the provisions of Sections 310 to and including 317 of
the Trust Indenture Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
9
<PAGE>
INDENTURE, dated as of ______________, 1996 between Cousins Properties
Incorporated, a Georgia corporation (the "Issuer"), having its principal offices
at 2500 Windy Ridge Parkway, Atlanta, Georgia 30339 and First Union National
Bank of Georgia, a national banking association organized under the laws of the
United States of America, as Trustee hereunder (the "Trustee"), having its
Corporate Trust Office at _________________________.
RECITALS OF THE ISSUER
The Issuer deems it necessary to issue from time to time for its lawful
purposes debt securities (hereinafter called the "Securities") evidencing its
unsecured indebtedness, and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear interest at the rates or formulas, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder that are deemed to be incorporated into this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Issuer, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of any series therefor
and any coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(4) the words "herein," "hereof," "hereto" 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; and
(5) the word "or" is always used inclusively.
"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, assessments or
other governmental charges imposed on certain Holders and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Annual Debt Service Charge" means the amount which is expensed in any
designated 12-month period for interest on Debt.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 611 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper, printed in the English language
or in an official language of the place of publication, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are legal Holidays in the place of publication, 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 day that is a
Business Day in the place of publication.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means any Security established pursuant to Section 201
which is payable to bearer.
"Board of Directors" means the board of directors of the Issuer or any
committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of one or more resolutions certified by the
Secretary or an Assistant Secretary of the Issuer to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" when used with respect to any Place of Payment or any other
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 or other day on which banking institutions
in that Place of Payment or particular location are authorized or required by
law, regulation or executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or its
successor.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties on such date.
"Common Depositary" has the meaning specified in Section 304(b).
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income of the Issuer and its Subsidiaries plus amounts which
have been deducted in determining Consolidated Net Income during such period for
(a) Consolidated Interest Expense, (b) provision for taxes of the Issuer and its
Subsidiaries based on income, (c) amortization (other than amortization of debt
discount) and depreciation, (d) provisions for losses from sales or joint
ventures, and (e) increases in deferred taxes and other non-cash items, and less
amounts which have been added in determining Consolidated Net Income during such
period for (x) provisions for gains from sales or joint ventures, and (y)
decreases in deferred taxes and other non-cash items.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt (including,
without limitation, payment-in-kind, zero coupon and other like securities) of
the Issuer and its Subsidiaries, but excluding legal fees, title insurance
charges and other out-of-pocket fees and expenses incurred in connection with
the issuance of Debt, all determined in accordance with GAAP.
"Consolidated Net Income" for any period means the amount of consolidated
net income (or loss) of the Issuer and its Subsidiaries for such period, before
extraordinary items, determined on a consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union 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 principal corporate trust 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
_____________________.
"Corporation"includes corporations and limited liability companies,
associations, partnerships, companies and business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning specified in Section 501.
"Debt" of any Person means, without duplication, any indebtedness of such
Person, whether or not contingent, in respect of (i) borrowed money evidenced by
bonds, notes, debentures or similar instruments, (ii) indebtedness secured by
any mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by such Person, (iii) the reimbursement obligations,
contingent or otherwise, in connection with any letters of credit actually
issued to assure payment of Debt or amounts representing the balance deferred
and unpaid of the purchase price of any property except any such balance that
constitutes an accrued expense or trade payable or (iv) any lease of property by
such Person as lessee which is reflected on such Person's consolidated balance
sheet as a capitalized lease in accordance with GAAP, in the case of items of
indebtedness under (i) through (iii) above to the extent that any such items
(other than letters of credit) would appear as a liability on such Person's
balance sheet in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation by such Person to be liable for, or to pay,
as obligor, guarantor or otherwise (other than for purposes of collection in the
ordinary course of business), Debt of another Person (it being understood that
Debt shall be deemed to be incurred by the Issuer and its Subsidiaries on a
consolidated basis whenever the Issuer and its Subsidiaries on a consolidated
basis shall create, assume, guarantee or otherwise become liable in respect
thereof); provided, however, that the term Debt shall not include any such
indebtedness that has been the subject of an "in substance" defeasance in
accordance with GAAP.
"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 as at the time shall be legal tender for the
payment of public and private debts.
"DTC" has the meaning specified in Section 304(b).
"ECU" means European Currency Units as defined and revised from time to
time by the Council of the European Community.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Monetary System" means the European Monetary System established
by the Resolution of December 5, 1978 of the Council of the European Community.
"European Union"means the European Community, the European Coal and Steel
Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Five.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"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 or by any recognized confederation or
association of such governments.
"GAAP" means generally accepted accounting principles, as in effect from
time to time, as used in the United States applied on a consistent basis.
Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the Foreign
Currency in which the Securities of a particular series are payable, for the
payment of which its full faith and credit is pledged or (ii) obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America or such government which issued the foreign
currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"Holder" means, in the case of any Registered Security, the Person in whose
name such Security is registered in the Security Register and, in the case of
any Bearer Security, the bearer thereof and, when in the case of any coupon, the
bearer thereof.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall
include the terms of a particular series of Securities established as
contemplated by Section 301.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Intercompany Debt" means Debt to which the only parties are the Issuer
and/or any of its respective Subsidiaries, but only so long as such Debt is held
solely by the Issuer or its respective Subsidiaries.
"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 1012, 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 Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Issuer" shall mean such
successor Person.
"Issuer Request" and "Issuer Order" mean, respectively, a written request
or order signed in the name of the Issuer by its Chairman of the Board, the
President or a Vice President (whether or not designated by a number or a word
or words added before or after the title "vice president"), and by its
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Issuer, and delivered to the Trustee.
"Judgment Currency" has the meaning specified in Section 116.
"Legal Holiday" means a day that is not a Business Day.
"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 or repurchase, notice of
option to elect repayment or otherwise, and includes the Redemption Date.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President (whether or not designated by a number
or a word or words added before or after the title "vice president") and by the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Issuer, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Issuer or who may be an employee of or other counsel for the Issuer and
who shall be satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding" when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar 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) in trust or set aside and
segregated in trust by the Issuer (if the Issuer shall act as its own
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision theretofore satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Section 1402
and 1403, with respect to which the Issuer has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Issuer;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination 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 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 and that shall be deemed Outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Issuer or any other obligor upon
the Securities or any Affiliate of the Issuer or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such determination or in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Securities which a Responsible Officer of the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Affiliate of the Issuer or of such other obligor.
"Paying Agent"means any Person authorized by the Issuer to pay the
principal of (and premium and Additional Amounts, if any) or interest on any
Securities or coupons on behalf of the Issuer.
"Person" means any individual, Corporation, joint venture, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment," when used with respect to any Security, means the place
or places where the principal of (and premium and Additional Amounts, if any)
and interest on such Securities are payable as specified as contemplated by
Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Recourse Indebtedness" means Debt other than Secured Debt as to which the
liability of the obligor thereon is limited to its interest in the collateral
securing such Secured Debt, provided that no such Secured Debt shall constitute
Recourse Indebtedness by reason of provisions therein for imposition of full
recourse liability on the obligor for certain wrongful acts, environmental
liabilities, or other customary exclusions from the scope of so-called
"non-recourse" provisions.
"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 or such Security.
"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 or such
Security.
"Registered Security" shall mean any Security which is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on any Registered Security of or within any series means the date specified for
that purpose as contemplated by Section 301, whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be repaid
at the option of the Holder, the date fixed for such repayment by or pursuant to
this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above 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.
"Secured Debt" means, without duplication, Debt that is secured by a
mortgage, trust deed, deed of trust, deed to secure debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a security
interest in real property or other tangible assets.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Senior Executive Group" shall mean, collectively, those individuals
holding the offices of Chairman, President, Chief Executive Officer, Chief
Operating Officer, or any Executive Vice President of the Issuer.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act of 1933, as amended) of the Issuer.
"Special Record Date"for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date specified in such Security or a coupon representing such
installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest, or such Additional
Amounts are due and payable.
"Subsidiary" means (i) any corporation or other entity the majority of the
shares of the non-voting capital stock or other equivalent ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Issuer, and the majority of the shares of the voting
capital stock or other equivalent ownership interests of which (except
directors' qualifying shares) are at the time directly or indirectly owned by
the Issuer or any other Subsidiary, and/or one or more individuals of the Senior
Executive Group (or, in the event of death or disability of any of such
individuals, his/her respective legal representative(s)), or such individuals'
successors in office as an officer of the Issuer or the Secretary of such
Subsidiary, and (ii) any other entity (other than the Issuer) the accounts of
which are consolidated with the accounts of the Issuer.
"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 on a
consolidated basis determined in accordance with GAAP but excluding assets
properly classified as "intangible assets" in accordance with GAAP.
"Total Unencumbered Assets" means, at any date, the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt and
(ii) all other Total Assets of the Issuer and its Subsidiaries not securing any
portion of Secured Debt determined in accordance with GAAP.
"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.
"Undepreciated Real Estate Assets" means as of any date the cost (original
cost plus capitalized 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.
"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.
"Unsecured Debt" means Debt of the Issuer or any Subsidiary that is not
Secured Debt.
"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. Except as otherwise
expressly provided in this Indenture, upon any application or request by the
Issuer to the Trustee to take any action under any provision of this Indenture,
the Issuer shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (including certificates delivered
pursuant to Section 1011) 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 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 may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Issuer may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations of or 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 stating that the information as to such factual matters is in the
possession of the Issuer, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders 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, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders of Securities of such series may, alternatively, be embodied
in and evidenced by the record of Holders of Securities of such series voting in
favor thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Issuer. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments or so voting
at any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any Person of a Security, shall
be sufficient for any purpose of this Indenture and (subject to Section 315 of
the Trust Indenture Act) conclusive in favor of the Trustee and the Issuer and
any agent of the Trustee or the Issuer, 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 in any reasonable manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee may
determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(d) The ownership, principal amount and serial numbers of Bearer Securities
held by any Person, and the date of the commencement and the date of the
termination of holding the same may be proved by the production of such Bearer
Securities or by a certificate executed, as depositary, by any trust company,
bank, banker or other depositary reasonably acceptable to the Issuer, wherever
situated, if such certificate shall be deemed by the Issuer and the Trustee to
be satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Issuer may assume
that such ownership of any Bearer Security continues until (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, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument in writing and the
date of the commencement and the date of the termination of holding the same may
also be proved in any other manner which the Trustee deems sufficient.
