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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 9, 1998
IRT PROPERTY COMPANY
--------------------
(Exact Name of Registrant as Specified in its Charter)
Georgia 1-7859 58-1366611
------- ------ ----------
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
200 Galleria Parkway, N.W., Suite 1400, Atlanta, Georgia 30339
--------------------------------------------------------------
(Addresses of Principal Executive Offices, including Zip Code)
(770) 955-4406
---------------------------
(Registrant's Telephone Number, including Area Code)
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ITEM 5. OTHER EVENTS.
IRT Property Company (the "Company") has formed a Georgia limited partnership,
IRT Partners L.P. ("LP"), to enhance its acquisition opportunities by offering
potential sellers the ability to engage in tax-deferred sales in exchange for
Operating Partnership Units ("OP Units") of LP. The Company serves as general
partner of LP, and has contributed 20 of its shopping centers and related assets
and cash to LP in exchange for OP Units and partnership interests. As a result,
the Company and one of its wholly-owned subsidiaries own in excess of 90 percent
of LP, which is included in the Company's consolidated financial statements. A
copy of the Agreement of Limited Partnership of LP, as amended by Amendment No.
1 thereto, is attached hereto as an exhibit.
LP currently has several unaffiliated limited partners resulting from the
acquisition of three Florida properties by LP in August 1998. Additional
unaffiliated limited partners are expected to be added is connection with future
acquisitions of property by LP.
In connection with the Company's formation of LP and its proposed operations,
the Company's senior bank creditors requested that LP guarantee the Company's
indebtedness under the Company's existing unsecured bank credit agreement. As a
result, the Company and its bank creditors entered into an Amended and Restated
Loan Agreement, dated as of September 9, 1998, by and among the Company and
NationsBank, N.A., AmSouth Bank and First Union National Bank, as Banks,
NationsBank, N.A., as the Swing Loan Lender, and NationsBank, N.A., as the
Administrative Agent for the Banks (the "New Credit Agreement"), together with a
related guaranty ("Guaranty") from LP of the Company's indebtedness thereunder.
The Company, as issuer, LP, as guarantor, and SunTrust Bank, Atlanta, as trustee
(the "Trustee") have entered into Supplemental Indenture No. 3 ("Supplemental
Indenture No. 3"), dated as of September 9, 1998, pursuant to which LP has
guaranteed the Company's "Obligations" (as defined in the Supplemental Indenture
No. 3) under senior debt securities of the Company issued, or to be issued,
under the Indenture between the Company and the Trustee, dated November 9, 1995,
previously filed with the Company's Shelf Registration Statement No. 33-63523 on
Form S-3 (as amended, supplemented or otherwise modified through the date
hereof, the "1995 Senior Indenture").
Similarly, the Company, as issuer, LP, as guarantor, and the Trustee, as
trustee, have entered into Supplemental Indenture No. 1 ("Supplemental Indenture
No. 1"), dated as of September 9, 1998, pursuant to which LP has guaranteed the
Company's "Obligations" (as defined in Supplemental Indenture No. 1) under
senior debt securities of the Company issued, or to be issued, under the
Indenture between the Company and the Trustee, dated September 9, 1998, the form
of which was previously filed with the Company's Shelf Registration Statement
No. 333-48571 on Form S-3 (the "1998 Senior Indenture").
In addition, the Company and the Trustee have executed the Indenture between the
Company and the Trustee, dated September 9, 1998, relating to subordinated debt
securities of the Company, the form of which was previously filed with the
Company's Shelf Registration Statement No. 333-48571 on Form S-3 (the "1998
Subordinated Indenture").
Copies of the New Credit Agreement (including the Guaranty), LP's Agreement of
Limited Partnership, Supplemental Indenture No. 3, Supplemental Indenture No. 1,
the 1998 Senior Indenture and the 1998 Subordinated Indenture are included as
Exhibits hereto, and all descriptions included herein are qualified in their
entirety by reference thereto.
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ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION, AND
EXHIBITS.
C. Exhibits
4.1 Supplemental Indenture No. 3, dated September 9, 1998, by
and between IRT Property Company, IRT Partners L.P. and
SunTrust Bank, Atlanta, as Trustee, to the Indenture
between the Company and the Trustee, dated November 9,
1995, previously filed with the Company's Shelf
Registration Statement No. 33-63523 on Form S-3.
4.2 Indenture, dated September 9, 1998, by and between IRT
Property Company and SunTrust Bank, Atlanta, as Trustee,
relating to senior debt securities, the form of which was
previously filed with the Company's Shelf Registration
Statement No. 333-48571 on Form S-3.
4.3 Supplemental Indenture No. 1, dated September 9, 1998, by
and between IRT Property Company, IRT Partners L.P. and
SunTrust Bank, Atlanta, as Trustee, to the Indenture
between the Company and the Trustee, dated September 9,
1998, relating to senior debt securities (which Indenture
is filed as Exhibit 4.2 hereto).
4.4 Indenture, dated September 9, 1998, by and between IRT
Property Company and SunTrust Bank, Atlanta, as Trustee,
relating to subordinated debt securities, the form of which
was previously filed with the Company's Shelf Registration
Statement No. 333-48571 on Form S-3.
99.1 Amended and Restated Loan Agreement, dated as of September
9, 1998, by and among the Company and NationsBank, N.A.,
AmSouth Bank and First Union National Bank, as Banks,
NationsBank, N.A., as the Swing Loan Lender, and
NationsBank, N.A., as the Administrative Agent for the
Banks, including the Guaranty.
99.2 Agreement of Limited Partnership of IRT Partners L.P., and
Amendment No. 1 thereto.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
IRT PROPERTY COMPANY
(REGISTRANT)
/S/ MARY M. THOMAS
--------------------------------
Mary M. Thomas
Executive Vice President
Date: September 14, 1998
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INDEX TO EXHIBITS
Exhibit
4.1 Supplemental Indenture No. 3, dated September 9, 1998, by
and between IRT Property Company, IRT Partners L.P. and
SunTrust Bank, Atlanta, as Trustee, to the Indenture
between the Company and the Trustee, dated November 9,
1995, previously filed with the Company's Shelf
Registration Statement No. 33-63523 on Form S-3.
4.2 Indenture, dated September 9, 1998, by and between IRT
Property Company and SunTrust Bank, Atlanta, as Trustee,
relating to senior debt securities, the form of which was
previously filed with the Company's Shelf Registration
Statement No. 333-48571 on Form S-3.
4.3 Supplemental Indenture No. 1, dated September 9, 1998, by
and between IRT Property Company, IRT Partners L.P. and
SunTrust Bank, Atlanta, as Trustee, to the Indenture
between the Company and the Trustee, dated September 9,
1998, relating to senior debt securities (which Indenture
is filed as Exhibit 4.2 hereto).
4.4 Indenture, dated September 9, 1998, by and between IRT
Property Company and SunTrust Bank, Atlanta, as Trustee,
relating to subordinated debt securities, the form of which
was previously filed with the Company's Shelf Registration
Statement No. 333-48571 on Form S-3.
99.1 Amended and Restated Loan Agreement, dated as of September
9, 1998, by and among the Company and NationsBank, N.A.,
AmSouth Bank and First Union National Bank, as Banks,
NationsBank, N.A., as the Swing Loan Lender, and
NationsBank, N.A., as the Administrative Agent for the
Banks, including the Guaranty.
99.2 Agreement of Limited Partnership of IRT Partners L.P., and
Amendment No. 1 thereto.
<PAGE> 1
EXHIBIT 4.1
IRT PROPERTY COMPANY
Issuer
and
IRT PARTNERS L.P.
Guarantor
to
SUNTRUST BANK, ATLANTA
Trustee
-------------------------------------
Supplemental Indenture No. 3
Dated as of September 9, 1998
-------------------------------------
GUARANTEE OF SENIOR DEBT SECURITIES
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SUPPLEMENTAL INDENTURE NO. 3, dated as of September 9, 1998 (this
"Supplemental Indenture"), among IRT PROPERTY COMPANY, a corporation duly
organized and existing under the laws of the State of Georgia (the "Company"),
IRT PARTNERS L.P., a limited partnership duly organized and existing under the
laws of the State of Georgia (the "Guarantor"), and SUNTRUST BANK, ATLANTA, a
Georgia banking corporation duly organized and existing under the laws of the
State of Georgia, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have heretofore entered into an
Indenture dated as of November 9, 1995 (as amended, supplemented or otherwise
modified through the date hereof, the "Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit to the Company's Registration Statement on Form
S-3 (Registration No. 33-63523), providing for the issuance from time to time of
senior debt securities of the Company (the "Securities");
WHEREAS, the Company has transferred certain of its assets to the
Guarantor and, as a consequence of such transfer, the Guarantor will provide the
guaranty herein set forth (the "Guaranty") of the Obligations (as defined
herein);
WHEREAS, Section 901(9) of the Indenture permits the Company and the
Trustee to enter into indentures supplemental thereto without the consent of any
Holder of Securities to make any change to the Indenture, provided that such
change does not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect;
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Supplemental Indenture directly benefit, and are within the
partnership purposes and best interests of, the Guarantor;
WHEREAS, the Board of Directors of the Company has duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental
Indenture and the Board of Directors of the Guarantor's general partner has duly
adopted resolutions authorizing the Guarantor to execute and deliver this
Supplemental Indenture; and
WHEREAS, all other conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Guarantor hereby unconditionally guarantees to the Trustee and the Holders full
and prompt payment and performance when due, whether at maturity, by
acceleration or otherwise, of all Obligations. Each Obligation shall rank pari
passu with each other Obligation.
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ARTICLE ONE
DEFINITIONS
SECTION 1.1. Definitions. For all purposes of this Supplemental
Indenture, except as otherwise expressly provided for or unless the context
otherwise requires: (a) capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Indenture; and (b) all
references herein to Articles and Sections refer to the corresponding Articles
and Sections of this Supplemental Indenture. As used herein, "Obligations" means
(a) all payment and performance obligations of the Company (i) under the
Indenture with respect to the Securities, (ii) under the Securities and (iii) as
a result of the issuance of the Securities and (b) the obligation to pay an
amount equal to the amount of any and all damages which the Trustee and the
Holders, or any of them, may suffer by reason of a breach by either the Company
or any other obligor of any obligation, covenant or undertaking under (i) the
Indenture with respect to the Securities or (ii) the Securities.
ARTICLE TWO
GUARANTY
SECTION 2.1. Obligations Several. Regardless of whether any proposed
guarantor or any other Person or Persons is, are or shall become in any other
way responsible to the Trustee and the Holders, or any of them, for or in
respect of the Obligations or any part thereof, and regardless of whether or not
any Person or Persons now or hereafter responsible to the Trustee and the
Holders, or any of them, for the Obligations or any part thereof, whether under
the Guaranty or otherwise, shall cease to be so liable, the Guarantor hereby
declares and agrees that the Guaranty is and shall continue to be a several
obligation, shall be a continuing guaranty and shall be operative and binding,
and that the Guarantor shall have no right of subrogation with respect to the
Guaranty.
SECTION 2.2. Guaranty Final. Upon the execution and delivery of this
Supplemental Indenture by the parties hereto, this Supplemental Indenture shall
be deemed to be finally executed and delivered by the parties hereto and shall
not be subject to or affected by any promise or condition affecting or limiting
the Guarantor's liability, and no statement, representation, agreement or
promise on the part of the Trustee, the Holders, the Company, or any of them, or
any officer, employee or agent thereof, unless contained herein forms any part
of this Supplemental Indenture or has induced the making hereof or shall be
deemed in any way to affect the Guarantor's liability hereunder.
SECTION 2.3. Amendment and Waiver. No alteration or waiver of this
Supplemental Indenture or of any of its terms, provisions or conditions shall be
binding upon the parties against whom enforcement is sought unless made in
writing and signed by an authorized officer of such party or its general
partner, as applicable.
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SECTION 2.4. Dealings With the Company. The Trustee and the Holders, or
any of them, may, from time to time, without exonerating or releasing the
Guarantor in any way under the Guaranty, (i) take such further or other security
or securities for the Obligations or any part thereof as the Trustee and the
Holders, or any of them, may deem proper, consistent with the Indenture, or (ii)
release, discharge, abandon or otherwise deal with or fail to deal with any
guarantor of the Obligations or any security or securities therefor or any part
thereof now or hereafter held by the Trustee and the Holders, or any of them, or
(iii) consistent with the Indenture, amend, modify, extend, accelerate or waive
in any manner any of the provisions, terms, or conditions of the Indenture and
the Securities, all as the Trustee and the Holders, or any of them, may consider
expedient or appropriate in their sole discretion. Without limiting the
generality of the foregoing, or of Section 2.5 hereof, it is understood that the
Trustee and the Holders, or any of them, may, without exonerating or releasing
the Guarantor, give up, or modify or abstain from perfecting or taking advantage
of any security for the Obligations and accept or make any compositions or
arrangements, and realize upon any security for the Obligations when, and in
such manner, as the Trustee and the Holders, or any of them, may deem expedient,
consistent with the Indenture, all without notice to the Guarantor.
SECTION 2.5. Guaranty Unconditional. The Guarantor acknowledges and
agrees that no change in the nature or terms of the Obligations, the Indenture
or the Securities, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to the Guaranty; it
being the purpose and intent of the Guarantor, the Company, the Trustee and the
Holders that the covenants, agreements and all liabilities and obligations of
the Guarantor hereunder are absolute, unconditional and irrevocable under any
and all circumstances. Without limiting the generality of the foregoing, the
Guarantor agrees that until each and every one of the covenants and agreements
of this Supplemental Indenture is fully performed, the Guarantor's undertakings
hereunder shall not be released, in whole or in part, by any action or thing
which might, but for this Section 2.5, be deemed a legal or equitable discharge
of a surety or guarantor, or by reason of any waiver, omission of the Company,
the Trustee and the Holders, or any of them, or their failure to proceed
promptly or otherwise, or by reason of any action taken or omitted by the
Company, the Trustee and the Holders, or any of them, whether or not such action
or failure to act varies or increases the risk of, or affects the rights or
remedies of, the Guarantor or by reason of any further dealings among the
Company, the Trustee and the Holders, or any of them, or any other guarantor or
surety, and the Guarantor hereby expressly waives and surrenders any defense to
its liability hereunder, or any right of counterclaim or offset of any nature or
description which it may have or which may exist based upon, and shall be deemed
to have consented to, any of the foregoing acts, omissions, things, agreements
or waivers.
SECTION 2.6. Maximum Guaranteed Amount. The creation or existence from
time to time of Obligations in excess of the amount committed to or outstanding
on the date of this Supplemental Indenture is hereby authorized by the
Guarantor, without notice to the Guarantor, and shall in no way impair or affect
the Guaranty or the rights of the Trustee and the Holders, or any of them,
herein. It is the intention of the Guarantor, the Company, the Trustee and the
Holders, that the Guarantor's obligations hereunder shall be in, but not in
excess of, the Maximum Guaranteed Amount. The "Maximum Guaranteed Amount" shall
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mean the maximum amount which could be paid out by the Guarantor without
rendering the Guaranty void or voidable under applicable law including, without
limitation, (a) Title 11 of the United States Code, as amended, and (b)
applicable state law regarding fraudulent conveyances or fraudulent transfers.
SECTION 2.7. Bankruptcy. Upon the bankruptcy or winding up or other
distribution of assets of the Company or any Subsidiary of the Company (other
than the Guarantor) or of any surety or guarantor for the Obligations, the
rights of the Trustee and the Holders, or any of them, against the Guarantor
shall not be affected or impaired by the omission of the Trustee and the
Holders, or any of them, to prove its or their claim, as appropriate, or to
prove its or their full claim, as appropriate, and the Trustee and the Holders
may prove such claims as they see fit and may refrain from proving any claim and
in their respective discretion they may value as they see fit or refrain from
valuing any security held by the Trustee and the Holders, or any of them,
without in any way releasing, reducing or otherwise affecting the liability to
the Trustee and the Holders of the Guarantor.
SECTION 2.8. Application of Payments. The Trustee hereby acknowledges
and agrees, and each Holder shall be deemed to hereby acknowledge and agree,
that to the extent any of the Existing Senior Obligations (as defined below) is
then in default, any funds, payments, claims or distributions (the "Guaranty
Proceeds") actually received hereunder shall be made available for distribution
equally and ratably (based on the principal amounts then outstanding) among (a)
the holders of the Obligations and (b) the holders of the Existing Senior
Obligations. For purposes hereof, "Existing Senior Obligations" shall mean Debt
for borrowed money owed or guaranteed in connection with any unsecured and
non-subordinated Debt for borrowed money of the Company or the Guarantor (a)
issued in offerings registered under the Securities Act of 1933 or in placements
exempt from registration pursuant to Rule 144A or Regulation S thereunder, or
(b) otherwise incurred, which is, in either case, outstanding on the date hereof
or incurred hereafter in accordance with the Indenture. This Section 2.8 shall
not apply to any payments, funds, claims or distributions received by the
Trustee or any Holder directly or indirectly from the Company or any other
Person other than from the Guarantor hereunder. The Guarantor acknowledges and
agrees with the Trustee and each Holder as follows:
(a) to the extent any Guaranty Proceeds are distributed to the
holders of the Existing Senior Obligations, the Obligations shall not be deemed
reduced by any such distribution, and the Guarantor will continue to make
payments pursuant to the Guaranty until such time as the Obligations have been
paid in full after taking into effect any distributions of Guaranty Proceeds to
the holders of Existing Senior Obligations;
(b) nothing contained herein shall be deemed to limit, modify
or alter the rights of the Trustee and the Holders or be deemed to subordinate
the Obligations to the Existing Senior Obligations, nor give to any holder of
Existing Senior Obligations any rights of subrogation;
(c) nothing contained herein shall be deemed for the benefit
of any holders of Existing Senior Obligations nor shall anything be construed to
impose on the Trustee or any Holder any fiduciary duties, obligations or
responsibilities to the holders of the Existing Senior Obligations; and
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(d) the Guaranty is for the sole benefit of the Trustee and
the Holders and their respective successors and assigns, and any amounts
received by the Trustee and the Holders, or any of them, from whatsoever source
and applied toward the payment of the Obligations shall be applied in such order
of application as is set forth in the Indenture, if any.