(e) If the Issuer shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Issuer may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders of
Registered Securities entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Issuer shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of Registered Securities
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities shall be computed as of
such record date; provided that no such authorization, agreement or consent by
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Issuer in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND ISSUER. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with
(1) the Trustee by a Holder or by the Issuer shall be sufficient
for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at First Union National Bank of
Georgia, ___________________; Attention: _________.
(2) the Issuer by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first class postage
prepaid, to the Issuer addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any
other address previously furnished in writing to the Trustee by the
Issuer.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Issuer or the
Trustee, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each such Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure
to mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other Holders
of Registered Securities or the sufficiency of any notice to Holders of Bearer
Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such
Holder, whether or not such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail service
or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Registered Securities as shall be
made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with
respect to any Securities pursuant to Section 301, where this Indenture provides
for notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in New York City and
in such other city or cities as may be specified in such Securities on a
Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any
such notice shall be deemed to have been given on the date of such publication
or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper
or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notifications to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent, waiver or
Act required or permitted under this Indenture shall be in the English language,
except that, if the Issuer so elects, any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. 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 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 deemed invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities or coupons, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities and coupons
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
exchange Securities of a series that are exchangeable, shall be a Legal Holiday
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in any Security or
coupon that specifically states that such provision shall apply in lieu hereof),
payment of interest or any Additional Amounts or principal (and premium, if any)
need not be made at such Place of Payment on such date and such Securities need
not be exchanged on such date, but such payment may be made and such Securities
may be exchanged on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity or on such last day for conversion or exchange, provided
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity or last day for or exchange, as the
case may be.
SECTION 113. CONFLICT WITH TRUST INDENTURE ACT. If any provision hereof
limits, qualifies or conflicts with any duties under any required provision of
the Trust Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.
SECTION 114. COUNTERPARTS. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 115. JUDGMENT The Issuer agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of the
principal of, or premium or interest, if any, or Additional Amounts on the
Securities of any series (the "Required Currency") into a currency in which a
judgment will be rendered (the "Judgment Currency"), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable, and (iii) shall not be affected by judgment being obtained for any
other sum due under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Legal Holiday in The City of New York.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if any, of
each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Issuer may
deem appropriate 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 provided in or pursuant to this Indenture or any
Securities, the Securities shall be issuable in registered form without coupons
and shall not be issuable upon the exercise of warrants. Unless otherwise
specified as contemplated by Section 301, Bearer Securities shall have interest
coupons attached.
The definitive Securities and coupons shall be printed, lithographed or
engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject to
Section 11, 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.
(TRUSTEE)
as Trustee
By: _________________________________
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or within
a series are issuable in global form, as specified as contemplated by Section
301, then, notwithstanding clause (9) 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
or any number of such Securities shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and may
also provide that the aggregate amount of Outstanding Securities of such series
represented thereby may from time to time be increased or decreased to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Issuer Order
to be delivered 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 an 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 be accompanied by, or contained in an Officers'
Certificate and need not be accompanied by an Opinion of Counsel.
The provisions of that 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 be
accompanied by or contained in an Officers' Certificate 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, and any Additional Amounts in respect of, any Security in temporary
or 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 global Security (I) in the case of global Security
in registered form, the Holder of such global Security in registered form, or
(ii) in the case of a global Security in bearer form, the Person or Persons
specified pursuant to Section 301.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable, each of
which, if so provided, may be determined from time to time by the Issuer with
respect to unissued Securities of the series when issued from time to time:
(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 percentage of the principal amount at which the Securities of the
series will be issued and, if other than the principal amount thereof, the
portion of the principal amount thereof payable upon declaration of acceleration
of maturity thereof;
(4) the date or dates, or the method for determining such date or dates, on
which the principal of the Securities of the series shall be payable;
(5) 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;
(6) the place or places, if any, other than or in addition to the Borough
of Manhattan, New York City, where the principal of (and premium, if any),
interest, if any, on, and Additional Amounts, if any, payable in respect of, the
Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer or exchange and notices
or demands to or upon the Issuer in respect of the Securities of the series and
this Indenture may be served;
(7) the period or periods within which, the price or prices at which, the
currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which the Securities of
the series may be redeemed, as a whole or in part, at the option of the Issuer,
if the Issuer is to have such an option;
(8) the obligation, if any, of the Issuer to redeem, repay or purchase the
Securities of the series pursuant to any sinking fund or analogous provision or
at the option of a Holder thereof, and the period or periods within which or the
date or dates on which, the price or prices at which, the currency or
currencies, currency unit or units or composite currency or currencies in which,
and other terms and conditions upon which the Securities of the series shall be
redeemed, repaid or purchased, as a whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than denominations of $5,000 and any integral
multiple thereof, the denomination or denominations in which any Bearer
Securities of the series shall be issuable;
(10) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(11) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(12) if other than Dollars, the Foreign Currency or Currencies in which
payment of the principal of (and premium, if any) or interest or Additional
Amounts, if any, on the Securities of the series shall be payable or in which
the Securities of the series shall be denominated;
(13) 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;
(14) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on the Securities of the series are to be payable,
at the election of the Issuer or a Holder thereof, in a currency or currencies,
currency unit or units or composite currency or currencies other than that in
which such Securities are denominated or stated to be payable, the period or
periods within which, and the terms and conditions upon which, such election may
be made, and the time and manner of, and identity of the exchange rate agent
with responsibility for, determining the exchange rate between the currency or
currencies, currency unit or units or composite currency or currencies in which
such Securities are denominated or stated to be payable and the currency or
currencies, currency unit or units or composite currency or currencies in which
such Securities are to be so payable;
(15) provisions, if any, granting special rights to the Holders of the
Securities of the series upon the occurrence of such events as may be specified;
(16) any deletions from, modifications of or additions to the Events of
Default or covenants of the Issuer with respect to the 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;
(17) whether the Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 305, and,
if Registered Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series;
(18) 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;
(19) 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;
(20) 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;
(21) 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;
(22) whether and under what circumstances the Issuer will pay Additional
Amounts on the Securities of the series to any Holder who is not a United States
Person (including any modification to the definition of such term) in respect of
any tax, assessment or governmental charge and, if so, whether the Issuer will
have the option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(23) with respect to any Securities that provide for optional redemption or
prepayment upon the occurrence of certain events (such as a change of control of
the Issuer), (i) the possible effects of such provisions on the market price of
the Issuer's securities or in deterring certain mergers, tender offers or other
takeover attempts, and the intention of the Issuer to comply with the
requirements of Rule 14e-1 under the Exchange Act and any other applicable
securities laws in connection with such provisions; (ii) whether the occurrence
of the specified events may give rise to cross-defaults on other indebtedness
such that payment on such Securities may be effectively subordinated; and (iii)
the existence of any limitation on the Issuer's financial or legal ability to
repurchase such Securities upon the occurrence of such an event (or, if true,
the lack of assurance that such a repurchase can be effected) and the impact, if
any, under the Indenture of such a failure, including whether and under what
circumstances such a failure may constitute an Event of Default; and
(24) 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, if any, appertaining to
any Bearer Securities of the series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate
record of such action(s) shall be certified by the Secretary or an Assistant
Secretary of the 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. CURRENCY; DENOMINATIONS. Unless otherwise provided as
contemplated by Section 301, the principal of, any premium and interest on and
any Additional Amounts with respect to the Securities shall be payable in
Dollars. Unless otherwise provided as contemplated by Section 301, Registered
Securities denominated in Dollars shall be issuable in registered form without
coupons in denominations of $1,000 and any integral multiple thereof, and the
Bearer Securities denominated in Dollars shall be issuable in the denominations
of $5,000 and any integral multiple thereof. Securities not denominated in
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 Chairman of the Board, its President or one of its Vice Presidents
(whether or not designated by a number or word or words added before or after
the title "vice president"), under its corporate seal reproduced thereon, and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Issuer 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 the Securities of any series, together with
any coupon appertaining thereto, executed by the Issuer to the Trustee for
authentication, together with an Issuer Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Issuer Order
shall authenticate and deliver such Securities; provided, however, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of 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 Issuer Order may set forth procedures acceptable to the Trustee for
the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate or formula, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon:
(i) an Opinion of Counsel stating that:
(a) the form or forms or terms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) all conditions precedent to the authentication and delivery
of such Securities together with any coupons appearing thereto have
been complied with and that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Issuer to the Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Issuer in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations of the
Issuer, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting the enforcement
of creditors' rights generally and to general equitable principles and
will entitle the Holders thereof to the benefits of this Indenture;
(c) all laws and requirements in respect of the execution and
delivery by Issuer of such Securities and coupons, if any, have been
complied with; and
(d) this Indenture has been qualified under the Trust Indenture
Act; and;
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, no Event of Default with
respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or an Issuer Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
Each Registered Security shall be dated the date of its authentication and
each Bearer Security shall be dated as of the date specified as contemplated by
Section 301.
No Security or coupon shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
or Security to which such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Issuer, and the Issuer shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued 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. (a) Pending the preparation of
definitive Securities of any series, the Issuer may execute, and upon Issuer
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. Such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Issuer will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Issuer in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any nonmatured coupons appertaining thereto), the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in this
Indenture. Until so exchanged, the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company
("DTC"). If any such temporary Security is issued in global form, then such
temporary global Security shall, unless otherwise provided therein, be delivered
to the London office of a depositary or common depositary (the "Common
Depositary"), for the benefit of Euroclear and CEDEL, for credit to the
respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay, but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Issuer shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Issuer. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Issuer's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified as requested by the beneficial owner thereof; provided,
however, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs Euroclear or
CEDEL, as the case may be, to request such exchange on his behalf and delivers
to Euroclear or CEDEL, as the case may be, a certificate in the form set forth
in Exhibit A-1 to this Indenture (or in such other form as may be established
pursuant to Section 301), dated no earlier than 15 days prior to the Exchange
Date, copies of which certificate shall be available from the offices of
Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive Securities
in bearer form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities for such series occurring prior to
the applicable Exchange Date shall be payable to Euroclear and CEDEL on such
Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee of a
certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the Issuer.