SECTION 2.9. Waivers by Guarantor. The Guarantor hereby expressly
waives: (a) notice of acceptance of the Guaranty, (b) notice of the existence or
creation of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, (d) all diligence in
collection or protection of or realization upon the Obligations or any part
thereof, any obligation hereunder, or any security for any of the foregoing and
(e) all rights of subrogation, indemnification, contribution and reimbursement
against the Company, all rights to enforce any remedy the Trustee and the
Holders, or any of them, may have against the Company, and any benefit of, or
right to participate in, any collateral or security now or hereinafter held by
the Trustee and the Holders, or any of them, in respect of the Obligations, even
upon payment in full of the Obligations. Any money received by the Guarantor in
violation of this Section 2.9 shall be held in trust by the Guarantor for the
benefit of the Trustee and the Holders. If a claim is ever made upon the Trustee
and the Holders, or any of them, for the repayment or recovery of any amount or
amounts received by any of them in payment of any of the Obligations and such
Person repays all or part of such amount by reason of (a) any judgment, decree,
or order of any court or administrative body having jurisdiction over such
Person or any of its property, or (b) any good faith settlement or compromise of
any such claim effected by such Person with any such claimant, including the
Company, then in such event the Guarantor agrees that any such judgment, decree,
order, settlement, or compromise shall be binding upon the Guarantor,
notwithstanding any revocation hereof or the cancellation of any promissory note
or other instrument evidencing any of the Obligations, and the Guarantor shall
be and remain obligated to such Person hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by such Person.
SECTION 2.10. Remedies Cumulative. No delay by the Trustee and the
Holders, or any of them, in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by the Trustee and the
Holders, or any of them, of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy. No action by the
Trustee and the Holders, or any of them, permitted hereunder shall in any way
impair or affect the Guaranty. For the purpose of the Guaranty, the Obligations
shall include, without limitation, all Obligations of the Company to the Trustee
and the Holders, notwithstanding any right or power of any third party,
individually or in the name of the Company or any other Person, to assert any
claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of the Guarantor hereunder.
SECTION 2.11. Miscellaneous. The Guaranty is a guaranty of payment and
not of collection. In the event of a demand upon the Guarantor under the
Guaranty, the Guarantor shall be held and bound to the Trustee and the Holders
directly as debtor in respect of the payment of the amounts hereby guaranteed.
All reasonable costs and expenses, including attorneys' fees and expenses,
incurred by the Trustee and the Holders, or any of them, in obtaining
performance of or collecting payments due under the Guaranty shall be deemed
part
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of the Obligations guaranteed hereby. The provisions of the Guaranty are
for the benefit of the Trustee and the Holders and may not be relied upon or
enforced by any other Person without the express written consent of the Trustee
and, as to enforcement, may only be enforced in accordance with this
Supplemental Indenture and the Indenture.
SECTION 2.12. Benefit to Guarantor. The Guarantor expressly represents
and acknowledges that the issuance and sale of the Securities under the
Indenture has been, and will be, of direct interest, benefit and advantage to
the Guarantor.
SECTION 2.13. Solvency. The Guarantor expressly represents and warrants
that as of the date hereof and after giving effect to the transactions
contemplated by the Indenture (a) the capital of the Guarantor will not be
unreasonably small to conduct its business; (b) the Guarantor will not have
incurred debts, or have intended to incur debts, beyond its ability to pay such
debts as they mature; and (c) the present fair salable value of the assets of
the Guarantor is greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section 2.13, "debt" means any liability on a claim, and
"claim" means (x) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (y) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture. Except as expressly modified or
amended hereby, the Indenture continues in full force and effect and is in all
respects confirmed and preserved.
SECTION 3.2. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of Georgia.
This Supplemental Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.4. Notices. Any notice required or permitted hereunder or
under the Indenture to be given or made to the Guarantor shall be given or made
in writing and mailed, first class postage prepaid, to the Guarantor at the
address set forth below its signature hereon, or at any other address previously
furnished in writing to the Trustee and the Company by the Guarantor, with a
copy to the Company given or made in accordance with Section 105 of the
Indenture.
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SECTION 3.5. Successors and Assigns. The Guaranty shall be binding upon
the Guarantor, its successors and assigns and inure to the benefit of the
successors and assigns of the Trustee and the Holders.
SECTION 3.6. Time of the Essence. Time is of the essence with regard to
the Guarantor's performance of its obligations hereunder.
SECTION 3.7. Rights of Holders Limited. Notwithstanding anything herein
to the contrary, the rights of Holders with respect to this Supplemental
Indenture and the Guaranty shall be limited in the manner and to the extent the
rights of Holders are limited under the Indenture with respect to the Indenture
and the Securities.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
IRT PROPERTY COMPANY, as Issuer
By: /S/ MARY M. THOMAS
-----------------------------------------------
Name: Mary M. Thomas
Title: Executive Vice President
IRT PARTNERS L.P., as Guarantor
By: IRT Property Company, its general partner
By: /S/ MARY M. THOMAS
-----------------------------------------
Name: Mary M. Thomas
Title: Executive Vice President
Address: IRT Partners, L.P.
c/o IRT Property Company
200 Galleria Parkway, Suite 1400
Atlanta, Georgia 30339
Attention: Chief Financial Officer
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ PHILIP DEMOUEY
----------------------------------------------
Name: Philip DeMouey
Title: Vice President
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ KRISTINE PRALL
----------------------------------------------
Name: Kristine Prall
Title: Trust Officer
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EXHIBIT 4.2
IRT PROPERTY COMPANY
TO
SUNTRUST BANK, ATLANTA,
as Trustee
Indenture
Dated as of September 9, 1998
Senior Debt Securities
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C> <C>
[SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
</TABLE>
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<TABLE>
<S> <C> <C>
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . 14
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 111. No Personal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . 15
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 303. Execution, Authentication Delivery and Dating . . . . . . . . . . . . . . . . . 20
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . 29
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . 32
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE FIVE
</TABLE>
ii
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<TABLE>
<S> <C> <C>
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium or Make-Whole Amount,
if any, Interest and Additional Amounts . . . . . . . . . . . . . . . . . . . . 39
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 603. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . 43
SECTION 608. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 609. Acceptance of Appointment By Successor . . . . . . . . . . . . . . . . . . . . 45
SECTION 610. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 612. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 613. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . 48
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 704. Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of
Company and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 802. Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . 50
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . 50
ARTICLE NINE
</TABLE>
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<TABLE>
<S> <C> <C>
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . 52
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 53
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or
Make-Whole Amount, if any, Interest
and Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1003. Money for Securities Payments to Be Held in
Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1004. (Omitted). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1009. Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1010. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1011. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . 63
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . 65
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
</TABLE>
iv
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . 69
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . . . . . . . . . . . . . . . . . . . . . . . . 70
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . 71
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . 74
SECTION 1507. Evidence of Action Taken by Holders . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1508. Proof of Execution of Instruments . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE SIXTEEN
CONVERSION OR EXCHANGE OF SECURITIES
SECTION 1601. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1602. Election to Exchange; Notice to Trustee and Holders . . . . . . . . . . . . . . 75
SECTION 1603. No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1604. Adjustment of Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1605. Payment of Certain Taxes Upon Exchange . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1606. Shares Free and Clear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1607. Cancellation of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1608. Duties of Trustee Regarding Exchange . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1609. Repayment of Certain Funds Upon Exchange . . . . . . . . . . . . . . . . . . . . 75
SECTION 1610. Exercise of Conversion or Exchange Privilege . . . . . . . . . . . . . . . . . . 75
SECTION 1611. Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . 75
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A - FORMS OF CERTIFICATION
v
<PAGE> 7
IRT PROPERTY COMPANY
Reconciliation and tie between Trust Indenture Act of 1939, as
amended (the "1939 Act"), and Indenture, dated as of September 9, 1998
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C>
(Section)310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(Section)312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(Section)314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(Section)315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(Section)316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(Section)317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(Section)318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
</TABLE>
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including
317 of the 1939 Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
vi
<PAGE> 8
INDENTURE
INDENTURE, dated as of September 9, 1998, between IRT PROPERTY
COMPANY, a Georgia corporation (hereinafter called the "Company"), having its
principal office at 200 Galleria Parkway, Suite 1400, Atlanta, Georgia 30339,
and SunTrust Bank, Atlanta, a Georgia banking corporation, as Trustee hereunder
(hereinafter called the "Trustee"), having its Corporate Trust Office at 58
Edgewood Avenue, Room 400-Annex A, Atlanta, Georgia 30303.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance from time to time of the Securities, unlimited as to aggregate
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 therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or 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 Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper," as used in Trust Indenture Act Section 311, shall
have the meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles. In addition, the
following terms shall have the indicated respective meanings:
1
<PAGE> 9
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security, under circumstances specified therein, to be paid by the Company
in respect of certain taxes imposed on certain Holders and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means either (i) the Board of Directors of the
Company, the executive committee or any other committee or director of that
board duly authorized to act for it in respect hereof, or (ii) one or more duly
authorized officers of the Company to whom the Board of Directors of the
Company or a committee thereof has delegated the authority to act with respect
to the matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or a committee thereof, and to be in full force and
effect on the date of such certification, and delivered to the Trustee or (ii)
a certificate signed by the authorized officer or officers of the Company to
whom the Board of Directors of the Company or a committee thereof has
2
<PAGE> 10
delegated its authority (as described in the definition of Board of Directors),
and in each case, delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
"CEDEL" means Central 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 instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Depository" has the meaning specified in Section 304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the President or a Vice
President of the Company, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than as otherwise provided with respect to a Security pursuant to Section
301) as provided 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, or (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) for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 58 Edgewood Avenue,
Room 400-Annex A, Atlanta, Georgia 30303.
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"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning set forth in Section 501.
"Debt" means the principal, premium, if any, unpaid interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of the following indebtedness of the Company for
money borrowed, whether any such indebtedness exists as of the date of the
Indenture or is created, incurred, assumed or guaranteed after such date:
(i) any debt (a) for money borrowed, or (b) evidenced by a bond,
note, debenture, or similar instrument (including purchase
money obligations) given in connection with the acquisition of any
business, property or assets, whether by purchase, merger,
consolidation or otherwise, but shall not include any account payable
or other obligation created or assumed in the ordinary course of
business in connection with the obtaining of materials or services,
or (c) which is a direct or indirect obligation which arises as a
result of banker's acceptances or bank letters of credit issued to
secure obligations of the Company, or to secure the payment of
revenue bonds issued for the benefit of the Company, whether
contingent or otherwise;
(ii) any debt of others described in the preceding clause (i) which
the Company has guaranteed or for which it is otherwise liable;
(iii) the obligation of the Company, as lessee under any lease of
property which is reflected on the Company's balance sheet as a
capitalized lease; and
(iv) any deferral, amendment, renewal, extension, supplement or
refunding of any liability of the kind described in any of the
preceding clauses (i), (ii), and (iii);
provided, however, that, in computing indebtedness of the Company, there shall
be excluded any particular indebtedness if, upon or prior to the maturity
thereof, there shall have been deposited with a depository in trust money (or
evidence of indebtedness if permitted by the instrument creating such
indebtedness) in the necessary amount to pay, redeem or satisfy such
indebtedness as it becomes due, and the amount so deposited shall not be
included in any computation of the assets of the Company.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for payment of public and private debts.
"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Community" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
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"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Foreign Currency" means any currency, currency unit or composite
currency issued by the government of one or more countries other than the United
States of America or by any recognized confederation or association of such
governments.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable,
for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the Foreign Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
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"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Company to the Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel satisfactory to the
Trustee.
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"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 delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company 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 other provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except solely to the extent provided in Sections
1402 or 1403, as applicable, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in Article
Fourteen;
(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 Company; and
(v) Securities converted or exchanged into other securities or
property (including securities of other issuers, provided that such
securities are registered under Section 12 of the Exchange Act and such
issuer is then eligible to use Form S-3 (or any successor form) for a
primary offering of its securities) of the Company pursuant to or in
accordance with this Indenture if the terms of such Securities provide
for convertibility or exchange pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Trust Indenture Act Section 313, (i) the principal
amount of an Original Issue Discount Security that may be counted in making
such determination or calculation and that shall be deemed to be Outstanding
for such purpose shall be equal to the amount of principal thereof that would
be (or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined pursuant to Section 301 as of the
date such Security is originally issued by the Company, 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
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<PAGE> 15
making such determination or calculation and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Indexed Security pursuant to Section 301, and (iv) Securities owned by the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee actually 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 Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities, or coupons on behalf of the Company, or if no such Person is
authorized, the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium or
Make-Whole Amount, 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.
"Redemption Date" means, when used with respect to any security to be
redeemed in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the installment of interest payable on any
Interest Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid or repurchased at the option of the Holder, the date fixed for such
repayment or repurchase by or pursuant to this Indenture.
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<PAGE> 16
"Repayment Price" means, when used with respect to any Security to be
repaid or purchased at the option of the Holder, the price at which it is to be
repaid or repurchased pursuant to this Indenture.
"Responsible Officer" means any vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration of this Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder by the Commission.
"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 or within any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (within the meaning of Regulation S-X, promulgated under the
Securities Act) of the Company.
"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" means, when used with respect to any Security or any
installment of principal thereof or interest thereon, the date specified in
such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests of which are owned, directly
or indirectly, by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
"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
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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 or within any series shall mean only the Trustee with respect to
the Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States of or any state
or the District of Columbia or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
predetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including covenants, compliance with which
constitute conditions precedent) 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 (excluding certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, whether 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 Company. 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 612)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a
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<PAGE> 19
witness of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying that
the individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a capacity
other than his individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other reasonable manner which the
Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register or by a certificate of the Security Registrar.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such person had on
deposit with such depository, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any
other manner which the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close
of business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the
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<PAGE> 20
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, etc., the Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company 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 Company
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 Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company 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 The City
of New York and in such other city or cities as may be specified in such
Securities, and if the Securities of such series are listed on any stock
exchange outside the United States, in any place at which such Securities are
listed on a securities exchange to the extent that such securities exchange so
requires, 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.
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If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
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 Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons appertaining
thereto, 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. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or coupon appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
promoter, as such, or against any past, present or future shareholder, officer
or director, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of
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the Securities by the Holders thereof and as part of the consideration for the
issue of the Securities.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of Georgia. This Indenture
is subject to the provisions of the TIA that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity of any Security or
the last date on which a Holder has the right to convert or exchange a Security
at a particular conversion or exchange price shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
any Security or coupon other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu hereof),
payment of interest or any Additional Amounts or principal (and premium or
Make-Whole Amount, if any) need not be made at such Place of Payment on such
date, conversion or exchange need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity 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 on such last day for conversion or
exchange, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to one or more
indentures supplemental hereto or Board Resolutions, 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 Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers of the Company executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of
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authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Indenture.
SunTrust Bank, Atlanta, as Trustee
By:__________________________
Authorized Officer
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 (8) of
Section 301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges,
maturities or redemptions. Any endorsement of a Security in global form to
reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon written instruction given by such Person or Persons as shall be specified
therein or in the Company Order to be delivered to the Trustee pursuant to
Section 303 or 304. Subject to the provisions of Section 303 and, if
applicable, Section 304, the Trustee shall deliver and redeliver any Security in
permanent global form in the manner and upon written instructions given by the
Person or Persons specified therein or in the applicable Company Order. If a
Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 102.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
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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 or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (15) below), if so provided, may be determined
from time to time by the Company with respect to unissued Securities of or
within the series when issued from time to time):
(1) the title of the Securities of or within 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 or within 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 or within the series pursuant to Section 304, 305, 306, 906,
1107, or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of or within the
series shall be payable and the amount of principal payable thereon;
(4) the rate or rates (which may be fixed or variable) at which the
Securities of or within 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 consisting of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
City of Atlanta, Georgia or the Borough of Manhattan, The City of New York,
where the principal of (and premium or Make-Whole Amount, if any), interest, if
any, on, and Additional Amounts, if any, payable in respect of, Securities of
or within the series shall be payable, any Registered Securities of or within
the series may be surrendered for registration of transfer, exchange or
conversion and notices or demands to or upon the Company in respect of the
Securities of or within the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the currency or
currencies, currency unit or units or composite currency or currencies in which
and other terms and conditions upon which Securities of or within the series
may be redeemed in whole or in part, at the option of the Company, if the
Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of or within 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
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dates on which, the price or prices at which, the currency or currencies,
currency unit or units or composite currency or currencies in which, and other
terms and conditions upon which Securities of or within the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities of or
within the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer Securities of or
within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of or within the series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section
502 or, if applicable, the portion of the principal amount of Securities of or
within the series that is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of or within the
series shall be payable or in which the Securities of or within the series
shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of or within
the series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without limitation, on one
or more currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium or Make Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of or within
the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner of,
and identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are denominated or
stated to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of or within the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities of or
within the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to be
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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 or within the series
may be exchanged for Registered Securities of or within the series and vice
versa (if permitted by applicable laws and regulations), whether any Securities
of or within the series are to be issuable initially in temporary global form
and whether any Securities of or within 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 or within the series are to be issuable as a global Security, the
identity of the depository for such series;
(17) the date as of which any Bearer Securities of or within the
series and any temporary global Security representing Outstanding Securities of
or within the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of or within the series are to be issued
upon the exercise of debt warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of or
within 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 Company will have the
option to redeem such Securities rather than pay such Additional Amounts (and
the terms of any such option);
(23) the obligation, if any, of the Company to permit the Securities
of such series to be converted into or exchanged for Common Stock of the Company
or other securities or property of the Company and the terms and conditions upon
which such conversion or exchange shall be effected (including, without
limitation, the initial conversion or exchange price or rate, the conversion or
exchange period, any
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adjustment of the applicable conversion or exchange price or rate and any
requirements relative to the reservation of such shares for purposes of
conversion or exchange);
(24) if convertible or exchangeable, any applicable limitations on
the ownership or transferability of the securities or property into which such
Securities are convertible or exchangeable; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture except as permitted by
Section 905).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global form,
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or in any indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order for authentication and delivery of such
Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination), shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Bearer Securities of such
series other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its President or a Vice President, under its
corporate seal reproduced thereon, and attested by its Secretary or an
Assistant Secretary. 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 appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, 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 Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed
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by the Company to the Trustee for authentication, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company 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. 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 of 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 Company 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 Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 612 and TIA Section 315(a) through 315(d))
shall be fully protected in conclusively relying upon:
(i) an Opinion of Counsel complying with Section 102 and stating
that:
(a) the form or forms of such Securities and any coupons
have been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have
been, or will have been upon compliance with such procedures
as may be specified therein, established in conformity with
the provisions of this Indenture; and
(c) such Securities, together with any coupons
appertaining thereto, when completed pursuant to such
procedures as may be specified therein, and executed and
delivered by the Company 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 Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, 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 to such other matters as may be specified
therein; and
(d) the issuance of such Securities and any coupons will
not contravene the articles of incorporation or bylaws of the
Company or result in any violation of any of the terms or
provisions of any law or regulation or of any indenture,
mortgage or other agreement known to such counsel by which the
Company is bound; and
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(ii) an Officers' Certificate complying with Section 102 and
stating that all conditions precedent provided for in this Indenture relating
to the issuance of such Securities have been, or will have been upon compliance
with such procedures as may be specified therein, complied with and that, to
the best of the knowledge of the signers of such certificate, no Event of
Default with respect to such Securities shall have occurred and be continuing.
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 a Company Order, 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 certificate, 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.
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.
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 appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security or the Security to which such coupon appertains
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence,and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued or sold by the Company, 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 Company may execute, and upon Company 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 of
the Company executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any
series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
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(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 Company 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 Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security shall,
unless otherwise provided therein, be delivered to the London, England office of
a depository or common depository (the "Common Depository"), for the benefit of
Euroclear and CEDEL.
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 Company shall deliver to the Trustee
definitive Securities, in an aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depository to the Trustee, as the Company'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 or within 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 Depository,
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, if any, 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, if any,
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
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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 or 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 of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
or CEDEL on such Interest Payment Date upon delivery by Euroclear or 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 or 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 Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
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The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company 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 Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it or the Security Registrar may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times and to require that a copy of the Security
Register in written form be delivered to it from time to time as reasonably
requested.
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 Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered
Securities are so surrendered for exchange, the Company 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 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 Company 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 Company 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
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<PAGE> 33
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 Company 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 depository for any
permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to
a successor to DTC for such global Security selected or approved by the Company
or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depository for the
applicable global Security or Securities or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act if so required by applicable
law or regulation, the Company shall appoint a successor depository with
respect to such global Security or Securities. If (x) a successor depository
for such global Security or Securities is not appointed by the Company within
90 days after the Company receives such notice or becomes aware of such
unwillingness, inability or ineligibility, (y) an Event of Default has occurred
and is continuing and the beneficial owners representing a majority in
principal amount of the applicable series of Securities represented by such
global Security or Securities advise DTC to cease acting as depository for such
global Security or Securities or (z) the Company, 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 (provided,
however, the Company may not make such determination during the 40-day
restricted period provided by Regulation S under the Securities Act or during
any other similar period during which the Securities must be held in global
form as may be required by the Securities Act), then the Company 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 an interest for Securities of such series and of like
tenor and principal amount of another authorized form and denomination, as
specified as contemplated by Section 301 and provided that any applicable
notice provided in the permanent global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date on
which
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such interest may be so exchanged, the Company shall execute, and the
Trustee shall authenticate and deliver definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered for exchange by DTC or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company'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 before 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 Company, 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 Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
The Company 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
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<PAGE> 35
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 or to register the transfer or exchange of 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 Company, together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company 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 Company 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 actual notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company 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 Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to 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 or
Make-Whole Amount, if any), any interest on and any Additional Amounts with
respect to Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
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
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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 Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered Security may at
the Company'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 DTC, Euroclear or CEDEL, 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
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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 Company, at its election in each case, as provided in clause
(1) or (2) below:
(1) The Company 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 Company 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 Company shall deposit with the Trustee an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, 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 such Holder's address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (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 Company 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 Company
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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.
Subject to the provisions of Section 1402 and except as otherwise
specified with respect to a series of Securities in accordance with the
provisions of Section 301, in the case of any Security which is converted or
exchanged after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security, the principal of (or premium, if
any, on) which shall become due and payable, whether at a Stated Maturity or by
declaration of acceleration, call for redemption, or otherwise, prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion or exchange, and such interest (whether or not punctually paid or
duly provided for) 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
such Regular Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security which is converted
or exchanged, interest whose Stated Maturity is after the date of conversion or
exchange of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company 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 or Make-Whole Amount, if any), and (subject to Sections 305 and
307) interest on, such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company 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 Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the Holder of
any coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depository, as a Holder, with respect
to such global Security or impair, as between such depository and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange 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. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company 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 Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition
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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. Cancelled Securities and coupons held
by the Trustee shall be destroyed by the Trustee and, if required in writing by
the Company, the Trustee shall deliver a certificate of such destruction to the
Company, unless by a Company Order the Company 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 of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
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 1011), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
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) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
are to be called for redemption within one
year under arrangements
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satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium or Make-Whole Amount, 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 the Stated Maturity or Redemption
Date, as the case may be;
(2) The Company has paid or caused to be paid all or other sums
payable hereunder by the Company; and
(3) The Company 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 Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company 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.
In the event that there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of a particular series as to which it is
Trustee and if the other conditions thereto are met.
SECTION 402. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and Additional Amounts
for whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating to any
series of Securities as contemplated pursuant to Section 301, "Event of
Default," wherever used herein with respect to any
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particular series of Securities, means any one of the following events
(whatever the reason for such Event of Default and whether or not it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of or within that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, 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 Company in this Indenture with respect to any Security of that
series (other than (i) a covenant or agreement included in this Indenture solely
for the benefit of a series of Securities other than such series or (ii) a
covenant or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding Securities
of that series a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) default under a bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor), having a
principal amount outstanding in excess of $10,000,000 (other than indebtedness
which is non-recourse to the Company or the Subsidiaries), whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness 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 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company
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
and requiring the Company 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 Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
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(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree
remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code or any similar Federal or state law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of each such affected series (voting as a single class)
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, and the Make-Whole Amount, if any, on, all
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which
the Securities of such series is 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
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related coupons;
(B) the principal of (and premium or Make-Whole Amount,
if any, on) any Outstanding Securities of that series
which have become due otherwise than by such
declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for in such Securities;
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company 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
or Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company 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 or Make-Whole Amount, if any) and interest and Additional Amounts, with
interest upon any overdue principal (and premium or Make-Whole Amount, 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 Company 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 Company or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever
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situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company 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 Company for the payment of overdue principal, premium or
Make-Whole Amount, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of principal
(and premium or Make-Whole Amount, if any) and interest and Additional Amounts,
if any, owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities of such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or coupons may be prosecuted and enforced by the
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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
or Make-Whole Amount, 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 or
Make-Whole Amount, 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 or Make-Whole Amount, if any), interest
and Additional Amounts, respectively, and
THIRD: To the payment of the remainder, if any, to the Company.
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
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
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of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, 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 or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date), to convert or exchange such Securities in accordance
with Article Sixteen 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 Company, 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 has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or any acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
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SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein (but the Trustee shall have no obligation as to
the determination of such undue prejudice).
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 consent to the waiver of
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 or Make-Whole
Amount, 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 Stay or Extension Laws.
The Company 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 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 Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such suit, and that such court may
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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 or Make-Whole Amount, if any) or interest on or
Additional Amounts payable with respect to any Security on or after the
respective Stated Maturities expressed in such Security (or in the case of
redemption, on or after the Redemption Date) or to enforce the right to convert
or exchange any Security in accordance with Article Sixteen.
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 actually known to a Responsible Officer of 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 or Make-Whole
Amount, if any) or interest on or any Additional Amounts with respect to any
Security of such series, or in the payment of any sinking fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
(2) the Trustee may conclusively rely and shall be fully 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;
(3) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company 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;
(4) whenever in the administration of this Indenture the
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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;
(5) the Trustee may consult with counsel and as a condition to the
taking, suffering or omission of any action hereunder may demand an Opinion of
Counsel, and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(7) 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 Company, personally or by agent or attorney;
(8) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder; and
(9) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to
the Trustee against such risk or liability is not reasonably assured to it.
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 Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
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SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent
or any other agent of the Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to Section
613 and TIA Sections 310(b) and 311, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on, or investment of, any money received by it
hereunder.
SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder, including extraordinary
services rendered in connection with or during the continuation of a default
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) to reimburse each of the Trustee and any predecessor Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by it in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except to the extent any such expense, disbursement or
advance may be attributable to its gross negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
and each of their respective directors, officers, agents and employees for, and
to hold each of them harmless against, any loss, liability or expense, arising
out of or in connection with the acceptance or administration of the trust or
trusts or the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder except to
the extent any such loss, liability or expense may be attributable to its own
gross negligence or bad faith.
As security for the performance of the obligations of the Company
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 or Make-Whole Amount,
if any) or interest on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection
with an Event of Default described in Section 501(6) and (7), such expenses
(including the fees and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any
Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
SECTION 607. Corporate Trustee Required; Eligibility.
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 or is a subsidiary of a
corporation which shall be a Person that has a combined capital and surplus of
at least $50,000,000 and which unconditionally guarantees the obligations of
the Trustee
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hereunder. If such Trustee or Person 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 Trustee or Person
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
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of Section 613 or TIA Section 310(b) after written
request therefor by the Company 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 Company 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 Company
by or pursuant to a Board Resolution may remove the
Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section
315(e), any Holder of a Security who has been a bona
fide Holder of a Security for at least six months may,
on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee
or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of
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Trustee for any cause with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee 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 Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment, become
the successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities and accepted
appointment in the manner hereinafter provided, any Holder of a Security who
has been a bona fide Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to Securities of such series.
(f) The Company 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 Company 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 Company 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
Company, 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,
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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 Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company 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 Company 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.
(e) All monies due and owing to the Trustee shall be paid before
the Successor Trustee takes over.
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 issued upon exchange, registration of
transfer or partial
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redemption or repayment thereof or pursuant to Section 306, 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 Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
reasonably acceptable to the Company and, except as may otherwise be provided
pursuant to Section 301, 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 $25,000,000 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 Company. 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 Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of or within 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 provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its
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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 and
referred to in the within-mentioned Indenture.
SunTrust Bank, Atlanta, as Trustee
By:
-------------------------------------------
as Authenticating Agent
By:
-------------------------------------------
Authorized Officer
SECTION 612. Certain Duties and Responsibilities.
No provision of this Indenture shall require the Trustee 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 indemnity satisfactory to the Trustee against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to the
provisions of this Section.
SECTION 613. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series. In case an Event of Default shall occur and
be continuing, the Trustee shall exercise such of its rights and powers under
the applicable Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar nor any director, officer, agent or employee of any of them shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities or coupons in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after March 15 of each year commencing with the first
March 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as provided in TIA
Section 313(c) a brief report dated as of such March 15 if and to the extent
required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company 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 Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to
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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
Company 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 Company pursuant to paragraphs (1) or
(2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company 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 lists shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions.
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 Person,
provided that in any such case, (i) either the Company shall be the continuing
entity, or the successor (if other than the Company) entity shall be a Person
organized and existing under the laws of the United States or a State thereof
and such successor entity shall expressly assume the due and punctual payment of
the principal of (and premium or Make-Whole Amount, if any) and any interest
(including all Additional Amounts, if any, payable pursuant to Section 1011) on
all of the Securities, according to their tenor, the conversion or exchange
rights shall be provided for in accordance with Article Sixteen, if applicable,
or as otherwise specified pursuant to Section 301, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company by supplemental indenture, complying
with Article Nine hereof, satisfactory to the Trustee, executed and delivered to
the Trustee by such Person and (ii) immediately after giving effect to such
transaction and treating any indebtedness which becomes an obligation of the
Company or any Subsidiary as a
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result thereof as having been incurred by the Company 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 entity, such successor entity
shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein as the party of the first part, and the predecessor
entity, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor entity
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor entity, instead of the Company,
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
Company to the Trustee for authentication, and any Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, 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 Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of
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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 Company; 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,
Make-Whole Amount or Interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of any series of Securities, provided that any such
addition, change or elimination shall (i) neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision, nor (B) modify the rights of the
Holder of any such Security with respect to such provision; or (ii) become
effective only when there is no Security Outstanding; 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, including the
provisions and procedures relating to Securities convertible into or
exchangeable for other securities or property of the Company; 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 make provision with respect to the conversion or exchange
rights of Holders pursuant to the requirements of Article Sixteen, including
providing for the conversion or exchange of the Securities into any security or
property of the Company; or
(10) 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 or to make any other changes, provided that in each case, 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
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(11) to close this Indenture with respect to the authentication and
delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; or
(12) 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 in each case that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related coupons or
any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, 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 or
Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or
any premium or Make-Whole Amount payable upon the redemption thereof, or change
any obligation of the Company to pay Additional Amounts pursuant to Section
1011 (except as contemplated by Section 801(i) and permitted by Section
901(1)), or reduce the amount of the principal of an Original Issue Discount
Security or Make-Whole Amount, if any, 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
Security or any premium or Make-Whole Amount or any Additional Amounts payable
in respect thereof or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment Date, as the case
may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase the required percentage to effect such action
or to provide that certain other provisions of
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this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby; or make any change that
adversely affects the right to convert or exchange any Security as provided in
Article Sixteen or pursuant to Section 301 (except as permitted by Section
901(9) or decrease the conversion or exchange rate or increase the conversion
or exchange price of any such Security.
(4) make any change that adversely affects the right to convert or
exchange any Security as provided in Article Sixteen or pursuant to Section 301
(except as permitted by Section 901(9)) or decrease the conversion or exchange
rate or increase the conversion or exchange price of any such Security.
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 for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officer's Certificate stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that all conditions precedent
to the execution of such supplemental indenture have been complied with. 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 Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such
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supplemental indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
if any, Interest and Additional Amounts.
The Company 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 or Make-Whole Amount, if any) and interest on and any Additional
Amounts payable in respect of the Securities of that series in accordance with
the terms of such series of Securities, any coupons appertaining thereto and
this Indenture. Unless otherwise specified as contemplated by Section 301 with
respect to any series of Securities, any interest due on and any Additional
Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1011 in respect
of principal of (or premium or Make-Whole Amount, if any, on) such a Security,
shall be payable only upon presentation and surrender of the several coupons
for such interest installments as are evidenced thereby as they severally
mature. Unless otherwise specified with respect to Securities of any series
pursuant to Section 301, at the option of the Company, 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 Company 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, where Securities of that
series may be converted or exchanged in accordance with Article Sixteen, and
where notices and demands to or upon the Company 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 Company will maintain: (A) in the City of
Atlanta, Georgia or in the Borough of Manhattan, The City of New York, an office
or agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to 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 1011) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock Exchange, The
International Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in Luxembourg,
London, England or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange; and (C) subject to any laws or regulations applicable thereto, in each
Place of Payment for that
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series located outside the United States an office or agency where any
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company 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 Company 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 1011) at the offices
specified in the Security, in London, England, and the Company hereby appoints
the same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Company 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, Make-Whole Amount or interest on
or Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if the Securities
of a series are payable in Dollars, payment of principal of and any premium and
interest on any Bearer Security (including any Additional Amounts or Make-Whole
Amount payable on Securities of such series pursuant to Section 1011) shall be
made at the office of the Company's Paying Agent in the City of Atlanta,
Georgia or the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium, interest,
Additional Amounts or Make-Whole Amount, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series and related coupons, if
any, may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company 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 Company
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, 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 Company
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 Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related
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coupons, it will, on or before each due date of the principal of (and premium or
Make-Whole Amount, 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 or Make-Whole Amount, 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 Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, 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 or Make-Whole Amount,
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,
Make-Whole Amount or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company 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 or Make-Whole Amount, 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 written notice of any default by the Company
(or any other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, 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 Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company 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
Company 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
Company, in trust for the payment of the principal of (and premium or
Make-Whole Amount, if any) or interest on, or any Additional Amounts in respect
of, any Security of any series and remaining unclaimed for two years after such
principal (and premium or Make-Whole Amount, if any), interest or Additional
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Amounts has become due and payable shall be paid to the Company upon Company
Request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal of (and
premium or Make-Whole Amount, 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 Company 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 Company 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 Company.
SECTION 1004. (Omitted).