(c) Unless otherwise provided in or pursuant to a Board Resolution, this
Section 304(c) shall govern the exchange of temporary Securities issued in
global form through the facilities of DTC. If any such temporary Security is
issued in global form, then such temporary global security shall, unless
otherwise provided therein, be delivered to DTC for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
Without unnecessary delay, but in any event not later than the Exchange
Date, the Issuer shall deliver to the Trustee definitive Securities, in
aggregate principal amount equal to the principal amount of such temporary
global Security, executed by the Issuer. On or after the Exchange Date, such
temporary global Security shall be surrendered by DTC to the Trustee, as the
Issuer's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
registered form or permanent global registered form, or any combination thereof,
as specified as contemplated by Section 301, and, if any combination thereof is
so specified as requested by the beneficial owner thereof.
Unless otherwise specified in such temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for definitive Securities of the same series and of like
tenor following the Exchange Date when the account holder instructs DTC to
request such exchange on his behalf. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person.
Until exchanged in full as hereinabove provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities for such series occurring prior to
the applicable Exchange Date shall be payable to DTC on such Interest Payment
Date, for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date.
SECTION 305. REGISTRATION, TRANSFER AND EXCHANGE. The Issuer shall cause to
be kept at the Corporate Trust Office of the Trustee or in any office or agency
of the Issuer in a Place of Payment a register for each series of Securities
(the registers maintained in such office or in any such office or agency of the
Issuer in a Place of Payment being herein sometimes referred to collectively as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Issuer shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities on such Security
Register as herein provided. The Issuer shall have the right to remove and
replace from time to time the Security Registrar for any series of Securities;
provided that no such removal or replacement shall be effective until a
successor Security Registrar with respect to such series of Securities shall
have been appointed by the Issuer and shall have accepted such appointment by
the Issuer. 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. Whenever any such Registered
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in exchange for
Registered Securities. If (but only if) permitted by the applicable Board
Resolution and (subject to Section 303) set forth in the applicable Officers'
Certificate, or in any indenture supplemental hereto, delivered as contemplated
by Section 301, at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon surrender
of the Bearer Securities to be exchanged at any such office or agency, 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 in an amount equal to the face amount of such missing
coupon or coupons, or the surrender of such missing coupon or coupons may be
waived by the Issuer and the Trustee 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.
If provided as contemplated by Section 301, at the option of the Holder,
Registered Securities of such series may be exchanged for Bearer Securities upon
such terms and conditions as may be provided in or pursuant to this Indenture
with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by the
immediately preceding two paragraphs, 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 by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is DTC, then unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Issuer or to a nominee of such
successor to DTC. If at any time DTC notifies the Issuer that it is unwilling or
unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act if so required by applicable law or regulation, the Issuer
shall appoint a successor depositary with respect to such global Security or
Securities. If (x) a successor depositary for such global Security or Securities
is not appointed by the Issuer within 90 days after the Issuer receives such
notice or becomes aware of such unwillingness, inability or ineligibility, (y)
an Event of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of
Securities represented by such global Security or Securities advise DTC to cease
acting as depositary for such global Security or Securities or (z) the Issuer,
in its sole discretion, determines at any time that all Outstanding Securities
(but not less than all) of any series issued or issuable in the form of one or
more global Securities shall no longer be represented by such global Security or
Securities, then the Issuer shall execute, and the Trustee shall authenticate
and deliver definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such global Security or Securities. If any beneficial owner of an interest in
a permanent global Security is otherwise entitled to exchange such interest for
Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest day 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 depositary as
shall be specified in the Issuer Order with respect thereto to the Trustee, as
the Issuer's agent for such purpose; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (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
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge.
Except as otherwise provided in or pursuant to this Indenture, 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 any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any
mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the 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.
If there shall be delivered to the Issuer and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Issuer 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),
and 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 in Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the Issuer may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security, or in
exchange for a Security to which a destroyed, lost or stolen coupon appertains,
shall constitute an original additional contractual obligation of the Issuer,
whether or not the destroyed, lost or stolen Security and its coupons, if any,
or the destroyed, lost or stolen coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented, are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS RESERVED. Except as
otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on and Additional Amounts with respect
to any Registered Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Issuer maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Registered Security
may at the Issuer's option be paid by (i) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 308, to the address of such person as it appears on the Security
Register or (ii) transfer to an account maintained by the payee located inside
the United States.
Unless otherwise provided as contemplated by Section 301 with respect to
the Securities of any series, payment of interest may be made, in the case of a
Bearer Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every permanent
global Security will provide that interest, if any, payable on any Interest
Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case may be,
with respect to that portion of such permanent global Security held for its
account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office or
agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in
accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Issuer, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Issuer may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuer shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Issuer shall
deposit with the Trustee an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as provided in this
clause. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Issuer of such Special Record Date and, in the name and at the
expense of the Issuer, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Issuer, 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 therefore having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment
for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special
Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating
to such proposed date of payment and Defaulted Interest will not be
payable on such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with
the provisions of this Indenture.
(2) The Issuer may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Issuer to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of 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 Trustee and
any agent of the Issuer or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any), and (subject to
Sections 305 and 307) interest on and any Additional Amounts with respect to
such Registered Security and for all other purposes whatsoever, whether or not
such Registered Security be overdue, and neither the Issuer, the Trustee nor any
agent of the Issuer or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the bearer of any Bearer Security and the bearer of any coupon
as the absolute owner of such Security or coupon for the purpose of receiving
any payment with respect to payment thereof or on account thereof and for all
other purposes whatsoever, whether or not any payment with respect to such
Security or coupon be overdue, and neither the Issuer, the Trustee nor any agent
of the Issuer or the Trustee shall be affected by notice to the contrary.
No Holder of any beneficial interest in any global Security held on its
behalf by a depositary shall have any rights under this Indenture with respect
to such global Security, and such depositary may be treated by the Issuer, the
Trustee, and any agent of the Issuer or the Trustee as the owner of such global
Security for all purposes whatsoever. 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.
SECTION 309. CANCELLATION. All Securities and coupons surrendered for
payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it;
provided, however, where the Place of Payment is located outside of the United
States, the Paying Agent at such Place of Payment may cancel the Securities
surrendered to it for such purposes prior to delivering the Securities to the
Trustee. The Issuer may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Issuer may
have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Issuer has not issued and sold, and
all Securities so delivered shall be promptly 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, unless by an Issuer Order the Issuer 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 Securities shall be computed on the basis of a 360-day year consisting of
twelve 30-day months.ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall
upon Issuer Request cease to be of further effect with respect to any series of
Securities specified in such Issuer Request (except as to any surviving rights
of registration of transfer or exchange of Securities of such series herein
expressly provided for and any right to receive Additional Amounts, as provided
in Section 1012), and the Trustee, upon receipt of an Issuer Order, and at the
expense of the Issuer, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) appertaining to Bearer Securities surrendered in 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) 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 appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable; or
(ii) will become due and payable at their Stated Maturity within
one year; or
(iii) if redeemable at the option of the Issuer, are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount in the currency or
currencies, currency unit or units or composite currency or currencies
in which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such 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;
(2) the Issuer has paid or caused to be paid all other sums
payable hereunder by the Issuer; and
(3) the Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee and any predecessor trustee under
Section 606, the obligations of the Issuer to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations deposited with
the Trustee pursuant to Section 401 or Article 14 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any), and any interest and Additional Amounts for whose payment such money has
or Government Obligations have been deposited with or received by the Trustee,
but such money and Government Obligations need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default," wherever used herein
with respect to any particular series of Securities, means any one of the
following events (whatever the reason for such Event of Default and whether or
not it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers' Certificate establishing the terms of such series
pursuant to this Indenture:
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of that series when such
interest or Additional Amounts 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, or breach, of any covenant or
warranty of the Issuer in this Indenture or the Securities (other than
a covenant or warranty a default in the performance or the breach of
which is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Issuer
by the Trustee or to the Issuer and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) a default under any evidence of Recourse Indebtedness of the
Issuer, or under any mortgage, indenture or other instrument of the
Issuer (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 Recourse Indebtedness of 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), 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 after the expiration of any applicable grace period with
respect thereto and 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 by the Trustee or to the
Issuer and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series of a written
notice specifying such default and requiring the Issuer to cause such
indebtedness to be discharged or cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(6) the Issuer or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property; or
(D) makes a general assignment for the benefit of its creditors;
or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Issuer or any Significant
Subsidiary in an involuntary case;
(B) appoints a Custodian of the Issuer or any Significant
Subsidiary or for all or substantially all of either of its property;
or
(C) orders the liquidation of the Issuer or any Significant
Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S. Code
or any similar Federal or state law for the relief of debtors and the term
"Custodian" means any receiver, trustee, assignee, liquidator or other similar
official under any Bankruptcy Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (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, or such lesser amount as may be provided
for in the Securities of such series, by the Holders), and upon any such
declaration such principal or such lesser amount 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 has paid or deposited with the Trustee a sum
sufficient to pay in the currency or currency unit or composite
currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series):
(A) all overdue installments of interest on and any Additional
Amounts payable in respect of all Outstanding Securities of that
series and any related coupon;
(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 and any Additional
Amounts with respect thereto at the rate or rates borne by or provided
for in such Securities;
(C) to the extent that payment of such interest or Additional
Amounts 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, and any Additional Amounts with respect to
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. ACCELERATION OF MATURITY. The Issuer covenants that if:
(1) default is made in the payment of any installment of interest
or Additional Amounts, if any, on any Security of any series and any
related coupon when such interest or Additional Amount becomes due and
payable and such default continues for a period of 30 days; or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Issuer will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest and Additional Amounts, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in
such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Issuer fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Issuer or any other obligor upon such Securities and any related
coupons and collect the monies adjudged or decreed to be payable in the manner
provided by law out of the property of the Issuer or any other obligor upon such
Securities and any related coupons wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or each
Securities or in aid of the exercise of any power granted herein or therein, or
to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Issuer or any other obligor upon the Securities or the property of the
Issuer or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Issuer for the payment of
overdue principal, premium, if any, or interest or Additional Amounts) 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 any
related coupons and to file such other claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of the Securities of such series and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS. All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest and any
Additional Amounts, upon presentation of the Securities or coupons, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
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: The balance, if any, to the Issuer.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any series
or any related coupon shall have any right to institute any proceeding, judicial
or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture or any Security 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 Stated Maturity or Maturities specified in such Security or coupon
(or, in the case of redemption, on the Redemption Date or, in the case of
repayment on the Repayment Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Issuer, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of Section 306, no right or
remedy herein conferred upon or reserved to the Trustee or to each Holder of
Securities or coupons is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT. 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 any Holder may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder 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 and any
related coupons, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture or with the Securities of any series;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) the Trustee need not take any action which might involve it
in personal liability or be unduly prejudicial to the Holders of