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SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the existence,
rights (charter and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders of Securities of any
series.
SECTION 1006. Maintenance of Properties.
The Company 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 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 nothing in this Section shall prevent the Company or any
Subsidiary from selling or otherwise disposing of its properties in the
ordinary course of its business.
SECTION 1007. Insurance.
The Company will, and will cause each of its Subsidiaries to, keep all
its insurable properties insured against loss or damage with commercially
reasonable amounts and types of insurance provided by insurers of recognized
responsibility.
SECTION 1008. Payment of Taxes and Other Claims.
The Company 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 Company or any Subsidiary, and (2) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien
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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.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
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 file with the Trustee copies of 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. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section
1010, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company 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, Make-Whole Amount 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
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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 Make-Whole Amount or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent
or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in the Securities
of or within 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 Company will pay to the Trustee or such Paying Agent
the Additional Amounts, if any, required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall not
so receive the above mentioned certificate, then the Trustee or such 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 Company covenants to
indemnify the Trustee and any Paying Agent and their respective officers,
directors, employees and agents for, and to hold them harmless against, any
loss, liability or expense (including but not limited to legal fees and
expenses) reasonably incurred without gross negligence or bad faith on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this Section
or in reliance on the Company's not furnishing such an Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 to 1009, inclusive, and
with any other term, provision or condition with respect to the Securities of
any series specified in accordance with Section 301 (except any such term,
provision or condition which could not be amended without the consent of all
Holders of Securities of such series pursuant to Section 902), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities of such series, 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 Company
and the duties of the Trustee in respect of any such term, provision or
condition shall remain in full force and effect.
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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 Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at
the election of the Company of less than all of the Securities of any series,
the Company 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, in writing, of such Redemption Date and of the
principal amount of Securities of such series to be redeemed and the Redemption
Price of such Securities and any accrued interest and Additional Amounts payable
with respect thereto, if any, on the Redemption Date. 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 Company shall furnish the Trustee with an Officers' Certificate
and Opinion of Counsel 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.
If any Security selected for partial redemption is converted in part
before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted or exchange portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be deemed shall be treated by the Trustee as Outstanding for
the purposes of such selection. In any case where more than one Security is
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Security.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 days nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified by the terms of such series established
pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part, or any defect in the
notice to any such Holder, shall not affect the validity of the proceedings for
the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
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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, 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, or for conversion or exchange;
(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 Company, 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 the
redemption on this Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made;
(10) the CUSIP number of such Security, if any, provided that
neither the Company nor the Trustee shall have any responsibility for any such
CUSIP number;
(11) if applicable, that a Holder of Securities who desires to
convert or exchange Securities to be redeemed must satisfy the requirements for
conversion or exchange contained in such Securities, the then existing
conversion or exchange price or rate and the date and time when the option to
convert or exchange shall expire and the place or places where such Securities
may be surrendered for conversion or exchange; and
(12) such other information as the Trustee reasonably deems
appropriate.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's written request, by the Trustee in
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the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest and Additional
Amounts payable with respect thereto, if any, on the Redemption Date), and from
and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest and Additional Amounts, if any) 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 Company at the Redemption Price, together
with accrued interest and Additional Amounts payable with respect thereto, if
any, on 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 with
respect to Securities convertible or exchangeable into other securities or
property (including securities of other issuers, provided that such securities
are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company, 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 Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in
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Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons. If any Security called
for redemption shall not be so paid upon surrender thereof for redemption, the
principal, (and premium or Make-Whole Amount, 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 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 Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by the Company; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the applicable Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such mandatory sinking
fund payment shall be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, the Company 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 amount of optional sinking fund
payments, 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 Company
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 Company 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 thereon,
together with interest, if any, thereof accrued to the Repayment Date specified
in or pursuant to the terms of such Securities and Additional Amounts, if any,
payable thereon. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date and Additional Amounts, if any, payable thereon.
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
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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 Company shall from time to time notify the Holders
of such Securities and the Trustee) not earlier than 60 days nor later than 30
days prior to the Repayment Date (1) the Security so providing for such
repayment together with the "Option to Elect Repayment" form on the reverse
thereof duly completed by the Holder (or by the Holder's attorney duly
authorized in writing) or (2) a telegram, telex, facsimile transmission or a
letter from a member of a national securities exchange, or the National
Association of Securities Dealers, Inc. ("NASD"), or a commercial bank or trust
company in the United States setting forth the name of the Holder of the
Security, the principal amount of the Security, the principal amount of the
Security to be repaid, the CUSIP number, if any, or a description of the tenor
and terms of the Security, a statement that the option to elect repayment is
being exercised thereby and a guarantee that the Security to be repaid, together
with the duly completed form entitled "Option to Elect Repayment" on the reverse
of the Security, will be received by the Trustee not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter; provided, however, that such telegram, telex, facsimile transmission or
letter shall only be effective if such Security and form duly completed are
received by the Trustee by such fifth Business Day. If less than the entire
principal amount of such Security is to be repaid in accordance with the terms
of such Security, the principal amount of such Security to be repaid, in
increments of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to the
Holder for the portion of the principal amount of such Security surrendered that
is not to be repaid, must be specified. The principal amount of any Security
providing for repayment at the option of the Holder thereof may not be repaid in
part if, following such repayment, the unpaid principal amount of such Security
would be less than the minimum authorized denomination of Securities of or
within 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 Company.
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 Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company 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 Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further
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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 Company 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 Company 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 Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, 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; Company'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 to be applicable to the Securities of any series, 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 Company may at
its option by Board Resolution at any time, with respect to such Securities and
any coupons appertaining thereto, elect to defease such Outstanding Securities
and any coupons appertaining thereto pursuant to Section 1402 (if applicable)
or Section 1403 (if applicable) upon compliance with the conditions set forth
below in this Article.
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SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company 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 Company 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 Company, 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 or
Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B) the Company'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 1011, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder including but not limited to
Section 606 hereof and (D) this Article. Subject to compliance with this
Article Fourteen, the Company 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 Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 1005 to 1009, inclusive, and,
if specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 1005
to 1009, inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to such Outstanding Securities and
any coupons appertaining thereto, the Company 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.
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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 Company shall irrevocably have deposited or caused to be
deposited with the Trustee 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 or Make-Whole Amount, if any)
and interest and Additional Amounts, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a combination thereof 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 to pay
and discharge, (i) the principal of (and premium or Make-Whole Amount, 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; provided, that the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such Government Obligations to said payments
with respect to such Securities. Before such a deposit, the Company may give to
the Trustee, in accordance with Section 1102 hereof, a notice of its election to
redeem all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption notice,
if given, shall be given effect in applying the foregoing.
(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 Company is a party or by
which it is bound (and shall not cause the Trustee to have a conflicting
interest pursuant to Section 310(b) of the TIA with respect to any Security of
the Company).
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing on
the date of such deposit or, insofar as Sections 501(6) and 501(7) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied
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until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company
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 Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be) registration is not required
under the Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) After the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) 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 Company 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 Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due
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thereon in respect of principal (and premium or Make-Whole Amount, if any) and
interest and Additional Amounts, if any, but such money need not be segregated
from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
and Additional Amounts, if any, out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the currency or
currency unit in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable market exchange rate for
such currency or currency unit in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the Conversion
Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company 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 City of Atlanta, Georgia or the Borough of
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Manhattan, The City of New York, or in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company 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 City of Atlanta, Georgia or the Borough of Manhattan,
The City of New York, or in London, England 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 Company and its
counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five (5)
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum. Except as limited
by the proviso to Section 902, any resolution presented to a meeting
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or adjourned meeting duly reconvened at which a quorum is present as
aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the 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 called by
the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of
73
<PAGE> 81
Securities of or within the series calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote of
the Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series 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 Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Holders of any or all series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Article Six) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Article.
74
<PAGE> 82
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
ARTICLE SIXTEEN
CONVERSION OR EXCHANGE OF SECURITIES
SECTION 1601. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are convertible or exchangeable for other securities or
property (including securities of other issuers, provided that such securities
are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company, except as otherwise specified as contemplated by
Section 301 for the Securities of such series.
SECTION 1602. Election to Exchange; Notice to Trustee and Holders.
The election of the Company to exchange any Securities shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities. On or prior to the seventh Business Day
prior to Maturity of the Securities, the Company shall provide written notice to
the Holders of record of the Securities and to the Trustee and will publish a
notice in an Authorized Newspaper stating whether the Company has made such
election.
SECTION 1603. No Fractional Shares.
No fractional shares or fractional securities shall be delivered upon
exchanges of Securities of any series. If more than one Security shall be
surrendered for exchange at one time by the same Holder, the number of full
shares or units which shall be delivered upon exchange shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If, except for the
provisions of this Section 1603, any Holder of a Security or Securities would be
entitled to a fractional share or unit of a security upon the exchange of such
Security or Securities, or specified portions thereof, the Company shall pay to
such Holder an amount in cash equal to the current market value of such
fractional share computed on the basis of the Closing Price of such security on
the date preceding the date on which the conversion or exchange shall be
effected in accordance with Section 1610. The "Closing Price" of any security on
any date of determination means, (i) if such security is listed or admitted to
unlisted trading privileges on a national securities exchange, the last reported
sales price on the composite tape on such exchange, or (ii) if such security is
not at the time so listed or admitted to unlisted trading privileges on a
national securities exchange, the average of the bid and asked prices of such
security in the over-the-counter market, as reported by Nasdaq or the National
Quotation Bureau, Incorporated or similar organization if neither Nasdaq nor the
National Quotation Bureau, Incorporated is no longer reporting such information,
or if not so available, the market price as determined by a nationally
recognized investment banking firm retained for this purpose by the Company.
SECTION 1604. Adjustment of Exchange Rate.
The exchange rate of Securities of any series that is exchangeable for
other securities or property (including securities of other issuers, provided
that such securities are registered under Section 12 of the Exchange Act and
such issuer is then eligible to use Form S-3 (or any successor form) for a
primary offering of its securities) shall be adjusted for any stock dividends,
stock splits, reclassification, combinations or similar transactions or any
consolidation, merger or other reorganization event in accordance with the terms
of the supplemental indenture or Board Resolution setting forth the terms of the
Securities of such series.
Whenever the exchange rate is adjusted, the Company shall compute the
adjusted exchange rate in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted exchange rate and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall forthwith
be filed at each office or agency maintained for the purpose of exchange of
Securities pursuant to Section 1002 and, if different, with the Trustee. The
Company shall forthwith cause a notice setting forth the adjusted exchange rate
to be mailed, first class postage prepaid, to each Holder of Securities of such
series at its address appearing on the Security Register and to any exchange
agent other than the Trustee.
SECTION 1605. Payment of Certain Taxes Upon Exchange.
The Company will pay any and all taxes that may be payable in respect
of the transfer and delivery of shares of other securities or property
(including securities of other issuers, provided that such securities are
registered under Section 12 of the Exchange Act and such issuer is then eligible
to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company on exchange of Securities pursuant hereto. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the delivery of shares of securities in a
name other than that of the Holder of the Security or Securities to be
exchanged, and no such transfer or delivery shall be made unless and until the
person requesting such transfer has paid to the Company the amount of any such
tax, or has established, to the satisfaction of the Company, that such tax has
been paid.
SECTION 1606. Shares Free and Clear.
The Company hereby warrants that upon exchange of Securities of any
series, the Holder of a Security shall receive all rights held by the Company in
such security for which such Security is at such time exchangeable under this
Article Sixteen, free and clear of any and all liens, claims, charges and
encumbrances other than any liens, claims, charges and encumbrances which may
have been placed on any such security by the prior owner thereof, prior to the
time such security was acquired by the Company. Except as provided in Section
1604, the Company will pay all taxes and charges with respect to the delivery of
such security delivered in exchange for Securities hereunder.
SECTION 1607. Cancellation of Security.
Upon receipt by the Trustee of Securities of any series delivered to it
for exchange under this Article Sixteen, the Trustee shall cancel and dispose of
the same as provided in Section 309.
SECTION 1608. Duties of Trustee Regarding Exchange.
Neither the Trustee nor any exchange agent shall at any time be under
any duty or responsibility to any Holder of Securities of any series that is
exchangeable into other securities or property (including securities of other
issuers, provided that such securities are registered under Section 12 of the
Exchange Act and such issuer is then eligible to use Form S-3 (or any successor
form) for a primary offering of its securities) of the Company to determine
whether any facts exist which may require any adjustment of the exchange rate,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in
making the same. Neither the Trustee nor any exchange agent shall be accountable
with respect to the validity or value (or the kind or amount) of any securities
or property (including securities of other issuers, provided that such
securities are registered under Section 12 of the Exchange Act and such issuer
is then eligible to use Form S-3 (or any successor form) for a primary offering
of its securities) of the Company, or of any Securities and neither the Trustee
nor any exchange agent makes any representation with respect thereto. Subject to
the provisions of Section 612, neither the Trustee nor any exchange agent shall
be responsible for any failure of the Company to issue, transfer or deliver any
stock certificates or other securities or property (including securities of
other issuers, provided that such securities are registered under Section 12 of
the Exchange Act and such issuer is then eligible to use Form S-3 (or any
successor form) for a primary offering of its securities) upon the surrender of
any Security for the purpose of exchange or to comply with any of the covenants
of the Company contained in this Article Sixteen or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of the Company.
SECTION 1609. Repayment of Certain Funds Upon Exchange.
Any funds which at any time shall have been deposited by the Company or
on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Securities (including funds deposited for the sinking fund referred to in
Article Twelve hereof) and which shall not be required for such purposes because
of the exchange of such Securities as provided in this Article Sixteen shall
after such exchange be repaid to the Company by the Trustee upon the Company's
written request.
SECTION 1610. Exercise of Conversion or Exchange Privilege.
In order to exercise a conversion or exchange privilege, the Holder of
a Security of a series with such a privilege shall surrender such Security to
the Company at the office or agency maintained for that purpose pursuant to
Section 1002, accompanied by written notice to the Company that the Holder
elects to convert or exchange such Security or a specified portion thereof. Such
notice shall also state, if different from the name or names (with address) in
which the Securities are registered, the name or names in which the Securities
or property (including securities of other issuers, provided that such
securities are registered under Section 12 of the Exchange Act and such issuer
is then eligible to use Form S-3 (or any successor form) for a primary offering
of its securities) of the Company which shall be issuable on such conversion or
exchange shall be issued. Securities surrendered for conversion or exchange
shall (if so required by the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to the Company and
the Trustee duly executed by the registered Holder or its attorney duly
authorized in writing; and Securities so surrendered for conversion or exchange
during the period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date (excluding
Securities or portions thereof called for redemption during such period) shall
also be accompanied by payment in funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of such Security then being converted, and such interest shall be payable
to such registered Holder notwithstanding the conversion or exchange of such
Security, subject to the provisions of Section 307 relating to the payment of
Defaulted Interest by the Company. As promptly as practicable after the receipt
of such notice and of any payment required pursuant to a Board Resolution 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 setting forth the terms of such series of Security, and the surrender of
such Security in accordance with such reasonable regulations as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency at
which such Security is surrendered, to such Holder or on its written order,
securities or property (including securities of other issuers, provided that
such securities are registered under Section 12 of the Exchange Act and such
issuer is then eligible to use Form S-3 (or any successor form) for a primary
offering of its securities) of the Company issuable or deliverable upon the
conversion or exchange of such Security (or specified portion thereof), in
accordance with the provisions of such Board Resolution, Officers' Certificate
or supplemental indenture, and cash as provided therein in respect of any
fractional share otherwise issuable upon such conversion or exchange. Such
conversion or exchange shall be deemed to have been effected immediately prior
to the close of business on the date on which such notice and such payment, if
required, shall have been received in proper order for conversion or exchange by
the Company and such Security shall have been surrendered as aforesaid (unless
such Holder shall have so surrendered such Security and shall have instructed
the Company to effect the conversion or exchange on a particular date following
such surrender and such Holder shall be entitled to convert or exchange such
Security on such date, in which case such conversion or exchange shall be deemed
to be effected immediately prior to the close of business on such date) and at
such time the rights of the Holder of such Security as such Security Holder
shall cease and the person or persons in whose name or names any securities or
property (including securities of other issuers, provided that such securities
are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company shall be issuable or deliverable upon such conversion
or exchange shall be deemed to have become the Holder or Holders of record of
the shares represented thereby. Except as set forth above and subject to the
final paragraph of Section 307, no payment or adjustment shall be made upon any
conversion or exchange on account of any interest accrued on the Securities
surrendered for conversion or exchange or on account of any interest or
dividends on the Securities or property (including securities of other issuers,
provided that such securities are registered under Section 12 of the Exchange
Act and such issuer is then eligible to use Form S-3 (or any successor form) for
a primary offering of its securities) of the Company issued or delivered upon
such conversion or exchange.
Notwithstanding anything to the contrary contained herein, no Holder
may exercise any conversion or exchange privilege or right, if as a result of
such conversion or exchange such Person would be deemed to beneficially own, in
any capacity, directly or indirectly, more than 9.9% of the value of the
Company's then outstanding capital stock, and the Company and the Trustee may
take any action deemed necessary to prevent the loss of the Company's status
under the Internal Revenue Code of 1986, as amended, as a "real estate
investment trust" as a result of any conversion or exchange of any Security.
In the case of any Security which is converted or exchanged in part
only, upon such conversion or exchange the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted
or unexchanged portion of such Security.
SECTION 1611. Effect of Consolidation or Merger on Conversion
Privilege.
In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person formed
by such consolidation or the Person into which the Company shall have been
merged or the Person which shall have acquired such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then outstanding of any series that is convertible
into securities of the Company shall have the right, which right shall be the
exclusive conversion right thereafter available to said Holder (until the
expiration of the conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such consolidation, merger or sale by a holder
of the number of shares or units of securities of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger or sale, subject to compliance with the other provisions of this
Indenture, such Security and such supplemental indenture. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in such Security. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers or sales. It is expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of Common Stock of the
Company or other securities, into which the Security is convertible do not
receive shares of common stock or corresponding other securities of the
surviving corporation, but receive other securities, cash or other property or
any combination thereof, Holders of Securities shall not have the right to
thereafter convert their Securities into common stock or other securities having
substantially identical terms as the Company securities, into which the Security
was originally convertible, of the surviving corporation or the corporation
which shall have acquired such assets, but rather, shall have the right upon
such conversion to receive the other securities, cash or other property
receivable by a holder of the number of shares of Common Stock or such or other
securities of the Company into which the Securities held by such holder might
have been converted immediately prior to such consolidation, merger or sale, all
as more fully provided in the first sentence of this Section 1611. Anything in
this Section 1611 to the contrary notwithstanding, the provisions of this
Section 1611 shall not apply to a merger or consolidation of another corporation
with or into the Company pursuant to which both of the following conditions are
applicable: (i) the Company is the surviving corporation and (ii) the
outstanding shares of Company Common Stock or other securities of the Company
into which the Security was originally convertible are not changed or converted
into any other securities or property (including cash) or reclassified pursuant
to the terms of such merger or consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto; and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers hereunto duly authorized, all as
of the day and year first above written.
IRT PROPERTY COMPANY
By: /S/ MARY M. THOMAS
-------------------------------------
Name: Mary M. Thomas
------------------------------
Title: Executive Vice President
-----------------------------
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ PHILIP DEMOUEY
-------------------------------------
Name: Philip DeMouey
------------------------------
Title: Vice President
-----------------------------
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ KRISTINE PRALL
-------------------------------------
Name: Kristine Prall
------------------------------
Title: Trust Officer
-----------------------------
75
<PAGE> 83
EXHIBIT A
FORM 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 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
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise__________________ or its agent that such
financial institution will provide a certificate within a reasonable time
stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by a financial institution for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.1635(c)(2)(i)(D)(7)), and, such financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), certifies that it has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date. This certificate excepts and does not
relate to [U.S.$] of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand an
exchange for an interest in a permanent global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest)
cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If
<PAGE> 84
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:_________________, ____ [To be dated no earlier than the 15th
day prior to the earlier of (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 Signator)
Name:
Title:
<PAGE> 85
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, (U.S.$)
principal amount of the above-captioned Securities (i) is owned by persons(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 United States 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_________________________ or its agent that such financial institution
will provide a certificate within a reasonable time stating that it agrees to
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 a financial institution 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 that such 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
<PAGE> 86
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated:_________________________ , ____
[To be dated no earlier than the earlier of the Exchange Date or the relevant
Interest Payment Date occurring prior to the Exchange Date, as applicable]
,
as
By:
<PAGE> 1
EXHIBIT 4.3
IRT PROPERTY COMPANY
Issuer
and
IRT PARTNERS L.P.
Guarantor
to
SUNTRUST BANK, ATLANTA
Trustee
------------------------------------
Supplemental Indenture No. 1
Dated as of September 9, 1998
------------------------------------
GUARANTEE OF SENIOR DEBT SECURITIES
<PAGE> 2
SUPPLEMENTAL INDENTURE NO. 1, dated as of September 9, 1998 (this
"Supplemental Indenture"), among IRT PROPERTY COMPANY, a corporation duly
organized and existing under the laws of the State of Georgia (the "Company"),
IRT PARTNERS L.P., a limited partnership duly organized and existing under the
laws of the State of Georgia (the "Guarantor"), and SUNTRUST BANK, ATLANTA, a
Georgia banking corporation duly organized and existing under the laws of the
State of Georgia, as Trustee (the "Trustee").
RECITALS
WHEREAS, the Company and the Trustee have heretofore entered into an
Indenture dated as of September 9, 1998 (as amended, supplemented or otherwise
modified through the date hereof, the "Indenture"), a form of which has been
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, as an exhibit to the Company's Registration Statement on Form
S-3 (Registration No. 333-48571), providing for the issuance from time to time
of senior debt securities of the Company (the "Securities");
WHEREAS, the Company has transferred certain of its assets to the
Guarantor and, as a consequence of such transfer, the Guarantor will provide the
guaranty herein set forth (the "Guaranty") of the Obligations (as defined
herein);
WHEREAS, Section 901(10) of the Indenture permits the Company and the
Trustee to enter into indentures supplemental thereto without the consent of any
Holder of Securities to make any change to the Indenture, provided that such
change does not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect;
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Supplemental Indenture directly benefit, and are within the
partnership purposes and best interests of, the Guarantor;
WHEREAS, the Board of Directors of the Company has duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental
Indenture and the Board of Directors of the Guarantor's general partner has duly
adopted resolutions authorizing the Guarantor to execute and deliver this
Supplemental Indenture; and
WHEREAS, all other conditions and requirements necessary to make this
Supplemental Indenture, when duly executed and delivered, a valid and binding
agreement in accordance with its terms and for the purposes herein expressed,
have been performed and fulfilled.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Guarantor hereby unconditionally guarantees to the Trustee and the Holders full
and prompt payment and performance when due, whether at maturity, by
acceleration or otherwise, of all Obligations. Each Obligation shall rank pari
passu with each other Obligation.
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ARTICLE ONE
DEFINITIONS
SECTION 1.1. Definitions. For all purposes of this Supplemental
Indenture, except as otherwise expressly provided for or unless the context
otherwise requires: (a) capitalized terms used but not defined herein shall have
the respective meanings assigned to them in the Indenture; and (b) all
references herein to Articles and Sections refer to the corresponding Articles
and Sections of this Supplemental Indenture. As used herein, "Obligations" means
(a) all payment and performance obligations of the Company (i) under the
Indenture with respect to the Securities, (ii) under the Securities and (iii) as
a result of the issuance of the Securities and (b) the obligation to pay an
amount equal to the amount of any and all damages which the Trustee and the
Holders, or any of them, may suffer by reason of a breach by either the Company
or any other obligor of any obligation, covenant or undertaking under (i) the
Indenture with respect to the Securities or (ii) the Securities.
ARTICLE TWO
GUARANTY
SECTION 2.1. Obligations Several. Regardless of whether any proposed
guarantor or any other Person or Persons is, are or shall become in any other
way responsible to the Trustee and the Holders, or any of them, for or in
respect of the Obligations or any part thereof, and regardless of whether or not
any Person or Persons now or hereafter responsible to the Trustee and the
Holders, or any of them, for the Obligations or any part thereof, whether under
the Guaranty or otherwise, shall cease to be so liable, the Guarantor hereby
declares and agrees that the Guaranty is and shall continue to be a several
obligation, shall be a continuing guaranty and shall be operative and binding,
and that the Guarantor shall have no right of subrogation with respect to the
Guaranty.
SECTION 2.2. Guaranty Final. Upon the execution and delivery of this
Supplemental Indenture by the parties hereto, this Supplemental Indenture shall
be deemed to be finally executed and delivered by the parties hereto and shall
not be subject to or affected by any promise or condition affecting or limiting
the Guarantor's liability, and no statement, representation, agreement or
promise on the part of the Trustee, the Holders, the Company, or any of them, or
any officer, employee or agent thereof, unless contained herein forms any part
of this Supplemental Indenture or has induced the making hereof or shall be
deemed in any way to affect the Guarantor's liability hereunder.
SECTION 2.3. Amendment and Waiver. No alteration or waiver of this
Supplemental Indenture or of any of its terms, provisions or conditions shall be
binding upon the parties against whom enforcement is sought unless made in
writing and signed by an authorized officer of such party or its general
partner, as applicable.
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SECTION 2.4. Dealings With the Company. The Trustee and the Holders, or
any of them, may, from time to time, without exonerating or releasing the
Guarantor in any way under the Guaranty, (i) take such further or other security
or securities for the Obligations or any part thereof as the Trustee and the
Holders, or any of them, may deem proper, consistent with the Indenture, or (ii)
release, discharge, abandon or otherwise deal with or fail to deal with any
guarantor of the Obligations or any security or securities therefor or any part
thereof now or hereafter held by the Trustee and the Holders, or any of them, or
(iii) consistent with the Indenture, amend, modify, extend, accelerate or waive
in any manner any of the provisions, terms, or conditions of the Indenture and
the Securities, all as the Trustee and the Holders, or any of them, may consider
expedient or appropriate in their sole discretion. Without limiting the
generality of the foregoing, or of Section 2.5 hereof, it is understood that the
Trustee and the Holders, or any of them, may, without exonerating or releasing
the Guarantor, give up, or modify or abstain from perfecting or taking advantage
of any security for the Obligations and accept or make any compositions or
arrangements, and realize upon any security for the Obligations when, and in
such manner, as the Trustee and the Holders, or any of them, may deem expedient,
consistent with the Indenture, all without notice to the Guarantor.
SECTION 2.5. Guaranty Unconditional. The Guarantor acknowledges and
agrees that no change in the nature or terms of the Obligations, the Indenture
or the Securities, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to the Guaranty; it
being the purpose and intent of the Guarantor, the Company, the Trustee and the
Holders that the covenants, agreements and all liabilities and obligations of
the Guarantor hereunder are absolute, unconditional and irrevocable under any
and all circumstances. Without limiting the generality of the foregoing, the
Guarantor agrees that until each and every one of the covenants and agreements
of this Supplemental Indenture is fully performed, the Guarantor's undertakings
hereunder shall not be released, in whole or in part, by any action or thing
which might, but for this Section 2.5, be deemed a legal or equitable discharge
of a surety or guarantor, or by reason of any waiver, omission of the Company,
the Trustee and the Holders, or any of them, or their failure to proceed
promptly or otherwise, or by reason of any action taken or omitted by the
Company, the Trustee and the Holders, or any of them, whether or not such action
or failure to act varies or increases the risk of, or affects the rights or
remedies of, the Guarantor or by reason of any further dealings among the
Company, the Trustee and the Holders, or any of them, or any other guarantor or
surety, and the Guarantor hereby expressly waives and surrenders any defense to
its liability hereunder, or any right of counterclaim or offset of any nature or
description which it may have or which may exist based upon, and shall be deemed
to have consented to, any of the foregoing acts, omissions, things, agreements
or waivers.
SECTION 2.6. Maximum Guaranteed Amount. The creation or existence from
time to time of Obligations in excess of the amount committed to or outstanding
on the date of this Supplemental Indenture is hereby authorized by the
Guarantor, without notice to the Guarantor, and shall in no way impair or affect
the Guaranty or the rights of the Trustee and the Holders, or any of them,
herein. It is the intention of the Guarantor, the Company, the Trustee and the
Holders, that the Guarantor's obligations hereunder shall be in, but not in
excess of, the Maximum Guaranteed Amount. The "Maximum Guaranteed Amount" shall
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mean the maximum amount which could be paid out by the Guarantor without
rendering the Guaranty void or voidable under applicable law including, without
limitation, (a) Title 11 of the United States Code, as amended, and (b)
applicable state law regarding fraudulent conveyances or fraudulent transfers.
SECTION 2.7. Bankruptcy. Upon the bankruptcy or winding up or other
distribution of assets of the Company or any Subsidiary of the Company (other
than the Guarantor) or of any surety or guarantor for the Obligations, the
rights of the Trustee and the Holders, or any of them, against the Guarantor
shall not be affected or impaired by the omission of the Trustee and the
Holders, or any of them, to prove its or their claim, as appropriate, or to
prove its or their full claim, as appropriate, and the Trustee and the Holders
may prove such claims as they see fit and may refrain from proving any claim and
in their respective discretion they may value as they see fit or refrain from
valuing any security held by the Trustee and the Holders, or any of them,
without in any way releasing, reducing or otherwise affecting the liability to
the Trustee and the Holders of the Guarantor.
SECTION 2.8. Application of Payments. The Trustee hereby acknowledges
and agrees, and each Holder shall be deemed to hereby acknowledge and agree,
that to the extent any of the Existing Senior Obligations (as defined below) is
then in default, any funds, payments, claims or distributions (the "Guaranty
Proceeds") actually received hereunder shall be made available for distribution
equally and ratably (based on the principal amounts then outstanding) among (a)
the holders of the Obligations and (b) the holders of the Existing Senior
Obligations. For purposes hereof, "Existing Senior Obligations" shall mean Debt
for borrowed money owed or guaranteed in connection with any unsecured and
non-subordinated Debt for borrowed money of the Company or the Guarantor (a)
issued in offerings registered under the Securities Act of 1933 or in placements
exempt from registration pursuant to Rule 144A or Regulation S thereunder, or
(b) otherwise incurred, which is, in either case, outstanding on the date hereof
or incurred hereafter in accordance with the Indenture. This Section 2.8 shall
not apply to any payments, funds, claims or distributions received by the
Trustee or any Holder directly or indirectly from the Company or any other
Person other than from the Guarantor hereunder. The Guarantor acknowledges and
agrees with the Trustee and each Holder as follows:
(a) to the extent any Guaranty Proceeds are distributed to the
holders of the Existing Senior Obligations, the Obligations shall not be deemed
reduced by any such distribution, and the Guarantor will continue to make
payments pursuant to the Guaranty until such time as the Obligations have been
paid in full after taking into effect any distributions of Guaranty Proceeds to
the holders of Existing Senior Obligations;
(b) nothing contained herein shall be deemed to limit, modify
or alter the rights of the Trustee and the Holders or be deemed to subordinate
the Obligations to the Existing Senior Obligations, nor give to any holder of
Existing Senior Obligations any rights of subrogation;
(c) nothing contained herein shall be deemed for the benefit
of any holders of Existing Senior Obligations nor shall anything be construed to
impose on the Trustee or any Holder any fiduciary duties, obligations or
responsibilities to the holders of the Existing Senior Obligations; and
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(d) the Guaranty is for the sole benefit of the Trustee and
the Holders and their respective successors and assigns, and any amounts
received by the Trustee and the Holders, or any of them, from whatsoever source
and applied toward the payment of the Obligations shall be applied in such order
of application as is set forth in the Indenture, if any.
SECTION 2.9. Waivers by Guarantor. The Guarantor hereby expressly
waives: (a) notice of acceptance of the Guaranty, (b) notice of the existence or
creation of all or any of the Obligations, (c) presentment, demand, notice of
dishonor, protest, and all other notices whatsoever, (d) all diligence in
collection or protection of or realization upon the Obligations or any part
thereof, any obligation hereunder, or any security for any of the foregoing and
(e) all rights of subrogation, indemnification, contribution and reimbursement
against the Company, all rights to enforce any remedy the Trustee and the
Holders, or any of them, may have against the Company, and any benefit of, or
right to participate in, any collateral or security now or hereinafter held by
the Trustee and the Holders, or any of them, in respect of the Obligations, even
upon payment in full of the Obligations. Any money received by the Guarantor in
violation of this Section 2.9 shall be held in trust by the Guarantor for the
benefit of the Trustee and the Holders. If a claim is ever made upon the Trustee
and the Holders, or any of them, for the repayment or recovery of any amount or
amounts received by any of them in payment of any of the Obligations and such
Person repays all or part of such amount by reason of (a) any judgment, decree,
or order of any court or administrative body having jurisdiction over such
Person or any of its property, or (b) any good faith settlement or compromise of
any such claim effected by such Person with any such claimant, including the
Company, then in such event the Guarantor agrees that any such judgment, decree,
order, settlement, or compromise shall be binding upon the Guarantor,
notwithstanding any revocation hereof or the cancellation of any promissory note
or other instrument evidencing any of the Obligations, and the Guarantor shall
be and remain obligated to such Person hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been
received by such Person.
SECTION 2.10. Remedies Cumulative. No delay by the Trustee and the
Holders, or any of them, in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by the Trustee and the
Holders, or any of them, of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy. No action by the
Trustee and the Holders, or any of them, permitted hereunder shall in any way
impair or affect the Guaranty. For the purpose of the Guaranty, the Obligations
shall include, without limitation, all Obligations of the Company to the Trustee
and the Holders, notwithstanding any right or power of any third party,
individually or in the name of the Company or any other Person, to assert any
claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of the Guarantor hereunder.
SECTION 2.11. Miscellaneous. The Guaranty is a guaranty of payment and
not of collection. In the event of a demand upon the Guarantor under the
Guaranty, the Guarantor shall be held and bound to the Trustee and the Holders
directly as debtor in respect of the payment of the amounts hereby guaranteed.
All reasonable costs and expenses, including attorneys' fees and expenses,
incurred by the Trustee and the Holders, or any of them, in obtaining
performance of or collecting payments due under the Guaranty shall be deemed
part
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of the Obligations guaranteed hereby. The provisions of the Guaranty are for the
benefit of the Trustee and the Holders and may not be relied upon or enforced by
any other Person without the express written consent of the Trustee and, as to
enforcement, may only be enforced in accordance with this Supplemental Indenture
and the Indenture.
SECTION 2.12. Benefit to Guarantor. The Guarantor expressly represents
and acknowledges that the issuance and sale of the Securities under the
Indenture has been, and will be, of direct interest, benefit and advantage to
the Guarantor.