Securities of such series not joining therein.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security
of such series or any related coupons; or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 514. WAIVER OF USURY, STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any usury, stay or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of any undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
or Additional Amounts, if any, on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date or, in the case of repayment, on or after the
Repayment Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the occurrence of any
default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such default hereunder known to the Trustee, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
default in the payment of the principal of (or premium, if any) or interest on
or any Additional Amounts with respect to any Security of such series, or in the
payment of any sinking fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the best interests of the Holders of the
Securities and coupons of such series; and provided further that in the case of
any default or breach of the character specified in Section 501(4) with respect
to the Securities and coupons of such series, no such notice to Holders shall be
given until at least 60 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to the
Securities of such series.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA
Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall
be sufficiently evidenced by an Issuer Request or Issuer Order (other
than delivery of any Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to
Section 303 which shall be sufficiently evidenced as provided therein)
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document, 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, personally or by agent or attorney, following
reasonable notice to the Issuer;
(7) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through
agents or counsel and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or counsel appointed
with due care by it hereunder; and
(8) subject to the provisions of Section 602 hereof and Sections
315(a) through 315(d) of the Trust Indenture Act, the Trustee shall
not be charged with knowledge of any Event of Default described in
Section 501(4), (5), (6) or (7) hereof unless a Responsible Officer of
the Trustee shall have actual knowledge of such Event of Default.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The
recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Issuer, and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Issuer
are true and correct, subject to the qualifications set forth therein. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Issuer of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Trustee or the Issuer,
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 of the TIA,
may otherwise deal with the Issuer with the same rights it would have if it were
not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. MONEY HELD IN TRUST. Except as provided in Section 402 and
Section 1003, 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 agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee 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 counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its 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 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 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 or any
Additional Amounts on particular Securities or any related coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING
INTERESTS. There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000.000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, state, territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Issuer. If any
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Trustee and to the
Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Issuer or by any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months; or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Issuer or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months; or
(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 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 similar situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities of
such series and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Issuer, by or pursuant to a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being 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) and shall comply with the
applicable requirements of Section 609. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Issuer and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
609, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Issuer. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Issuer or the Holders of Securities and accepted
appointment in the manner provided in Section 609, 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 and to the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Issuer or the successor Trustee,
such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee, and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the securities of one or more (but not all) series, the Issuer, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustee's co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Issuer or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any Corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any Corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of
the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series or pursuant to Section 306 issued upon original issue, exchange,
registration of transfer or partial redemption or repayment thereof, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Issuer. Wherever reference is made
in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certification of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Issuer and shall at
all times be a bank or trust company or corporation organized and doing business
and in good standing under the laws of the United States of America or of any
State or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authorities. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or the requirements of the aforesaid supervising
or examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign
by giving written notice of resignation to the Trustee for such series and to
the Issuer. The Trustee for any series of Securities may at any time terminate
the agency of an Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Issuer. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the provision
of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Issuer and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provision of this Section.
The Issuer agrees to pay to each Authenticating Agent from time to time
reasonable compensation including reimbursement of its reasonable expenses for
its services under this Section.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
(Trustee)
as Trustee
By:
as Authenticating Agent
By:
Authorized Signatory
If all of the Securities of any series may not be originally issued at one
time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the Issuer
wishes to have Securities of such series authenticated upon original issuance,
the Trustee, if so requested in writing (which writing need not be accompanied
by or contained in an Officers' Certificate by the Issuer), shall appoint in
accordance with this Section an Authenticating Agent having an office in a Place
of Payment designated by the Issuer with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND ISSUER
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the Issuer
and the Trustee that neither the Issuer nor the Trustee nor an 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(c), 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.
(1) Within 60 days after September 15 of each year commencing
with the first September 15 following the first issuance of Securities
pursuant to Section 301, if required by Section 313(a) of the Trust
Indenture Act, the Trustee shall transmit, pursuant to Section 313(c)
of the Trust Indenture Act, a brief report dated as of such September
15 with respect to any of the events specified in said Section 313(a)
which may have occurred since the later of the immediately preceding
September 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(3) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of
the Trust Indenture Act.
SECTION 703. REPORTS BY ISSUER. The Issuer will, pursuant to TIA Section
314(a):
(1) file with the Trustee, within 15 days after the Issuer is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Issuer may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Issuer is not required
to file information, documents or reports pursuant to either of said
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act 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 with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the
extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Issuer
pursuant to Section 1010 and paragraph (1) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
SECTION 704. ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS. In
accordance with TIA Section 312(a), the Issuer will furnish or cause to be
furnished to the Trustee:
(a) semiannually, with respect to Securities of each series, 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 the applicable date,
and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Issuer of any such request, a list of similar form
and content as of a date not more than 15 days prior to the time such list is
furnished,
provided however, that so long as the Trustee is the Security Registrar, no such
list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. CONSOLIDATIONS AND MERGERS OF ISSUER AND SALES, LEASES AND
CONVEYANCE PERMITTED SUBJECT TO CERTAIN CONDITIONS. The Issuer may consolidate
with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other Corporation, provided that in any such case, (1)
either the Issuer shall be the continuing corporation, or the successor
corporation shall be a Corporation organized and existing under the laws of the
United States or a state thereof and such successor corporation shall expressly
assume the due and punctual payment of the principal of (and premium, if any)
and any interest (including all Additional Amounts, if any, payable pursuant to
Section 1012) on all of the Securities, according to their tenor, and the due
and punctual performance and observance of all of the covenants and conditions
of this Indenture to be performed by the Issuer by supplemental indenture,
complying with Article Nine hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation and (2) immediately after giving
effect to such transaction and treating any indebtedness which becomes an
obligation of the Issuer or any Subsidiary as a result thereof as having been
incurred by the Issuer or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or the lapse of time, or
both, would become an Event of Default, shall have occurred and be continuing.
SECTION 802. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In case of any
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it had
been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation, instead of the
Issuer, and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the officers
of the Issuer to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance, such
charges in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL. Any
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor corporation,
complies with the provisions of this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without
the consent of any Holders of Securities or coupons, the Issuer, when authorized
by or pursuant to a Board Resolution, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer
and the assumption by any such successor of the covenants of the
Issuer herein and in the Securities; or
(2) to add to the covenants of the Issuer for the benefit of the
Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of securities, stating
that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Issuer; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal,
to change or eliminate any restrictions on the payment of principal of
or any premium or interest on or any Additional Amounts with respect
to 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 add to, delete from or revise the conditions, limitations
and restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided such provisions shall
not adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403, provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect; or
(11) to amend or supplement any provision contained herein or in
any supplemental indenture, provided that no such amendment or
supplement shall materially adversely affect the interests of the
Holders of any Securities then Outstanding.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the
consent of the Holders of not less than a majority in principal amount of all
Outstanding Securities affected by such supplemental indenture, by Act of said
Holders delivered to the Issuer and the Trustee, the Issuer, when authorized by
or pursuant to a Board Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities and any
related coupons under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium,
if any, on) or any installment of principal of or interest on or any
Additional Amounts with respect to, 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 1012 (except as
contemplated by Section 801(1) and permitted by Section 901(1), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or the
amount thereof provable in bankruptcy pursuant to Section 504, or
adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies
in which the principal of, any premium or interest on, or any
Additional Amounts with respect to any Security is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date
or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1013, 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. As a condition to
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
(subject to TIA Section 315) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any such supplemental indenture may be prepared and
executed by the Issuer and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, INTEREST AND
ADDITIONAL AMOUNTS. The Issuer covenants and agrees for the benefit of the
Holders of each series of Securities that it will duly and punctually pay the
principal of (and premium, if any) and interest on and any Additional Amounts
payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on any Bearer Securities
on or before Maturity, and any Additional Amounts payable as provided in Section
1012 in respect of such interest, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced
thereby as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the Issuer,
all payments of principal may be paid by check to the registered Holder of the
Registered Security or other person entitled thereto against surrender of such
Security.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series
are issuable only as Registered Securities, the Issuer shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Issuer in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Issuer will
maintain: (A) in the Borough of Manhattan, New York City, an office or agency
where any Securities of that series may be presented or surrendered for payment,
where any 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 (B) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series which is
located outside the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1012); provided, however, that if the Securities of
that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Issuer will maintain a Paying Agent for the Securities of that
series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange. The Issuer will give prompt written notice to the Trustee of
the location, and any change in the location, of each such office or agency. If
at any time the Issuer shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1012) at the offices specified in the Security,
and the Issuer hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the Issuer in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United
States; provided, however, that, if amounts owing with respect to any Bearer
Securities of a series are payable in Dollars, payment of principal of and any
premium and interest on any Bearer Security (including any Additional Amounts
payable on Securities of such series pursuant to Section 1012) shall be made at
the office of the designated agent of the Issuer's Paying Agent in the Borough
of Manhattan, New York City, if (but only if) payment in Dollars of the full
amount of such principal, premium, interest or Additional Amounts, as the case
may be, at all offices or agencies outside the United States maintained for the
purpose by the Issuer in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Issuer may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designations or rescission
shall in any manner relieve the Issuer of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Issuer will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Issuer hereby designates as a Place of Payment for each series of Securities
the office or agency of the Issuer in the Borough of Manhattan, New York City,
and initially appoints the Trustee at its Corporate Trust Office as Paying Agent
in such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Issuer
will maintain with respect to each such series of Securities, or as so required,
at least one exchange rate agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the
Issuer shall at any time act as its own Paying Agent with respect to any series
of any Securities and any related coupons, it will, on or before each due date
of the principal of (and premium, if any), or interest on or Additional Amounts
in respect of, any of the Securities of that series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum in the currency or
currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
principal (and premium, if any) or interest or Additional Amounts so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its action or failure
so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of
Securities and any related coupons, it will, before each due date of the
principal of (and premium, if any), or interest on or Additional Amounts in
respect of, any Securities of that series, deposit with a Paying Agent a sum (in
the currency or currencies, currency unit or units or composite currency or
currencies described in the preceding paragraph) sufficient to pay the principal
(and premium, if any) or interest or Additional Amounts, so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of its action
or failure so to act.