SECTION 2.13. Solvency. The Guarantor expressly represents and warrants
that as of the date hereof and after giving effect to the transactions
contemplated by the Indenture (a) the capital of the Guarantor will not be
unreasonably small to conduct its business; (b) the Guarantor will not have
incurred debts, or have intended to incur debts, beyond its ability to pay such
debts as they mature; and (c) the present fair salable value of the assets of
the Guarantor is greater than the amount that will be required to pay its
probable liabilities (including debts) as they become absolute and matured. For
purposes of this Section 2.13, "debt" means any liability on a claim, and
"claim" means (x) the right to payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
undisputed, legal, equitable, secured or unsecured, or (y) the right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured, unmatured, undisputed, secured or
unsecured.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.1. Ratification of Indenture. Except as expressly modified or
amended hereby, the Indenture continues in full force and effect and is in all
respects confirmed and preserved.
SECTION 3.2. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of Georgia.
This Supplemental Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended and shall, to the extent applicable, be governed by such
provisions.
SECTION 3.3. Counterparts. This Supplemental Indenture may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 3.4. Notices. Any notice required or permitted hereunder or
under the Indenture to be given or made to the Guarantor shall be given or made
in writing and mailed, first class postage prepaid, to the Guarantor at the
address set forth below its signature hereon, or at any other address previously
furnished in writing to the Trustee and the Company by the Guarantor, with a
copy to the Company given or made in accordance with Section 105 of the
Indenture.
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SECTION 3.5. Successors and Assigns. The Guaranty shall be binding upon
the Guarantor, its successors and assigns and inure to the benefit of the
successors and assigns of the Trustee and the Holders.
SECTION 3.6. Time of the Essence. Time is of the essence with regard to
the Guarantor's performance of its obligations hereunder.
SECTION 3.7. Rights of Holders Limited. Notwithstanding anything herein
to the contrary, the rights of Holders with respect to this Supplemental
Indenture and the Guaranty shall be limited in the manner and to the extent the
rights of Holders are limited under the Indenture with respect to the Indenture
and the Securities.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the day and year first written above.
IRT PROPERTY COMPANY, as Issuer
By: /S/ MARY M. THOMAS
---------------------------------------------
Name: Mary M. Thomas
Title: Executive Vice President
IRT PARTNERS L.P., as Guarantor
By: IRT Property Company, its general partner
By: /S/ MARY M. THOMAS
----------------------------------------
Name: Mary M. Thomas
Title: Executive Vice President
Address: IRT Partners L.P.
c/o IRT Property Company
200 Galleria Parkway, Suite 1400
Atlanta, Georgia 30339
Attention: Chief Financial Officer
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ PHILIP DEMOUEY
---------------------------------------------
Name: Philip DeMouey
Title: Vice President
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ KRISTINE PRALL
---------------------------------------------
Name: Kristine Prall
Title: Trust Officer
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EXHIBIT 4.4
IRT PROPERTY COMPANY
TO
SUNTRUST BANK, ATLANTA,
as, Trustee
Indenture
Dated as of September 9, 1998
Subordinated Debt Securities
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . 9
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, etc., to the Trustee and Company . . . . . . . . . . . . . . . . . . . 11
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . 12
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 111. No Personal Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . 14
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . 15
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of Transfer and
Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . 25
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . 26
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . 29
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . 31
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium or Make-Whole Amount, if
any, Interest and Additional Amounts . . . . . . . . . . . . . . . . . . . . . 35
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 603. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 607. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . 39
SECTION 608. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . 39
SECTION 609. Acceptance of Appointment By Successor . . . . . . . . . . . . . . . . . . . . 41
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 612. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 613. Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . . . . . . . . . . . . 43
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and
Sales, Leases and Conveyances Permitted
Subject to Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 802. Rights and Duties of Successor Corporation . . . . . . . . . . . . . . . . . . 45
SECTION 803. Officers' Certificate and Opinion of Counsel . . . . . . . . . . . . . . . . . 45
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . 45
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . . . . . . . . . . . . 47
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 48
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . 48
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 908. Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
</TABLE>
iii
<PAGE> 5
<TABLE>
<S> <C> <C>
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole
Amount, if any, Interest and Additional Amounts . . . . . . . . . . . . . . . . 48
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . 50
SECTION 1004. [Omitted] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1009. Provision of Financial Information . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1010. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 1011. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . 54
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . 57
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . 60
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . 61
SECTION 1405. Deposited Money and Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions . . . . . . . . . . . . . . . 63
ARTICLE FIFTEEN
</TABLE>
iv
<PAGE> 6
<TABLE>
MEETINGS OF HOLDERS OF SECURITIES
<S> <C> <C>
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . 63
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . 66
SECTION 1507. Evidence of Action Taken by Holders . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1508. Proof of Execution of Instruments . . . . . . . . . . . . . . . . . . . . . . . 66
ARTICLE SIXTEEN
CONVERSION OR EXCHANGE OF SECURITIES
SECTION 1601. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1602. Election to Exchange; Notice to Trustee and Holders . . . . . . . . . . . . . . . 67
SECTION 1603. No Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1604. Adjustment of Exchange Rate . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1605. Payment of Certain Taxes Upon Exchange . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1606. Shares Free and Clear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1607. Cancellation of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1608. Duties of Trustee Regarding Exchange . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1609. Repayment of Certain Funds Upon Exchange . . . . . . . . . . . . . . . . . . . . 67
SECTION 1610. Exercise of Conversion or Exchange Privilege . . . . . . . . . . . . . . . . . . 67
SECTION 1611. Effect of Consolidation or Merger on Conversion Privilege . . . . . . . . . . . . 67
ARTICLE SEVENTEEN
SUBORDINATION
SECTION 1701. Agreement to Subordinate . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1702. Liquidation; Dissolution; Bankruptcy . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1703. Default on Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1704. Acceleration of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1705. When Distribution Must Be Paid Over . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1706. Notice by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1707. Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1708. Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1709 Subordination May Not Be Impaired by Company . . . . . . . . . . . . . . . . . 68
SECTION 1710. Distribution or Notice to Representative . . . . . . . . . . . . . . . . . . . 68
SECTION 1711. Rights of Trustee and Paying Agent . . . . . . . . . . . . . . . . . . . . . . 68
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGEMENTS
EXHIBIT A - FORMS OF CERTIFICATION
</TABLE>
v
<PAGE> 7
IRT PROPERTY COMPANY
Reconciliation and tie between Trust Indenture Act of 1939, as
amended (the "1939 Act"), and Indenture, dated as of September 9,
1998
<TABLE>
<S> <C>
Trust Indenture Act Section Indenture Section
(Section)310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 608
(Section)312(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 701
(Section)314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1010
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(Section)315(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(Section)316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . 101 ("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(Section)317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 504
(Section)318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112
</TABLE>
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including
317 of the 1939 Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
vi
<PAGE> 8
INDENTURE
INDENTURE, dated as of September 9, 1998, between IRT PROPERTY
COMPANY, a Georgia corporation (hereinafter called the "Company"), having its
principal office at 200 Galleria Parkway, Suite 1400, Atlanta, Georgia 30339,
and SunTrust Bank, Atlanta, a Georgia banking corporation, as Trustee hereunder
(hereinafter called the "Trustee"), having its Corporate Trust Office at 58
Edgewood Ave., Room 400-Annex A, Atlanta, Georgia 30303.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes subordinated debt securities (hereinafter called the
"Securities") evidencing its unsecured and subordinated 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 aggregate
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 therefor as
hereinafter provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or 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 Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper," as used in Trust Indenture Act Section 311, shall
have the meanings assigned to them in the rules of the Commission adopted under
the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles. In addition, the
following terms shall have the indicated respective meanings:
1
<PAGE> 9
"Act" has the meaning specified in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security, under circumstances specified therein, to be paid by the Company
in respect of certain taxes imposed on certain Holders and which are owing to
such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any authenticating agent appointed by the
Trustee pursuant to Section 611.
"Authorized Newspaper" means a newspaper, printed in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
"Bankruptcy Law" has the meaning specified in Section 501.
"Bearer Security" means a Security which is payable to bearer.
"Board of Directors" means either (i) the Board of Directors of the
Company, the executive committee or any other committee or director of that
board duly authorized to act for it in respect hereof, or (ii) one or more duly
authorized officers of the Company to whom the Board of Directors of the
Company or a committee thereof has delegated the authority to act with respect
to the matters contemplated by this Indenture.
"Board Resolution" means (i) a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors or a committee thereof, and to be in full force and
effect on the date of such certification, and delivered to the Trustee or (ii)
a certificate signed by the authorized officer or officers of the Company to
whom the Board of Directors of the Company or a committee thereof has
delegated its authority (as described in the definition of Board of Directors),
and in each case delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day, other than a Saturday or Sunday, that is neither a legal
holiday nor a day on which banking institutions in that Place of Payment or
particular location are authorized or required by law, regulation or executive
order to close.
2
<PAGE> 10
"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 instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Depository" has the meaning specified in Section 304(b).
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the President or a Vice
President of the Company, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
(other than as otherwise provided with respect to a Security pursuant to Section
301) as provided 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, or (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) for the purposes for which it was established.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 58 Edgewood Avenue,
Room 400-Annex A, Atlanta, Georgia 30303.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Custodian" has the meaning set forth in Section 501.
"Debt" means the principal, premium, if any, unpaid interest (including
interest accruing on or after the filing of any petition in bankruptcy or for
reorganization relating to the Company whether or not a claim for post-filing
interest is allowed in such proceeding), fees charges, expenses, reimbursement
and indemnification obligations, and all other amounts payable under or in
respect of the following indebtedness of the Company for money borrowed, whether
any such indebtedness exists as of the date of the Indenture or is created,
incurred, assumed or guaranteed after such date:
(i) any debt (a) for money borrowed, or (b) evidenced by a
bond, note, debenture, or similar instrument (including purchase money
obligations) given in connection with the acquisition of any business,
property or assets, whether by purchase, merger, consolidation or
otherwise, but shall not include any account payable or other
obligation created or assumed in the ordinary course of business in
connection with the obtaining of materials or services, or (c) which is
a direct or indirect obligation which arises as a result of banker's
acceptances or bank letters of credit issued to secure obligations of
the Company, or to secure the payment of revenue bonds issued for the
benefit of the Company, whether contingent of otherwise;
(ii) any debt of others described in the preceding clause (i)
which the Company has guaranteed or for which it is otherwise liable;
(iii) the obligation of the Company, as lessee under any lease
of property which is reflected on the Company's balance sheet as a
capitalized lease; and
(iv) any deferral, amendment, renewal, extension, supplement or
refunding of any liability of the kind described in any of the
preceding clauses (i), (ii), and (iii); provided, however, that, in
computing indebtedness of the Company, there shall be excluded any
particular indebtedness if, upon or prior to the maturity thereof,
there shall have been deposited with a depository in trust money (or
evidence of indebtedness if permitted by the instrument creating such
indebtedness) in the necessary amount to pay, redeem or satisfy such
indebtedness as it becomes due, and the amount so deposited shall not
be included in any computation of the assets of the Company.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for payment of public and private debts.
"DTC" means The Depository Trust Company.
"ECU" means the European Currency Unit as defined and revised from time
to time by the Council of the European Communities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Community" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
3
<PAGE> 11
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder by the Commission.
"Foreign Currency" means any currency, currency unit or composite
currency issued by the government of one or more countries other than the
United States of America or by any recognized confederation or association of
such governments.
"GAAP" means generally accepted accounting principles as used in the
United States applied on a consistent basis as in effect from time to time;
provided, that solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable,
for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the Foreign Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt,
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
4
<PAGE> 12
"Indexed Security" means a Security the terms of which provide that
the principal amount thereof payable at Stated Maturity may be more or less
than the principal face amount thereof at original issuance.
"Interest" when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1011,
includes such Additional Amounts.
"Interest Payment Date" means, when used with respect to any Security,
the Stated Maturity of an installment of interest on such Security.
"Make-Whole Amount" means the amount, if any, in addition to principal
which is required by a Security, under the terms and conditions specified
therein or as otherwise specified as contemplated by Section 301, to be paid by
the Company to the Holder thereof in connection with any optional redemption or
accelerated payment of such Security.
"Maturity" means, when used with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, repurchase or otherwise.
"Officers' Certificate" means a certificate signed by the President or
a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel 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 delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company 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 other provision therefor satisfactory to the
Trustee has been made;
(iii) Securities, except solely to the extent provided in Sections
1402 and 1403, as applicable, with respect to which the Company has
effected defeasance and/or covenant defeasance as provided in Article
Fourteen;
(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
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a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(v) Securities converted or exchanged into other securities or
property (including securities of other issuers, provided that such
securities are registered under Section 12 of the Exchange Act and such
issuer is then eligible to use Form S-3 (or any successor form) for a
primary offering of its securities) of the Company pursuant to or in
accordance with this Indenture if the terms of such Securities provide
for convertibility or exchange pursuant to Section 301;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by Trust Indenture Act Section 313, (i) the principal
amount of an Original Issue Discount Security that may be counted in making
such determination or calculation and that shall be deemed to be Outstanding
for such purpose shall be equal to the amount of principal thereof that would
be (or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined pursuant to Section 301 as of the
date such Security is originally issued by the Company, of the principal
amount (or, in the case of an Original Issue Discount Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (i) above) of such Security, (iii) the principal amount of
any Indexed Security that may be counted in making such determination or
calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Indexed Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation
or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which 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 Company or any
other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium or Make-Whole Amount, if any) or interest on any
Securities, or coupons on behalf of the Company, or if no such Person is
authorized, the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium
or Make-Whole Amount, 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
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stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date" means, when used with respect to any Security to be
redeemed in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security which is registered in the
Security Register.
"Regular Record Date" for the installment of interest payable on any
Interest Payment Date on the Registered Securities of or within any series
means the date specified for that purpose as contemplated by Section 301,
whether or not a Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid or repurchased at the option of the Holder, the date fixed for such
repayment or repurchase by or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid or purchased at the option of the Holder, the price at which it is to be
repaid or repurchased pursuant to this Indenture.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Debt.
"Responsible Officer" means, any vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and having direct responsibility for the
administration of this Indenture, and also, with respect to a particular matter,
any other officer to whom such matter is referred because of such officer's
knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder by the Commission.
"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 or within any series as to
which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal, premium, if any, unpaid interest
(including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceeding), fees, charges,
expenses, reimbursement and indemnification obligations, and all other amounts
payable under or in respect of the following indebtedness of the Company for
money borrowed, whether any such indebtedness exists as of the date of the
Indenture or is created, incurred, assumed or guaranteed after such date:
(i) any debt (a) for money borrowed by the Company, or (b)
evidenced by a bond, note, debenture, or similar instrument (including
purchase money obligations) given in connection with the acquisition of
any business, property or assets, whether by purchase, merger,
consolidation or otherwise, but shall not include any account payable or
other obligation created or assumed in the ordinary course of business
in connection with the obtaining of materials or services, or (c) which
is a direct or indirect obligation which arises as a result of banker's
acceptances or bank letters of credit issued to secure obligations of
the Company, or to secure the payment of revenue bonds issued for the
benefit of the Company whether contingent or otherwise;
(ii) any debt of others described in the preceding clause
(i) which the Company has guaranteed or for which it is otherwise
liable;
(iii) the obligation of the Company as lessee under any lease
of property which is reflected on the Company's balance sheet as a
capitalized lease; and
(iv) any deferral, amendment, renewal, extension, supplement
or refunding of any liability of the kind described in any of the
preceding clauses (i), (ii) and (iii); provided, however, that, in
computing the indebtedness of the Company, there shall be excluded any
particular indebtedness if, upon or prior to the maturity thereof, there
shall have been deposited with a depository in trust money (or evidence
of indebtedness if permitted by the instrument creating such
indebtedness) in the necessary amount to pay, redeem or satisfy such
indebtedness as it becomes due, and the amount so deposited shall not be
included in any computation of the assets of the Company; provided,
further, that in computing the indebtedness of the Company hereunder,
there shall be excluded
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(1) any such indebtedness, obligation or liability referred to in clauses (i)
through (iv) above as to which, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment to the
Securities, or ranks pari passu with the Securities, (2) any such indebtedness,
obligation or liability which is subordinated to indebtedness of the Company to
substantially the same extent as or to a greater extent than the Securities are
subordinated, (3) any indebtedness to a subsidiary of the Company and (4)
the Securities. There is no limit on the amount of Senior Debt that the Company
may incur.
"Significant Subsidiary" means any Subsidiary which is a "significant
subsidiary" (within the meaning of Regulation S-X, promulgated under the
Securities Act) of the Company.
"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" means, when used with respect to any Security or
any installment of principal thereof or interest thereon, the date specified in
such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of (i) the voting power of the voting equity
securities or (ii) the outstanding equity interests of which are owned, directly
or indirectly, by such Person. For the purposes of this definition, "voting
equity securities" means equity securities having voting power for the election
of directors, whether at all times or only so long as no senior class of
security has such voting power by reason of any contingency.
"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 or within any
series shall mean only the Trustee with respect to the Securities of that
series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States of or any state
or the District of Columbia or an estate or trust the income of which is
subject to United States federal income taxation regardless of its
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source.
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent
predetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including covenants, compliance with which
constitute conditions precedent) 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 (excluding certificates
delivered pursuant to Section 1010) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
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other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of Securities of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, whether 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 Company. 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 612)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The record of
any meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register or by a certificate of the Security Registrar.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depository, by any trust company, bank, banker or other depository, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such person had on
deposit with such depository, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any other
manner which the Trustee deems sufficient.
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(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of
Holders generally in connection therewith and not later than the date such
solicitation is completed. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to the Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver, or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Department, or
(2) the Company 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 Company
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 Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of
Registered Securities by the Company 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
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have been received by such Holder, whether or not such Holder actually receives
such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities, and if the Securities of such series are listed on any stock
exchange outside the United States, in any place at which such Securities are
listed on a securities exchange to the extent that such securities exchange so
requires, on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
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 Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture.
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Nothing in this Indenture or in the Securities or coupons appertaining
thereto, 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 of Senior Debt or the Holders any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, in any Security or coupon appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
promoter, as such or, against any past, present or future shareholder, officer
or director, as such, of the Company or of any successor, either directly or
through the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 112. Governing Law.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of Georgia. This Indenture
is subject to the provisions of the TIA that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity of any Security or
the last date on which a Holder has the right to convert or exchange a Security
at a particular conversion or exchange price shall not be a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or
any Security or coupon other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu hereof),
payment of interest or any Additional Amounts or principal (and premium or
Make-Whole Amount, if any) need not be made at such Place of Payment on such
date, conversion or exchange need not be made at such Place of Payment on such
date but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at the Stated
Maturity or Maturity 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 on such last day for conversion or
exchange, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to one or more
indentures supplemental hereto or Board Resolutions, 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 Company 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
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to conform to usage.
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 of the Company executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein and
referred to in the within-mentioned Indenture.
SunTrust Bank, Atlanta, as Trustee
By: _________________________________________________
Authorized Officer
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 (8) of
Section 301 and the provisions of Section 302, any such Security shall represent
such of the Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges, maturities
or redemptions. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon written
instruction given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon written instruction given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section
102.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium or Make-Whole Amount and interest on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
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in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
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 or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable, each of which (except for the matters set
forth in clauses (1), (2) and (15) below), if so provided, may be determined
from time to time by the Company with respect to unissued Securities of or
within the series when issued from time to time):
(1) the title of the Securities of or within 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 or within 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 or within the series pursuant to Section 304, 305, 306, 906,
1107, or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of or within the
series shall be payable and the amount of principal payable thereon;
(4) the rate or rates (which may be fixed or variable) at which
the Securities of or within 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 consisting of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
City of Atlanta, Georgia or the Borough of Manhattan, The City of New York,
where the principal of (and premium or Make-Whole Amount, if any), interest, if
any, on, and Additional Amounts, if any, payable in respect of, Securities of
or within the series shall be payable, any Registered Securities of or within
the series may be surrendered for registration of transfer, exchange or
conversion and notices or demands to or upon the Company in respect of the
Securities of or within the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
(including the premium or Make-Whole Amount, if any) at which, the currency or
currencies, currency unit or units or composite currency or currencies in which
and other terms and conditions upon which Securities of or within the series
may be redeemed in whole or in part, at the option of the Company, if the
Company is to have the option;
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(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of or within the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period or
periods within which or the date or dates on which, the price or prices at
which, the currency or currencies, currency unit or units or composite currency
or currencies in which, and other terms and conditions upon which Securities of
or within the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities of or
within the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer Securities of or
within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of or within the series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section
502 or, if applicable, the portion of the principal amount of Securities of or
within the series that is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if any) or
interest or Additional Amounts, if any, on the Securities of or within the
series shall be payable or in which the Securities of or within the series
shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of or within
the series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without limitation, on one
or more currencies, currency units, composite currencies, commodities, equity
indices or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (and premium or Make-Whole Amount, if
any) or interest or Additional Amounts, if any, on the Securities of or within
the series are to be payable, at the election of the Company or a Holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are denominated
or stated to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made, and the time and manner of,
and identity of the exchange rate agent with responsibility for, determining
the exchange rate between the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are denominated or
stated to be payable and the currency or currencies, currency unit or units or
composite currency or currencies in which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of or within the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities of or
within the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(16) whether Securities of or within 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
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Securities and the terms upon which Bearer Securities of or within the series
may be exchanged for Registered Securities of or within the series and vice
versa (if permitted by applicable laws and regulations), whether any Securities
of or within the series are to be issuable initially in temporary global form
and whether any Securities of or within 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 or within the series are to be issuable as a global Security, the
identity of the depository for such series;
(17) the date as of which any Bearer Securities of or within the
series and any temporary global Security representing Outstanding Securities of
or within the series shall be dated if other than the date of original issuance
of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of or within the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of or within the series are to be issued
upon the exercise of debt warrants, the time, manner and place for such
Securities to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities of or
within 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 Company will have the
option to redeem such Securities rather than pay such Additional Amounts (and
the terms of any such option);
(23) the obligation, if any, of the Company to permit the Securities
of such series to be converted into or exchanged for Common Stock of the
Company or other securities or property of the Company and the terms and
conditions upon which such conversion or exchange shall be effected (including,
without limitation, the initial conversion or exchange price or rate, the
conversion or exchange period, any adjustment of the applicable conversion or
exchange price or rate and any requirements relative to the reservation of such
shares for purposes of conversion or exchange);
(24) if convertible or exchangeable, any applicable limitations on
the ownership or transferability of the securities or property into which such
Securities are convertible or exchangeable; and
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
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Section 905).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series, if any, shall be substantially identical
except, in the case of Registered or Bearer Securities issued in global form,
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or in any such indenture supplemental hereto. All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order for authentication and delivery of such
Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. With respect to
Securities of any series denominated in Dollars, in the absence of any such
provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination), shall be issuable in denominations of
$1,000 and any integral multiple thereof and the Bearer Securities of such
series other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in denominations of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its President or a Vice President, under its
corporate seal reproduced thereon, and attested by its Secretary or an
Assistant Secretary. 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 appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, 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 Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
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
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temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture.
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 of 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 Company 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 Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to Section 612 TIA Section 315(a) through 315 (d)) shall
be fully protected in conclusively relying upon:
(i) an Opinion of Counsel complying with Section 102 and stating
that:
(a) the form or forms of such Securities and any coupons
have been, or will have been upon compliance with such
procedures as may be specified therein, established in
conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have
been, or will have been upon compliance with such procedures
as may be specified therein, established in conformity with
the provisions of this Indenture;
(c) such Securities, together with any coupons
appertaining thereto, when completed pursuant to such
procedures as may be specified therein, and executed and
delivered by the Company 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 Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, 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 to such other matters as may be specified
therein; and
(d) the issuance of such Securities and any coupons will
not contravene the articles of incorporation or bylaws of the
Company or result in any violation of any of the terms or
provisions of any law or regulation or of any indenture,
mortgage or other agreement known to such counsel by which the
Company is bound; and
(ii) an Officers' Certificate complying with Section 102 and
stating that all conditions precedent provided for in this Indenture relating
to the issuance of such Securities have been, or will have been upon compliance
with such procedures as may be specified therein, complied with and that, to
the best of the knowledge of the signers of such certificate, no Event of
Default with respect to such Securities shall have occurred and be continuing.
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 a Company Order, 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 certificate, with appropriate
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modifications to cover such future issuances, shall be delivered at or before
the time of issuance of the first Security of such series.
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.
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 appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security or the Security to which such coupon appertains
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued or sold by the Company, 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 Company may execute, and upon Company 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 of
the Company executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any
series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company 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 Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of DTC. If any such temporary
Security is issued in global form, then such temporary global Security
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shall, unless otherwise provided therein, be delivered to the London, England
office of a depository or common depository (the "Common Depository"), for the
benefit of Euroclear and CEDEL.
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 Company shall deliver to the Trustee
definitive Securities, in an aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depository to the Trustee, as the Company'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 or within 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 Depository,
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, if any, 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, if any,
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 or 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 of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
or CEDEL on such Interest Payment Date upon delivery by Euroclear or CEDEL to
the Trustee of a certificate or certificates in
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<PAGE> 29
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 or 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 Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company 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 Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it or the Security Registrar may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. The Trustee, at its Corporate Trust
Office, is hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee shall
cease to be Security Registrar, it shall have the right to examine the Security
Register at all reasonable times and to require that a copy of the Security
Register in written form be delivered to it from time to time as reasonably
requested.
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 Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company 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
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Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted 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 Company 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 Company 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 Company 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 depository for any
permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or in
part for definitive Securities, a global Security may be transferred, in whole
but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to
a successor to DTC for such global Security selected or approved by the Company
or to a nominee of such successor to DTC. If at any time DTC notifies the
Company that it is unwilling or unable to continue as depository for the
applicable global Security or Securities or if at any time DTC ceases to be
a clearing agency registered under the Exchange Act if so required by
applicable law or regulation, the Company shall appoint a successor depository
with respect to such global Security or Securities. If (x) a successor
depository for such global Security or Securities is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such unwillingness, inability or ineligibility, (y) an Event of Default has
occurred and is continuing and the beneficial owners representing a majority in
principal amount of the applicable series of Securities represented by such
global Security or Securities advise DTC to cease acting as depository for such
global Security or Securities or (z) the Company, 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
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represented by such global Security or Securities (provided, however, the
Company may not make such determination during the 40-day restricted period
provided by Regulation S under the Securities Act or during any other similar
period during which the Securities must be held in global form as may be
required by the Securities Act), then the Company 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 an interest for Securities of such series and of
like tenor and principal amount of another authorized form and denomination,
as specified as contemplated by Section 301 and provided that any applicable
notice provided in the permanent global Security shall have been given, then
without unnecessary delay but in any event not later than the earliest date on
which such interest may be so exchanged, the Company shall execute, and the
Trustee shall authenticate and deliver definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered for exchange by DTC or such other depository as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company'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 before 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 Company, 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 Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company 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
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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 or to register the transfer or exchange of 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 Company, together with
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company 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 Company 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 actual notice to the Company or the Trustee that such Security
or coupon has been acquired by a bona fide purchaser, the Company 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 Company 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 or
Make-Whole Amount, if any), any interest on and any Additional Amounts with
respect to Bearer Securities shall, except as otherwise provided in Section
1002, be payable only at an office or agency located outside the United States
and, unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of the
coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest on any Registered
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest at the office or agency of the
Company maintained for such purpose pursuant to Section 1002; provided,
however, that each installment of interest on any Registered Security may at
the Company'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 DTC, Euroclear or CEDEL, 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 Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
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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 Company 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 Company shall deposit with the Trustee an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, 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 such Holder's address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (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 Company 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
written notice given by the Company 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.
Subject to the provisions of Section 1402 and except as otherwise
specified with respect to a series of Securities in accordance with the
provisions of Section 301, in the case of any Security which is converted or
exchanged after any Regular Record Date and on or prior to the next succeeding
Interest Payment Date (other than any Security, the principal of (or premium, if
any, on) which shall become due and payable, whether at a Stated Maturity or by
declaration of acceleration, call for redemption, or otherwise, prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion or exchange, and such interest (whether or not punctually paid or
duly provided for) 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
such Regular Record Date. Except as otherwise expressly provided in the
immediately preceding sentence, in the case of any Security which is converted
or exchanged, interest whose Stated Maturity is after the date of conversion or
exchange of such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
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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 or Make-Whole Amount, if any), and (subject to
Sections 305 and 307) interest on, such Registered Security and for all other
purposes whatsoever, whether or not such Registered Security be overdue, and
neither the Company, the Trustee nor any agent of the Company 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 Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the Holder of
any coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, 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 record relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depository, as a Holder, with respect
to such global Security or impair, as between such depository and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depository (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange 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. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company 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 Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. If the Company 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. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and, if required in writing by the Company, the
Trustee shall deliver a certificate of such destruction to the Company, unless
by a Company Order the Company 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 of each series
shall be computed on the basis of a 360-day year consisting of twelve 30-day
months.
ARTICLE FOUR
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SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to any series of Securities specified in such Company
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 1011), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
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) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company,
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 Company,
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose an
amount in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of
such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium or Make-Whole Amount, 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 the Stated Maturity or Redemption
Date, as the case may be;
(2) The Company has paid or caused to be paid all or other sums
payable hereunder by the Company; and
(3) The Company 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.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company 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.
In the event that there are Securities of two or more series
outstanding hereunder, the Trustee shall be required to execute an instrument
acknowledging satisfaction and discharge of this Indenture only if requested to
do so with respect to Securities of a particular series as to which it is
Trustee and if the other conditions thereto are met.
SECTION 402. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium or Make-Whole Amount, if any), and any interest and Additional Amounts
for whose payment such money has been deposited with or received by the
Trustee, but such money need not be segregated from other funds except to
the extent required by law. Money deposited pursuant to this section not in
violation of this Indenture shall not be subject to claims of holders of Senior
Debt under Article Seventeen.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating to any
series of Securities as contemplated pursuant to Section 301, "Event of
Default," wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the reason for such
Event of Default and whether or not it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon or any Additional
Amounts payable in respect of any Security of or within that series or of any
coupon appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or
Make-Whole Amount, 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 Company in this Indenture with respect to any Security of that
series (other than (i) a covenant or agreement included in this Indenture solely
for the benefit of a series of Securities other than such series or (ii) a
covenant or warranty a default in whose performance or whose breach is elsewhere
in this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company 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;
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or
(5) default under a bond, debenture, note, mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company (or by any
Subsidiary, the repayment of which the Company has guaranteed or for which the
Company is directly responsible or liable as obligor or guarantor), having a
principal amount outstanding in excess of $10,000,000 (other than indebtedness
which is non-recourse to the Company or the Subsidiaries), whether such
indebtedness now exists or shall hereafter be created, which default shall have
resulted in such indebtedness 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 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or to the Company
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
and requiring the Company 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 Company 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 Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially
all of either of its property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree
remains unstayed and in effect for 90 days; or
(8) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code or any similar Federal or state law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
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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 aggregate principal amount of the
Outstanding Securities of each such affected series (voting as a single class)
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, and the Make-Whole Amount, if any, on, all
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which
the Securities of such series is payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all
Outstanding Securities of that series and any related
coupons;
(B) the principal of (and premium or Make-Whole Amount,
if any, on) any Outstanding Securities of that series
which have become due otherwise than by such
declaration of acceleration and interest thereon at
the rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue installments of
interest and any Additional Amounts at the rate or
rates borne by or provided for in such Securities;
and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents
and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium or Make-Whole
Amount, if any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company 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
or Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
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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 or Make-Whole Amount, if any) and interest and Additional Amounts,
with interest upon any overdue principal (and premium or Make-Whole Amount, 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 Company 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 Company or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company 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 Company for the payment of overdue principal, premium or
Make-Whole Amount, if any, or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series, of
principal (and premium or Make-Whole Amount, if any) and interest and
Additional Amounts, if any, owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each Holder of
Securities of such series and coupons to make such payments to the Trustee, and
in the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and
any predecessor Trustee, their agents and counsel, and any other amounts due the
Trustee or any predecessor Trustee under Section 606.
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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
or Make-Whole Amount, 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 or
Make-Whole Amount, 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 or Make-Whole Amount, if any), interest
and Additional Amounts, respectively, and
THIRD: To the payment of the remainder, if any, to the Company.
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
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium or Make-Whole Amount, 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 or Make-Whole Amount, if
any) and (subject to Sections 305 and 307) interest on, and any Additional
Amounts in respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of redemption,
on the Redemption Date), to convert or exchange such Securities in accordance
with Article Sixteen 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 Company, 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 has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or any acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
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The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that:
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein (but the Trustee shall have no obligation as to
the determination of such undue prejudice).
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 consent to the waiver of 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 or Make-Whole
Amount, 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 Stay or Extension Laws.
The Company 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 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 Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted by it as Trustee, the filing by any party litigant in such suit of
an undertaking to pay the costs of such 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,
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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 or Make-Whole
Amount, if any) or interest on or Additional Amounts payable with respect to
any Security on or after the respective Stated Maturities expressed in such
Security (or in the case of redemption, on or after the Redemption Date) or to
enforce the right to convert or exchange any Security in accordance with
Article Sixteen.
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 actually known to a Responsible Officer of 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 or Make-Whole
Amount, if any) or interest on or any Additional Amounts with respect to any
Security of such series, or in the payment of any sinking fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as Responsible Officers of the Trustee in
good faith determine that the withholding of such notice is in the interests of
the Holders of the Securities and coupons of such series; and provided further
that in the case of any default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such notice
to Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are expressly
undertaken by it to perform under this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
(2) the Trustee may conclusively rely and shall be fully 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;
(3) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company 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;
(4) 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;
(5) the Trustee may consult with counsel and as a condition to the
taking, suffering or omission of any action hereunder may demand an Opinion of
Counsel, and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
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taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(6) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction;
(7) 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 Company, personally or by agent or attorney;
(8) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents,
attorneys, custodians or nominees and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder; and
(9) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity satisfactory to
the Trustee against such risk or liability is not reasonably assured to it.
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 Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company 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 Company, in its individual or any other capacity, may
become the owner or pledgee of Securities and coupons and, subject to Section
613 and TIA Sections 310(b) and 311, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on, or investment of, any money received by it
hereunder.
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SECTION 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder, including extraordinary
services rendered in connection with or during the continuation of a default
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) to reimburse each of the Trustee and any predecessor Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by it in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except to the extent any such expense, disbursement or
advance may be attributable to its gross negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee
(and each of their respective directors, officers, agents and employees) for,
and to hold each of them harmless against, any loss, liability or expense,
arising out of or in connection with the acceptance or administration of the
trust or trusts or the performance of its duties hereunder, including the costs
and expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder
except to the extent any such loss, liability or expense may be attributable to
its own gross negligence or bad faith.
As security for the performance of the obligations of the Company
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 or Make-Whole Amount,
if any) or interest on particular Securities or any coupons.
When the Trustee incurs expenses or renders services in connection
with an Event of Default described in Section 501(6) and (7), such expenses
(including the fees and expenses of its counsel) and the compensation for such
services are intended to constitute expenses of administration under any
Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture or the resignation or removal of the Trustee.