The Issuer will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of principal of (and
premium, if any) or interest on Securities or Additional Amounts in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Issuer (or any
other obligor upon the Securities) in the making of any such payment
of principal (and premium, if any) or interest or Additional Amounts;
and
(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 may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money
deposited with the Trustee or any Paying Agent, or then held by the Issuer, in
trust for the payment of the principal of (and premium, if any) or interest on,
or any Additional Amounts in respect of, any Security of any series or any
related coupon and remaining unclaimed for two years after such principal (and
premium, if any), interest or Additional Amounts has become due and payable
shall be paid to the Issuer upon Issuer Request or (if then held by the Issuer)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment of such principal of (and premium, if any) or interest on, or any
Additional Amounts in respect of, any Security, without interest thereon, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Issuer cause to
be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Issuer.
SECTION 1004. LIMITATIONS ON INCURRENCE OF DEBT. (a) The Issuer will not,
and will not permit any Subsidiary to, incur any Debt, other than Intercompany
Debt if, immediately after giving effect to the incurrence of such additional
Debt, the aggregate principal amount of all outstanding Debt of the Issuer and
its Subsidiaries on a consolidated basis determined in accordance with GAAP is
greater than [60%]of the sum of (i) the Total Assets as of the end of the fiscal
quarter covered in the Issuer's Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, most recently filed with the Commission (or,
if such filing is not permitted under the Exchange Act, with the Trustee) prior
to the incurrence of such additional Debt and (ii) any increase in the Total
Assets since the end of such quarter including, without limitation, any increase
in Total Assets resulting from the incurrence of such additional Debt (such
increase together with such Total Assets as at the end of such prior fiscal
quarter being referred to as the "Adjusted Total Assets");
(b) In addition to the limitation set forth in subsection (a) of this
Section 1004, the Issuer will not, and will not permit any Subsidiary to, incur
any Debt, other than Intercompany Debt, if, for the period consisting of the
four consecutive fiscal quarters most recently ended prior to the date on which
such additional Debt is to be incurred, the ratio of Consolidated Income
Available for Debt Service to the Annual Debt Service Charge shall have been
less than [1.5 to 1], on a pro forma basis after giving effect to the incurrence
of such Debt and to the application of the proceeds therefrom, and calculated on
the assumption that (i) such Debt and any other Debt incurred by the Issuer or
its Subsidiaries since the first day of such four-quarter period and the
application of the proceeds therefrom, including to refinance other Debt, had
occurred at the beginning of such period, (ii) the repayment or retirement of
any other Debt by the Issuer or its Subsidiaries since the first day of such
four-quarter period had been incurred, repaid or retained at the beginning of
such period (except that, in making such computation, the amount of Debt under
any revolving credit facility shall be computed based upon the average daily
balance of such Debt during such period), and (iii) in the case of any increase
or decrease in Total Assets, or any other acquisition or disposition by the
Issuer or any Subsidiary of any asset or group of assets, since the first day of
such four quarter period, including, without limitation, by merger, stock
purchase or sale, or asset purchase or sale, such increase, decrease or other
acquisition or disposition or any related payment of Debt had occurred as of the
first day of such period with the appropriate adjustments to net income with
respect to such increase, decrease or other acquisition or disposition being
included in such pro forma calculation. For purposes of the adjustment referred
to in clause (iii) of the preceding sentence, any income earned (or loss
incurred) as a result of any such increase, decrease, or other acquisition or
disposition referred to in such clause (iii) for a period less than such four
quarter period shall be annualized for such four quarter period.
(c) In addition to the limitations set forth in subsections (a) and (b) of
this Section 1004, the Issuer will not, and will not permit any Subsidiary to,
incur any Secured Debt if, immediately after giving effect to the incurrence of
such additional Secured Debt, the aggregate principal amount of all outstanding
Secured Debt of the Issuer and its Subsidiaries on a consolidated basis is
greater than [40%] of the Adjusted Total Assets.
(d) In addition to the limitations set forth in subsections (a), (b), and
(c) of this Section 1004, the Issuer will not, and will not permit any
Subsidiary to, incur any Debt, other than Intercompany Debt, if, immediately
after giving effect to the incurrence of such additional Debt, the Issuer and
its Subsidiaries will have Total Unencumbered Assets less than [150%] of the
aggregate outstanding principal amount of the Unsecured Debt of the Issuer and
its Subsidiaries determined on a consolidated basis in accordance with GAAP.
(e) For purposes of this Section 1004, Debt shall be deemed to be
"incurred" by the Issuer or its Subsidiaries on a consolidated basis whenever
the Issuer and its Subsidiaries on a consolidated basis shall create, assume,
guarantee or otherwise become liable in respect thereof.
SECTION 1005. [intentionally omitted]
SECTION 1006. EXISTENCE. Subject to Article Eight, the Issuer will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence, rights and franchises; provided, however, that the Issuer
shall not be required to preserve any right or franchise if (i) the Board of
Directors shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Issuer and that the loss thereof is not
disadvantageous in any material respect to the Holders, or (ii) the failure to
preserve such right or franchise would not have a material adverse effect on the
financial condition, operations, or properties of the Issuer.
SECTION 1007. MAINTENANCE OF PROPERTIES. The Issuer will cause all of its
material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Issuer or any Subsidiary from selling or otherwise disposing of its
properties.
SECTION 1008. INSURANCE. The Issuer will, and will cause each of its
Subsidiaries to, maintain insurance coverage by financially sound and reputable
insurers and in such forms and amounts and against such risks as are customary
for companies of established reputation engaged in the same or a similar
business and owning and operating similar properties.
SECTION 1009. PAYMENT OF TAXES AND OTHER CLAIMS. The Issuer will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon it or any Subsidiary or upon the income, profits or property of the
Issuer or any Subsidiary, and (2) all lawful claims for labor, materials and
supplies which, if unpaid, might by law become a lien upon the property of the
Issuer or any Subsidiary; provided, however, that the Issuer shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings.
SECTION 1010. PROVISION OF FINANCIAL INFORMATION. Whether or not the Issuer
is subject to Section 13 or 15(d) of the Exchange Act and for so long as any
Securities are outstanding, 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) (the "Financial Statements") 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) 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 Commission 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 the 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 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 1011. STATEMENT AS TO COMPLIANCE.
(1) The Issuer shall deliver to the Trustee, within 120 days
after the end of each fiscal year, a written statement (which need not
be contained in or accompanied by an Officers' Certificate) signed by
the principal executive officer, the principal financial officer or
the principal accounting officer of the Issuer, stating that:
(a) a review of the activities of the Issuer during such year and
of its performance under this Indenture has been made under his or her
supervision; and
(b) to the best of his or her knowledge, based on such review,
(a) the Issuer has complied with all the conditions and covenants
imposed on it under this Indenture throughout such year, or, if there
has been a default in the fulfillment of any such condition or
covenant, specifying each such default known to him or her and the
nature and status thereof, and (b) no event has occurred and is
containing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(2) The Issuer shall deliver to the Trustee, within five days
after the occurrence thereof, written notice of any Event of Default
or any event which after notice or lapse of time or both would become
an Event of Default pursuant to clause (4) of Section 501.
SECTION 1012. ADDITIONAL AMOUNTS. If any Securities of a series provide for
the payment of Additional Amounts, the Issuer will pay to the Holder of any
Security of such series or any coupon appertaining thereto Additional Amounts as
may be specified as contemplated by Section 301. Whenever in this Indenture
there is mentioned, in any context except in the case of Section 502(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 sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
by the terms of such series established pursuant to Section 301 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Issuer shall furnish to
the Trustee and the Paying Agent, if other than the Trustee, an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of and any premium or interest on the
Securities of that series shall be made to Holders of Securities of that series
or any related coupons who are not United States persons without withholding for
or on account of any tax, assessment or other governmental charge described in
the Securities of the series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of that series or
related coupons and the Issuer will pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. If the Trustee or
any Paying Agent, as the case may be, shall not so receive the above-mentioned
certificate, then the Trustee or such Paying Agent shall be entitled (i) to
assume that no such withholding or deduction is required with respect to any
payment of principal or interest with respect to any Securities of a series or
related coupons until it shall have received a certificate advising otherwise
and (ii) to make all payments of principal and interest with respect to the
Securities of a series or related coupons without withholding or deductions
until otherwise advised. The Issuer covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them or
in reliance on any Officers' Certificate furnished pursuant to this Section or
in reliance on the Issuer's not furnishing such an Officers' Certificate.
SECTION 1013. WAIVER OF CERTAIN COVENANTS. The Issuer may omit in any
particular instance to comply with any term, provision or condition set forth in
Sections 1004 to 1010, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
Outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Issuer and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the
Issuer to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Issuer of less than
all of the Securities of any series, the Issuer shall, at least 45 days prior to
the giving of the notice of redemption in Section 1104 (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date 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 issued on the same day with the same terms
are to be redeemed, the particular Securities to be redeemed shall be selected
not more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Issuer and the Security Registrar (if
other than itself) in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Security redeemed or to be redeemed only in part, to the portion of
the principal amount of such Security which has been or is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall be given in
the manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed. Failure to give such notice in the manner herein provided to the
Holder of any Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts,
if any;
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106,
if any, will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date;
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any;
(7) that the redemption is for a sinking fund, if such is the
case;
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the 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 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 or the Euroclear or CEDEL reference numbers
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.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
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 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 and Additional Amounts
with respect thereto, all the Securities or portions thereof which are to be
redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Issuer shall default in the payment of
the Redemption Price and accrued interest) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Issuer at the Redemption Price, together with accrued interest and
Additional Amounts, if any, to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
that, except as otherwise provided, 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 upon presentation and surrender of
those coupons at an office or agency located outside the United States (except
as otherwise provided in Section 1002).
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered Security which is
to be redeemed only in part (pursuant to the provisions of this Article or of
Article Twelve) shall be surrendered at a Place of Payment therefor (with, if
the Issuer or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuer and the Trustee duly
executed by, the Holder thereof or his attorney duly authorized in writing) and
the Issuer shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security, without service charge, a new Registered Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a
Security in global form is so surrendered, the Issuer shall execute, and the
Trustee shall authenticate and deliver to the depositary for such Security in
global form as shall be specified in the Issuer Order with respect thereto to
the Trustee, without service charge, a new Security in global form in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of such Securities of any series is herein referred to as an "optional
sinking fund payment." If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND 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 Securities previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the 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, or
which have otherwise been acquired by the Issuer; provided that such Securities
so delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60
days prior to each sinking fund payment date for Securities of any series, the
Issuer will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Issuer shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Issuer in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
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 terms of such Securities. The
Issuer covenants that at least one Business Day prior to the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Issuer is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject to
repayment at the option of the Holders thereof will contain an "Option to Elect
Repayment" form on the reverse of such Securities. In order for any Security to
be repaid at the option of the Holder, the Trustee must receive at the Place of
Payment therefor specified in the terms of such Security (or at such other place
or places of which the Issuer shall from time to time notify the Holders of such
Securities) not earlier than 60 days nor later than 30 days prior to the
Repayment Date (1) the Security so providing for such repayment together with
the "Option to Elect Repayment" form on the reverse thereof duly completed by
the Holder (or by the Holder's attorney duly authorized in writing) or (2) a
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc., or
a commercial bank or trust company in the United States setting forth the name
of the Holder of the Security, the principal amount of the Security, the
principal amount of the Security to be repaid, the CUSIP number, if any, or a
description of the tenor and terms of the Security, a statement that the option
to elect repayment is being exercised thereby and a guarantee that the Security
to be repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee not
later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denominations for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount of
such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any
Security providing for repayment at the option of the Holder thereof, exercise
of the repayment option by the Holder shall be irrevocable unless waived by the
Issuer.
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, on the Repayment Date; provided, however, that coupons whose
Stated Maturity is on or prior to the Repayment Date shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and provided further that, in
the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Issuer shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be accompanied
by all appurtenant coupons maturing after the Repayment Date, such Security may
be paid after deducting from the amount payable therefor as provided in Section
1302 an amount equal to the face amount of all such missing coupons, or the
surrender of such missing coupon or coupons may be waived by the Issuer and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment shall not
be so repaid upon surrender thereof, such principal amount (together with
interest, if any, thereon, accrued to such Repayment Date) shall, until paid,
bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any Registered
Security which is to be repaid in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge and at the expense of the Issuer, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; ISSUER'S OPTION TO EFFECT
DEFEASANCE OR COVENANT DEFEASANCE. If, pursuant to Section 301, provision is
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Issuer may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Issuer's exercise of the
above option applicable to this Section with respect to any Securities of or
within a series, the Issuer shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Issuer shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the 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 and Additional Amounts, if any, on such Securities and any
coupons appertaining thereto when such payments are due and any right of such
Holder to exchange such Securities for other Securities, (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 1012 (but only to the extent that the
Additional Amounts payable with respect to such Securities exceed the amount
deposited in respect of such Additional Amounts pursuant to Section 1404 below),
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article. Subject to compliance with this Article Fourteen, the
Issuer may exercise its option under this Section notwithstanding the prior
exercise of its option under Section 1403 with respect to such Securities and
any coupons appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Issuer's exercise of the above
option applicable to this Section with respect to any Securities of or within a
series, the Issuer shall be released from its obligations under Sections 1004 to
1010, inclusive, and, if specified pursuant to Section 301, its obligations
under any other covenant, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to be
not "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any such covenant, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Issuer may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4) or 501(8) or
otherwise, as the case may be, but, except as specified above, the remainder of
this Indenture and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Issuer shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 607
who shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment of principal of (and premium, if any) and interest, if any,
on such Securities and any coupons appertaining thereto, money in an amount, or
(3) a combination thereof, any case, in an amount, sufficient, without
consideration of any reinvestment of such principal and interest, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any) and interest, if any,
on such Outstanding Securities and any coupons appertaining thereto on the
Stated Maturity of such principal or installment of principal or interest and
(ii) any mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto.
(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 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 and, with respect to defeasance only, at any time during the period
ending on the 91st day after the date of such deposit (it being understood that
this shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Issuer has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will not 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 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 shall have delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 1402 or the covenant defeasance under Section 1403 (as
the case may be) have been complied with.
(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
in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any coupons appertaining
thereto of all sums due and to become thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section
301, in or pursuant to this Indenture or any Security 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 Foreign Currency 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 and Additional Amounts, if any, with respect to such
Security as the same becomes due out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the currency or
currency unit in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable market exchange rate for
such currency or currency unit in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such Foreign
Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations deposit
pursuant to Section 1404 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Issuer from time to time
upon Issuer Request any money or Government Obligations (or other property and
any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, New York City, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting and in general terms the action
proposed to be taken at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(b) In case at any time the Issuer, pursuant to a Board Resolution, or any
Holders of at least 10% in principal amount of the Outstanding Securities of any
series shall have requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Issuer or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, New York City, or in London for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote
at any meeting of Holders of Securities of any series, a Person shall be (1) a
Holder of one or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or Holders. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 1504. QUORUM;. The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
this Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a quorum
at the reconvening of any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need to 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 adjournment 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 persons entitled to
vote a majority in aggregate principal amount of the Outstanding Securities
represented at such meeting; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any
action is to be taken at a meeting of Holders of Securities of any series with
respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been canceled by the
Issuer of by Holders of Securities as provided in Section 1502(b), in which case
the Issuer or the Holders of Securities of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the persons entitled to vote a majority in principal amount of Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however that no
vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote
upon any resolution submitted to any meeting of Holders of Securities of any
series shall be by written ballots on which shall be subscribed the signatures
of the Holders of Securities of such series or of their representatives by proxy
and the principal amounts and serial numbers of the Outstanding Securities of
such series held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors of votes who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities of any Series shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Issuer and another to
the Trustee to be preserved by the Trustee, the latter to have attached thereto
the ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
SECURITIES IN FOREIGN CURRENCIES
SECTION 1601. APPLICABILITY OF ARTICLE. Whenever this Indenture provides
for (i) any action by, or the determination of any of the rights of Holders of
Securities of any series in which not all of such Securities are denominated in
the same currency, or (ii) any distribution to Holders of Securities, in the
absence of any provision to the contrary in the form of Security of any
particular series or pursuant to this Indenture or the Securities, any amount in
respect of any Security denominated in a currency other than Dollars shall be
treated for any such action or distribution as that amount of Dollars that could
be obtained for such amount on such reasonable basis of exchange and as of the
record date with respect to Registered Securities of such series (if any) for
such action, determination of rights for distribution (or, if there shall be no
applicable record date, such other date reasonably proximate to the date of such
action, determination of rights or distribution) as the Issuer may specify in a
written notice to the Trustee or, in the absence of such written notice, as the
Trustee may determine.
* * * * * *
10
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
COUSINS PROPERTIES INCORPORATED
By:_________________________________
Name:
Title:
Attest:
Title:
FIRST UNION NATIONAL BANK OF GEORGIA
as Trustee
By: ________________________________
Name:
Title:
Attest:
Title:
11
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the ____ day of _____________ 1996, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at ______________, ______________________, that he/she is
__________________ of COUSINS PROPERTIES INCORPORATED, one of the parties
described in and which executed the foregoing instrument, and that he/she signed
his/her name thereto by authority of the Board of Directors.
{Notarial Seal}
Notary Public
COMMISSION EXPIRES:
STATE OF )
) ss:
COUNTY OF )
On the __ day of ______________ 1996, before me personally came
_______________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at ____________, _____________, that he/she is
______________________________ of FIRST UNION NATIONAL BANK OF GEORGIA, one of
the parties described in an which executed the foregoing instrument, and that
he/she signed his/her name thereto by authority of the Board of Directors.
{Notarial Seal}
Notary Public
COMMISSION EXPIRES:
12
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
2.165-12(c)(1)(v) are herein referred to a "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise Cousins Properties Incorporated or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, amended, and the
regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted period (as
defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise your 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
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to U.S. [ ] of such interest
in the above-captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a Permanent Global
Security or an exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
{To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable}
{Name of Person Making Certification}
(Authorized Signatory)
Name:
Title:
13
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A.A IN CONNECTION WITH
THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be delivered}
This is to certify that, based solely on written certifications that we
have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, {U.S.}_____________________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in the U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Cousins Properties
Incorporated or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
{To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable}
{[Morgan Guaranty Trust Company of New York,
Brussels Office]}, as Operator of the Euroclear
System
By:
<PAGE>
EXHIBIT 5.1
September 13, 1996
Cousins Properties Incorporated
2500 Windy Ridge Parkway
Atlanta, Georgia 30339
Re: Cousins Properties Incorporated --
Shelf Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Cousins Properties Incorporated, a Georgia
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended.
The Registration Statement relates to the offering from time to time, as set
forth in the prospectus contained in the Registration Statement (the
"Prospectus") and as to be set forth in one or more supplements to the
Prospectus (each such supplement, a "Prospectus Supplement"), of the Company's
common stock, par value $1.00 per share ("Common Stock"), warrants to purchase
shares of Common Stock ("Warrants"), and debt securities ("Debt Securities"), in
an aggregate amount not to exceed $200,000,000. The Warrants are to be issued
from time to time pursuant to warrant agreements ("Warrant Agreements") between
the Company and warrant agents (each, a "Warrant Agent").
In connection with this opinion, we have examined and relied upon such
records, documents, certificates and other instruments as in our judgment are
necessary or appropriate to form the basis for the opinions hereinafter set
forth. In all such examinations, we have assumed the genuineness of signatures
on original documents and the conformity to such original documents of all
copies submitted to us as certified, conformed or photographic copies, and as to
certificates of public officials, we have assumed the same to have been properly
given and to be accurate. As to matters of fact material to this opinion, we
have relied upon statements and representations of representatives of the
Company and of public officials.
The opinions expressed herein are limited in all respects to the federal
laws of the United States of America and the laws of the States of Georgia and
New York, and no opinion is expressed with respect to the laws of any other
jurisdiction or any effect which such laws may have on the opinions expressed
herein. The opinions expressed herein are limited to the matters stated herein,
and no opinion is implied or may be inferred beyond the matters expressly stated
herein.
Based upon the foregoing and subject to the other limitations and
qualifications set forth herein, we are of the opinion that:
(i) The Company is a corporation validly existing and in good
standing under the laws of the State of Georgia;
(ii) Upon the due authorization of the issuance of shares of
Common Stock and the issuance and sale thereof as described in the
Registration Statement (together with any applicable Prospectus
Supplement), such shares will be validly issued, fully paid and
nonassessable;
(iii) Upon the due authorization of the Warrants and the issuance
and sale thereof as described in the Registration Statement (together
with any applicable Prospectus Supplement) and when duly executed by
the Company and countersigned by the applicable Warrant Agent in
accordance with the applicable Warrant Agreement, the Warrants will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their respective
terms; and
(iv) Upon the due authorization of the issuance of Debt
Securities and the issuance and sale thereof as described in the
Registration Statement (together with any applicable Prospectus
Supplement) and, when executed by the Company and duly authenticated
by the Trustee (as defined herein) in accordance with the terms of the
Indenture (as defined herein), the Debt Securities will be (x) valid
and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms and (y) entitled to
the benefits of the Indenture.
With respect to the opinion set forth in paragraph (i) above concerning the
good standing of the Company, we have relied exclusively upon certificates of
officers of the Company and a certificate of the Secretary of State of the State
of Georgia.
The opinions set forth above are subject, as to enforcement, to (i)
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting the rights and remedies of creditors generally and (ii)
general equitable principles (regardless of whether enforcement is considered in
a proceeding in equity or law).
We have assumed that the execution and delivery of, and the performance of
all obligations under, an indenture between the Company and the trustee (the
"Trustee"), substantially in the form attached to the Registration Statement as
Exhibit 4.1 (the "Indenture"), will be duly authorized by all requisite action
by the Trustee, and that the Indenture will be duly executed and delivered by,
and will be a valid and binding agreement of, the Trustee, enforceable against
the Trustee in accordance with its terms.
This opinion is given as of the date hereof, and we assume no obligation to
advise you after the date hereof of facts or circumstances that come to our
attention or changes in law that occur which could affect the opinions contained
herein. This opinion is being rendered solely for the benefit of the Company in
connection with the matters addressed herein. This opinion may not be furnished
to or relied upon by any person or entity for any purpose without our prior
written consent.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus that is included in the Registration Statement.
Very truly yours,
/s/ King & Spalding
KING & SPALDING
<PAGE>
EXHIBIT 8.1
(404) 572-4935 (404) 572-5147
September 13, 1996
Cousins Properties Incorporated
2500 Windy Ridge Parkway
Atlanta, Georgia 30339
Ladies and Gentlemen:
We have acted as counsel to Cousins Properties Incorporated (the "Company")
in connection with the Company's Registration Statement on Form S-3 filed with
the Securities and Exchange Commission on September 13, 1996 (the "Registration
Statement"). In connection therewith, you have requested our opinion with
respect to the discussion included in the Registration Statement under the
heading "Federal Income Tax Considerations."
FACTS AND ASSUMPTIONS RELIED UPON
In rendering the opinion expressed herein, we have examined such documents
as we have deemed appropriate, including (but not limited to) the Registration
Statement. In our examination of documents, we have assumed, with your consent,
that all documents submitted to us are authentic originals, or if submitted as
photocopies, that they faithfully reproduce the originals thereof, that all such
documents have been or will be duly executed to the extent required, that all
representations and statements set forth in such documents are true and correct,
and that all obligations imposed by any such documents on the parties thereto
have been or will be performed or satisfied in accordance with their terms. We
have also obtained such additional information and representations as we have
deemed relevant and necessary through consultation with officers of the Company.
We understand that our opinion will be attached as an exhibit to the
Registration Statement, and we hereby consent to such use of our opinion. All
capitalized terms used herein without definition shall have the same meaning as
in the Registration Statement.
OPINION
Based upon the foregoing, and subject to the next sentence, we are of the
opinion that the discussion contained in that portion of the Registration
Statement under the caption "Federal Income Tax Considerations", to the extent
it contains statements of applicable law rather than statements of fact or
belief by the Company, is true and accurate in all material respects and
describes the federal income tax consequences that would likely be material to a
holder of Securities. However, King & Spalding does not express any opinion as
to whether the Company has qualified, or will continue to qualify, as a REIT,
and has done no investigation or analysis regarding the Company's REIT
qualification. In addition, King & Spalding does not express any opinion as to
whether the Subsidiary Partnerships qualify as partnerships for federal income
tax purposes.
The opinion expressed herein is based upon the Code, the U.S. Treasury
Regulations promulgated thereunder, current administrative positions of the U.S.
Internal Revenue Service, and existing judicial decisions, any of which could be
changed at any time, possibly on a retroactive basis. Any such changes could
adversely effect the opinion rendered herein and the tax consequences to the
Company and the investors in the Securities. In addition, as noted above, our
opinion is based solely on the documents that we have examined, the additional
information that we have obtained, and the representations that have been made
to us, and cannot be relied upon if any of the facts contained in such documents
or in such additional information is, or later becomes, inaccurate or if any of
the representations made to us is, or later becomes, inaccurate. We are not,
however, aware of any facts or circumstances contrary to or inconsistent with
the information, assumptions, and representations upon which we have relied for
purposesof this opinion.
Finally, our opinion is limited to the tax matters specifically covered
thereby, and we have not been asked to address, nor have we addressed, the
Company's qualification as a REIT, the Subsidiary Partnerships' classification
as partnerships, or any other tax consequences of an investment in the
Securities.
Very truly yours,
/s/ King & Spalding
King & Spalding
16
<PAGE>
EXHIBIT 12.1
COUSINS PROPERTIES INCORPORATED
RATIO OF EARNINGS TO FIXED CHARGES
(in thousands)
<TABLE>
<CAPTION>
Six Months
Ended
June 30,
1991 1992 1993 1994 1995 1996
---- ---- ---- ---- ---- ----------
<S> <C> <C> <C> <C> <C> <C>
Earnings Computation
Net income ................... $ 9,108 $15,713 $11,965 $26,895 $26,342 $15,847
Provision (benefit) for income
taxes from operations ....... 244 360 (795) (166) 747 (56)
------- ------- ------- ------- ------- -------
Income before provision (benefit)
for income taxes from
operations................... 9,352 16,073 11,170 26,729 27,089 15,791
Add:
Interest expense ............ 8,077 15,153 13,990 7,673 7,447 5,561
Amortization of deferred
financing costs ............ 201 236 576 119 91 11
------- ------- ------- ------- ------- -------
Earnings for purposes of
computation ................. $17,630 $31,462 $25,736 $34,521 $34,627 $21,363
======= ======= ======= ======= ======= =======
Fixed Charges Computation
Interest expense ............. $ 8,077 $15,153 $13,990 $ 7,673 $ 7,447 $ 5,561
Capitalized interest ......... 5,139 2,867 400 1,117 5,374 3,455
Amortization of deferred
financing costs ............. 201 236 576 119 91 11
------- ------- ------- ------- ------- -------
Fixed charges for purposes of
computation ................. $13,417 $18,256 $14,966 $ 8,909 $12,912 $ 9,027
======= ======= ======= ======= ======= =======
Ratio of earning to fixed
charges ..................... 1.31 1.72 1.72 3.87 2.68 2.37
======= ======= ======= ======= ======= =======
</TABLE>
17
<PAGE>
EXHIBIT 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated February 20,
1996 included or incorporated by reference in Cousins Properties Incorporated's
Form l0-K for the year ended December 31, 1995 and to all references to our Firm
included in this registration statement.
Arthur Andersen LLP
Atlanta, Georgia
September 12, 1996
18
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Cousins Properties
Incorporated for the registration of $200,000,000 of its common stock, warrants
and debt securities and the incorporation by reference therein of our report
dated February 6, 1996, with respect to the financial statements and schedule of
CSC Associates, L.P. and our report dated February 8, 1996 with respect to the
financial statements and schedule of Haywood Mall Associates, included in the
Form l0-K of Cousins Properties Incorporated for the year ended December 31,
1995, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Atlanta, Georgia
September 12, 1996
19
<PAGE>
EXHIBIT 25.1
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM T-1
__________________________
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED,
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _____
________________________________
FIRST UNION NATIONAL BANK OF GEORGIA
(Exact name of Trustee as specified in its charter)
999 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30309 58-1079889
(Address of principal executive office) (Zip Code) (I.R.S.Employer
Identification No.)
Emily E. Katt
First Union National Bank of Georgia
999 Peachtree Street N.E., Suite 1100
Atlanta, Georgia 30309
(404) 827-7347
(Name, Address and Telephone Number of Agent for Service)
_____________________________
COUSINS PROPERTIES INCORPORATED
(Exact name of obligor as specified in its charter)
GEORGIA
(State or other jurisdiction of
incorporation or organization)
58-086952
(IRS employer identification no.)
2500 Windy Ridge Parkway
Atlanta, Georgia 30339-5671
770-955-2200
(Name, address, including zip code, and telephone number, including area code,
of principal executive offices)
______________________________
$200,000,000
SHELF-REGISTRATION
UNSECURED NON-CONVERTIBLE DEBT SECURITIES
(Title of the indenture securites)
<PAGE>
1. General information.
(a) The following are the names and addresses of each examining or supervising
authority to which the Trustee is subject:
The Comptroller of the Currency, Washington, D.C. Federal Reserve
Bank ofAtlanta, Georgia. Federal Deposit Insurance Corporation, ,
WashingtonD.C. Securities and Exchange Commission, Division
of Market Regulation, Washington, D.C.
(b) The Trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor.
The obligor is not an affiliate of the Trustee. (See Note 2 on Page 5)
3. Voting Securities of the Trustee.
The following information is furnished as to each class of voting
securities of the Trustee:
As of September 10, 1996
Column A Column B
Title of Class Amount Outstanding
Common 1,462,700 shares
Common Stock, par value $10.00 a share
4. Trusteeships under other indentures.
The Trustee is trustee under indenture for $80,000,000, 6.377%
Collateralized Notes Due February 11, 2011 issued by CSC Associates, L.P., of
which $78,993,432.54 was outstanding at August 15, 1996.
5. Interlocking directorates and similar relationships with the obligor or
underwriters.
Neither the Trustee nor any of the directors or executive officers of the
Trustee is a director, officer, partner, employee, appointee or representative
of the obligor or of any underwriter for the obligor.
(See Note 2 on Page 5)
6. Voting securities of the Trustee owned by the obligor or its officials.
Voting securities of the Trustee owned by the obligor and its directors,
partners and executive officers, taken as a group, do not exceed one percent of
the outstanding voting securities of the Trustee.
(See Notes 1 and 2 on Page 5)
7. Voting securities of the Trustee owned by underwriters or their officials.
Voting securities of the Trustee owned by any underwriter and its
directors, partners, and executive officers, taken as a group, do not exceed one
percent of the outstanding voting securities of the Trustee.
(See Notes 1 and 2 on Page 5)
8. Securities of the obligor owned or held by the Trustee.
The amount of securities of the obligor which the Trustee owns beneficially
or holds as collateral security for obligations in default does not exceed one
percent of the outstanding securities of the obligor.
(See Note 2 on Page 5)
9. Securities of underwriters owned or held by the Trustee.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of an underwriter for the obligor.
(See Note 2 on Page 5)
10. Ownership or holdings by the Trustee of voting securities of certain
affiliates or security holders of the obligor.
The Trustee does not own beneficially or hold as collateral security for
obligations in default voting securities of a person, who, to the knowledge of
the Trustee (1) holds 10% or more of the voting securities of the obligor or (2)
is an affiliate, other than a subsidiary, of the obligor.
(See Note 2 on Page 5)
11. Ownership or holdings by the Trustee of any securities of a person owning 50
percent or more of the voting securities of the obligor.
The Trustee does not own beneficially or hold as collateral security for
obligations in default any securities of a person who, to the knowledge of
Trustee, owns 50 percent or more of the voting securities of the obligor.
(See Note 2 on Page 5)
12. Indebtedness of the obligor to the Trustee.
First Union National Bank of Georgia has a Term Loan with Cousins
Properties Incorporated in the current amount of $26,544,000.
13. Defaults by the obligor.
There are no defaults.
14. Affiliations with the underwriters.
No underwriter is an affiliate of the Trustee.
15. Foreign trustee.
Not applicable.
16. List of Exhibits.
(1) Articles of Association of the Trustee as now in effect. (See Exhibit
1 of the Form T-1 filed in connection with Registration Statement No.
33-92776, which is incorporated herein by reference)
(2) Certificate of Authority of the Trustee to commence business. (See
Exhibit 2 of the Form T-1 filed in connection with Registration
Statement No. 33-92776, which is incorporated herein by reference)
(3) Authorization of the Trustee to exercise corporate trust powers.
Incorporated in Exhibit (4).
(4) By-Laws of the Trustee, as amended, to date. (See Exhibit 4 of the
Form T-1 filed in connection with Registration Statement No. 33-92776,
which is incorporated herein by reference)
(5) Not applicable.
(6) Consent by the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939. Included on Page 6 of this Form T-1 Statement.
(7) Most recent report of condition of the Trustee.
(8) Not applicable.
(9) Not applicable.
-------------------------
NOTES
-------------------------
1. Since the Trustee is a member of First Union Corporation, a bank holding
company, all of the voting securities of the Trustee are held by First Union
Corporation. The securities of First Union National Bank of Georgia are
described in Item 3.
2. Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base responsive answers to Items 2, 5, 6, 7, 8,
9, 10 and 11, the answers to said Items are based on incomplete information.
Items 2, 5, 6, 7, 8, 9, 10 and 11 may, however be considered as correct unless
amended by an amendment to this Form T-1.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, FIRST UNION NATIONAL BANK OF GEORGIA, a national
association organized and existing under the laws of the United States of
America, has duly caused this statement of eligibility and qualification to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of Atlanta, and State of Georgia on the 10th day of September 1996
FIRST UNION NATIONAL BANK OF GEORGIA
(Trustee)
BY: /s/ Emily E. Katt
Emily E. Katt, Assistant Vice President
EXHIBIT T-1 (6)
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939 and in connection
with the proposed issuance by Cousins Properties Incorporated, up to
$200,000,000 of Unsecured Non-Convertible Debt Securities, First Union National
Bank of Georgia, as the Trustee herein named, hereby consents that reports of
examinations of said Trustee by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
FIRST UNION NATIONAL BANK OF GEORGIA
BY: /s/ Frederick A. Schaal
Dated: September 10, 1996 Frederick A. Schaal, Vice President
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: First Union National Bank of Georgia Call Date: 6/30/96 ST-BK: 13-0795
Address: 999 Peachtree Street, Suite 1200 FFIEC 032
City, State, Zip: Atlanta, GA 30309 Page RC-1
FDIC Certificate No.: 20147
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for June 30, 1996
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
C300
Dollar Amounts in Thousands RCON Bil Mil Thou
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
ASSETS
1. Cash and balances are due from depository institutions
(from Schedule RC-A):
a. Noninterest-bearing balances and currency and coin (1) 0081 623,628 1.a.
b. Interest-bearing balances (2) 0071 200 1.b.
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B,
column A) 1754 193,928 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D) 1773 3,208,981 2.b.
3. Federal funds sold and securities purchased under
agreement to resell:
a. Federal funds sold 0276 139,195 3.a.
b. Securities purchased under agreements to resell 0277 994 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income
(from Schedule RC-C) RCON 2122 9,657,127 4.a.
b. LESS: Allowance for loan
and lease losses RCON 3123 146,580 4.b.
c. LESS: Allocated transfer
risk reserve RCON 3128 0 4.c. d.
Loans and leases, net of unearned income allowance,
and reserve (item 4.a minus 4.b and 4.c) 2125 9,510,547 4.d.
5. Trading assets (from Schedule RC-D) 3545 1,940 5.
6. Premises and fixed assets (including capitalized leases) 2145 145,949 6.
7. Other real estate owned (from Schedule RC-M) 2150 11,578 7.
8. Investments in unconsolidated subsidiaries and
associated companies (from Schedule RC-M) 2130 196 8.
9. Customers' liability to this bank on acceptances
outstanding 2155 10,859 9.
10. Intangible assets (from Schedule RC-M) 2143 97,599 10.
11. Other assets (from Schedule RC-F) 2160 210,856 11.
12. Total assets (sum of items 1 through 11) 2170 14,156,450 12.
__________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held from trading.
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
Legal Title of Bank: First Union National Bank of Georgia Call Date: 6/30/96 ST-BK: 13-0795
Address: 999 Peachtree Street, Suite 1200 FFIEC 032
City, State, Zip: Atlanta, GA 30309 Page RC-2
FDIC Certificate No.: 20147
Schedule RC--Continued
Dollar Amounts in Thousands RCON Bil Mil Thou
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of total of
columns A and C from Schedule RC-E) 2200 7,805,710 13.a.
(1) Noninterest-bearing (1) RCON 6631 1,308,669 13.a.(1)
(2) Interest-bearing RCON 6636 6,497,041 13.a.(2)
b. In foreign offices, Edge and Agreement
subsidiaries, and IBFs
(1) Noninterest-bearing
(2) Interest-bearing
14. Federal funds purchased and securities sold under
agreements to repurchase:
a. Federal funds purchased 0278 1,688,924 14.a.
b. Securities sold under agreements to repurchase 0279 1,187,235 14.b.
15. a. Demand notes issued to the U.S. Treasury 2840 5,992 15.a.
b. Trading liabilities (from Schedule RC-D) 3548 1,940 15.b.
16. Other borrowed money:
a. With a remaining maturity of one year or less 2332 478,417 16.a.
b. With a remaining maturity of more than one year 2333 1,922,644 16.b.
17. Mortgage indebtedness and obligations under
capitalized leases 2910 0 17.
18. Bank's liability on acceptances executed and outstanding 2920 10,859 18.
19. Subordinated notes and debentures 3200 251,450 19.
20. Other liabilities (from Schedule RC-G) 2930 137,838 20.
21. Total liabilities (sum of items 13 through 20) 2948 13,491,009 21.
22. Limited-life preferred stock and related surplus 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus 3838 0 23.
24. Common stock 3230 14,628 24.
25. Surplus (exclude all surplus related to preferred stock) 3839 374,799 25.
26. a. Undivided profits and capital reserves 3632 296,141 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities 8434 (20,127)26.b.
27. Cumulative foreign currency translation adjustments
28. Total equity capital (sum of items 23 through 27) 3210 665,441 28.
29. Total liabilities, limited life preferred stock, and
equity capital (sum of items 21, 22, and 28) 3300 14,156,450 29.
Memorandum
To be reported only with the march Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level
of auditing work performed for the bank by independent Number
external auditors as of any date during 1995 RCON 6724 N/A M.1.
1. Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank.
2. Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately).
3. Directors' examination for the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority).
4. Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority).
5. Review of the bank's financial statements by external auditors.
6. Compilation of the bank's financial statements by external auditors.
7. Other audit procedures (excluding tax preparation work).
8. No external audit work.
________
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
</TABLE>