SECTION 607. Corporate Trustee Required; Eligibility.
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 or is a subsidiary of a
corporation which shall be a Person that has a combined capital and surplus of
at least $50,000,000 and which unconditionally guarantees the obligations of
the Trustee hereunder. If such Trustee or Person 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
Trustee or Person 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
Company. If
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an instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions
of Section 613 or TIA Section 310(b) after written request
therefor by the Company 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 Company 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
Company by or pursuant to a Board Resolution may remove the
Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder
of a Security who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to
all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series). If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee 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 Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to Securities of such
series.
(f) The Company 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
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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 Company 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 Company 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
Company, 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 Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company 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 Company 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.
(e) All monies due and owing to the Trustee shall be paid before
the Successor Trustee takes over.
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.
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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 issued upon exchange, registration of
transfer or partial redemption or repayment thereof or pursuant to Section 306,
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 Company. Wherever reference
is made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
reasonably acceptable to the Company and, except as may otherwise be provided
pursuant to Section 301, 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 $25,000,000 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.
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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 Company. 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 Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of or within 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 provisions of this Section.
The Company 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
and referred to in the within-mentioned Indenture.
SunTrust Bank, Atlanta, as Trustee
By:
---------------------------------
as Authenticating Agent
By:
---------------------------------
Authorized Officer
SECTION 612. Certain Duties and Responsibilities.
No provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the
performance 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 indemnity satisfactory to the Trustee against such risk or
liability is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 613. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series. In case an Event of Default shall occur and
be continuing, the Trustee shall exercise such of its rights and powers under
the applicable Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar nor any director, officer, agent or employee of any of them shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities or coupons in accordance with TIA
Section 312, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after March 15 of each year commencing with the first
March 15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as provided in TIA
Section 313(c) a brief report dated as of such March 15 if and to the extent
required by TIA Section 313(a).
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SECTION 703. Reports by Company.
The Company will:
(1) file with the Trustee, within 15 days after the Company 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 Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Company is not required to file information, documents or reports pursuant
to either of such Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
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
Company 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 Company pursuant to paragraphs (1) or
(2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if
there is no Regular Record Date for interest for such series of Securities,
semi-annually, upon such dates as are set forth in the Board Resolution or
indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company 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 lists shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain
Conditions.
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 Person,
provided that in any such case, (i) either the Company shall be the continuing
entity, or the successor (if other than the Company) entity shall be a Person
organized and existing under the laws of the United
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States or a State thereof and such successor entity shall expressly assume the
due and punctual payment of the principal of (and premium or Make-Whole Amount,
if any) and any interest (including all Additional Amounts, if any, payable
pursuant to Section 1011) on all of the Securities, according to their tenor,
the conversion or exchange rights shall be provided for in accordance with
Article Sixteen, if applicable, or as otherwise specified pursuant to Section
301 and the due and punctual performance and observance of all of the covenants
and conditions of this Indenture to be performed by the Company by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such Person and (ii) immediately after
giving effect to such transaction and treating any indebtedness which becomes an
obligation of the Company or any 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, 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 entity, such successor entity
shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein as the party of the first part, and the predecessor
entity, except in the event of a lease, shall be relieved of any further
obligation under this Indenture and the Securities. Such successor entity
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor entity, instead of the Company,
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
Company to the Trustee for authentication, and any Securities which such
successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under
Section 801 is also subject to the condition that the Trustee receive an
Officers' Certificate and an Opinion of Counsel to the effect that any such
consolidation, merger, sale, lease or conveyance, and the assumption by any
successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, 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 Company
and the assumption by any such successor of the covenants of the Company herein
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and in the Securities contained; or
(2) to add to the covenants of the Company 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 Company; 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,
Make-Whole Amount or Interest on Bearer Securities, to permit Bearer Securities
to be issued in exchange for Registered Securities, to permit Bearer Securities
to be issued in exchange for Bearer Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(5) to add, change or eliminate any of the provisions of this
Indenture in respect of any series of Securities, provided that any such
addition, change or elimination shall (i) neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision, nor (B) modify the rights of the
Holder of any such Security with respect to such provision; or (ii) become
effective only when there is no Security Outstanding; 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, including the
provisions and procedures relating to Securities convertible into or
exchangeable for other securities or property of the Company; 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 make provision with respect to the conversion or exchange
rights of Holders pursuant to the requirements of Article Sixteen, including
providing for the conversion or exchange of the Securities into any security or
property of the Company; or
(10) 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 or to make any other changes, provided that in each case, 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
(11) to close this Indenture with respect to the authentication and
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delivery of additional series of Securities or to qualify, or maintain
qualification of, this Indenture under the TIA; or
(12) 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 in each case that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related coupons
or any other series of Securities in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, 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 or
Make-Whole Amount, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate or amount
of interest thereon or any Additional Amounts payable in respect thereof, or
any premium or Make-Whole Amount payable upon the redemption thereof, or change
any obligation of the Company to pay Additional Amounts pursuant to Section
1011 (except as contemplated by Section 801(i) and permitted by Section
901(1)), or reduce the amount of the principal of an Original Issue Discount
Security or Make-Whole Amount, if any, 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
Security or any premium or Make-Whole Amount or any Additional Amounts payable
in respect thereof or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the option of
the Holder, on or after the Redemption Date or the Repayment Date, as the case
may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for quorum or
voting; or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, 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.
(4) make any change that adversely affects the right to convert or
exchange any Security as provided in Article Sixteen or pursuant to Section 301
(except as permitted by Section 901(9)) or decrease the conversion or exchange
rate or increase the conversion or exchange price of any such Security.
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 for the
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benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel and an
Officer's Certificate stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture and that all conditions precedent
to the execution of such supplemental indenture have been complied with. 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
Company shall so determine, new Securities, of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Security affected,
in the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
SECTION 908. Subordination Unimpaired.
No provision in any supplemental indenture that affects the superior
position of the holders of Senior Debt shall be effective against holders of
Senior Debt.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or Make-Whole Amount,
if any, Interest and Additional Amounts.
The Company 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 or Make-Whole Amount, 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
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interest due on and any Additional Amounts payable in respect of Bearer
Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1011 in respect of principal of (or premium or
Make-Whole Amount, if any, on) such a Security, shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, 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 Company 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, where Securities of that
series may be converted or exchanged in accordance with Article Sixteen and
where notices and demands to or upon the Company 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 Company will maintain: (A) in the City of
Atlanta, Georgia or in the Borough of Manhattan, The City of New York, an office
or agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to 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 1011) or conversion; provided, however, that if the
Securities of that series are listed on the Luxembourg Stock Exchange, The
International Stock Exchange or any other stock exchange located outside the
United States and such stock exchange shall so require, the Company will
maintain a Paying Agent for the Securities of that series in Luxembourg, London,
England or any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed on such
exchange; and (c) subject to any laws or regulations applicable thereto, in each
Place of Payment for that series located outside the United States an office or
agency where any Securities of that series may be surrendered for registration
of transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company 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 Company 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 1011) at the offices
specified in the Security, in London, England, and the Company hereby appoints
the same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Company 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, Make-Whole Amount or interest on
or Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Company in the United States or by
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check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that,
if the Securities of a series are payable in Dollars, payment of principal of
and any premium and interest on any Bearer Security (including any Additional
Amounts or Make-Whole Amount payable on Securities of such series pursuant to
Section 1011) shall be made at the office of the Company's Paying Agent in the
City of Atlanta, Georgia or the Borough of Manhattan, The City of New York, if
(but only if) payment in Dollars of the full amount of such principal, premium,
interest, Additional Amounts or Make-Whole Amount, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the
Company in accordance with this Indenture, is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series and related coupons, if
any, may be presented or surrendered for any or all of such purposes, and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company 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 Company
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, 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 Company
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 Company 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 or Make-Whole Amount, 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 or
Make-Whole Amount, 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 Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium or Make-Whole Amount, 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 or Make-Whole Amount,
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,
Make-Whole Amount or interest or Additional Amounts and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company 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:
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(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, 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 written notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such payment of
principal (and premium or Make-Whole Amount, 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 Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company 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 Company 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 Company, in
trust for the payment of the principal of (and premium or Make-Whole Amount, if
any) or interest on, or any Additional Amounts in respect of, any Security of
any series and remaining unclaimed for two years after such principal (and
premium or Make-Whole Amount, if any), interest or Additional Amounts has
become due and payable shall be paid to the Company upon Company Request or (if
then held by the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look only
to the Company for payment of such principal of (and premium or Make-Whole
Amount, 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 Company
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 Company 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 Company.
SECTION 1004. (Omitted).
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect the existence,
rights (charter and statutory) and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any right or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders of Securities of any
series.
SECTION 1006. Maintenance of Properties.
The Company 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,
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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 nothing in this Section shall prevent the Company or
any Subsidiary from selling or otherwise disposing of its properties in the
ordinary course of its business.
SECTION 1007. Insurance.
The Company will, and will cause each of its Subsidiaries to, keep all
its insurable properties insured against loss or damage with commercially
reasonable amounts and types of insurance provided by insurers of recognized
responsibility.
SECTION 1008. Payment of Taxes and Other Claims.
The Company 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 Company 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 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.
Whether or not the Company is subject to Section 13 or 15(d) of the
Exchange Act, the Company will, to the extent permitted under the Exchange Act,
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 file with the Trustee copies of 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. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section
1010, such compliance shall be determined without regard to any period of grace
or requirement of notice under this Indenture.
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SECTION 1011. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company 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, Make-Whole Amount 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 Make-Whole Amount or interest if there has been any change with
respect to the matters set forth in the below-mentioned Officers' Certificate,
the Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in the Securities
of or within 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 Company will pay to the Trustee or such Paying Agent the
Additional Amounts, if any, required by the terms of such Securities. In the
event that the Trustee or any Paying Agent, as the case may be, shall not so
receive the above mentioned certificate, then the Trustee or such 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 Company covenants to
indemnify the Trustee and any Paying Agent and their respective officers,
directors, employees and agents for, and to hold them harmless against, any
loss, liability or expense (including but not limited to legal fees and
expenses) reasonably incurred without gross negligence or bad faith on their
part arising out of or in connection with actions taken or omitted by any of
them in reliance on any Officers' Certificate furnished pursuant to this Section
or in reliance on the Company's not furnishing such an Officers' Certificate.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 to 1009, inclusive, and
with any other term, provision or condition with respect to the Securities of
any series specified in accordance with Section 301 (except any such term,
provision or condition which could not be amended without the consent of all
Holders of Securities of such series pursuant to Section 902), if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities of such
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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 Company 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 Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the election
of the Company of less than all of the Securities of any series, the Company
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, in writing, of such Redemption Date and of the principal
amount of Securities of such series to be redeemed and the Redemption Price of
such Securities and any accrued interest and Additional Amounts payable with
respect thereto, if any, on the Redemption Date. 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 Company shall furnish the Trustee with an Officer's Certificate
and Opinion of Counsel 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 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.
If any Security selected for partial redemption is converted in part
before termination of the conversion or exchange right with respect to the
portion of the Security so selected, the converted or exchanged portion of such
Security shall be deemed (so far as may be) to be the portion selected for
redemption. Securities which have been converted or exchanged during a selection
of Securities to be redeemed shall be treated by the Trustee as Outstanding for
the purpose of such selection. In any case where more than one Security is
registered in the same name, the Trustee in its discretion may treat the
aggregate principal amount so registered as if it were represented by one
Security.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 days nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified by the terms of such series established
pursuant to Section 301, to each Holder of Securities to be redeemed, but
failure to give such notice in the manner herein provided to the Holder of any
Security designated for redemption as a whole or in part,
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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, 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, or for conversion or exchange;
(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 Company, 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 the
redemption on this Redemption Date pursuant to Section 305 or otherwise, the
last date, as determined by the Company, on which such exchanges may be made;
(10) the CUSIP number of such Security, if any, provided that
neither the Company not the Trustee shall have any responsibility for any such
CUSIP number;
(11) if applicable, that a Holder of Securities who desires to
convert or exchange Securities to be redeemed must satisfy the requirements for
conversion or exchange contained in such Securities, the then existing
conversion or exchange price or rate and the date and time when the option to
convert or exchange shall expire and the place or places where such Securities
may be surrendered for conversion or exchange; and
(12) such other information as the Trustee reasonably deems
appropriate.
Notice of redemption of Securities to be redeemed shall be given by the
Company or, at the Company's written request, by the Trustee in the name and at
the expense of the Company.
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SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series) sufficient to pay on the Redemption Date the Redemption Price of,
and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the currency or currencies, currency unit
or units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) (together with accrued interest and Additional
Amounts payable with respect thereto, if any, on the Redemption Date), and from
and after such date (unless the Company shall default in the payment of the
Redemption Price and accrued interest and Additional Amounts, if any) 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 Company at the Redemption Price, together
with accrued interest Additional Amounts payable with respect thereto, if any,
on 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 with
respect to Securities convertible or exchangeable into other securities or
property (including securities of other issuers, provided that such securities
are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company, 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 Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons. If any
Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal (and premium or Make-Whole Amount, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
SECTION 1107. Securities Redeemed in Part.
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Any 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 Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge
a new Security or Securities of the same series, of any authorized denomination
as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment." If provided for by the terms of any
Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund
payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of a series, (1) deliver
Outstanding Securities of such series (other than any previously called for
redemption) together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities, or which have
otherwise been acquired by the Company; 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 Company 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 amount, of optional
sinking fund payments if any, to be added in cash to the next
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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 Company 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 Company 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 thereon,
together with interest, if any, thereof accrued to the Repayment Date specified
in or pursuant to the terms of such Securities and Additional Amounts, if any,
payable thereon. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date and Additional Amounts, if any, payable thereon.
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
Company shall from time to time notify the Holders of such Securities and the
Trustee) not earlier than 60 days nor later than 30 days prior to the Repayment
Date (1) the Security so providing for such repayment together with the "Option
to Elect Repayment" form on the reverse thereof duly completed by the Holder (or
by the Holder's attorney duly authorized in writing) or (2) a telegram, telex,
facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. ("NASD"), or a
commercial bank or trust company in the United States setting forth the name of
the Holder of the Security, the principal amount of the Security, the principal
amount of the Security to be repaid, the CUSIP number, if any, or a description
of the tenor and terms of the Security, a statement that the option to elect
repayment is being exercised thereby and a guarantee that the Security to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Security, will be received by the Trustee
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not later than the fifth Business Day after the date of such telegram, telex,
facsimile transmission or letter; provided, however, that such telegram, telex,
facsimile transmission or letter shall only be effective if such Security and
form duly completed are received by the Trustee by such fifth Business Day. If
less than the entire principal amount of such Security is to be repaid in
accordance with the terms of such Security, the principal amount of such
Security to be repaid, in increments of the minimum denomination for Securities
of such series, and the denomination or denominations of the Security or
Securities to be issued to the Holder for the portion of the principal amount
of such Security surrendered that is not to be repaid, must be specified. The
principal amount of any Security providing for repayment at the option of the
Holder thereof may not be repaid in part if, following such repayment, the
unpaid principal amount of such Security would be less than the minimum
authorized denomination of Securities of or within 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 Company.
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 Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company 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 Company, together with accrued interest, if any, to the Repayment Date;
provided, however, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and provided further that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company 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 Company 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
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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 Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, 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; Company'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 to be applicable to the Securities of any series, 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 Company may at
its option by Board Resolution at any time, with respect to such Securities and
any coupons appertaining thereto elect to defease such Outstanding Securities
and any coupons appertaining thereto pursuant to Section 1402 (if applicable) or
Section 1403 (if applicable) upon compliance with the conditions set forth
below in this Article.
SECTION 1402. Defeasance and Discharge.
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company 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 Company 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 Company, 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 or
Make-Whole Amount, if any) and interest, if any, on such Securities and any
coupons appertaining thereto when such payments are due, (B) the Company'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 1011, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder including but not limited to
Section 606 hereof and (D) this Article. Subject to compliance with this
Article Fourteen, the Company may
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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 Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
be released from its obligations under Sections 1005 to 1009, inclusive, and,
if specified pursuant to Section 301, its obligations under any other covenant,
with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with Sections 1005
to 1009, inclusive, or such other covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Company 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 Company shall irrevocably have deposited or caused to be
deposited with the Trustee 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 or
Make-Whole Amount, if any) and interest and Additional Amounts, if any, on such
Securities and any coupons appertaining thereto, money in an amount, or (3) a
combination thereof 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 to pay and discharge, (i) the principal of (and
premium or Make-Whole Amount, 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
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this Indenture and of such Securities and any coupons appertaining thereto;
provided, that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such Government Obligations to said payments with
respect to such Securities. Before such a deposit, the Company may give to the
Trustee, in accordance with Section 1102 hereof, a notice of its election to
redeem all or any portion of such Outstanding Securities at a future date in
accordance with the terms of the Securities of such series and Article Eleven
hereof, which notice shall be irrevocable. Such irrevocable redemption notice,
if given, shall be given effect in applying the foregoing.
(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 Company is a party or by
which it is bound (and shall not cause the Trustee to have a conflicting
interest pursuant to Section 310(b) of the TIA with respect to any Security of
the Company).
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(6) and 501(7) and 501(8) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company 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 Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be) registration is not required
under the Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) After the 91st day following the deposit, the trust funds will not
be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
(h) 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
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imposed on the Company 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 Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium or Make-Whole Amount, if any) and interest
and Additional Amounts, if any, but such money need not be segregated from
other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
and Additional Amounts, if any, out of the proceeds yielded by converting (from
time to time as specified below in the case of any such election) the amount or
other property deposited in respect of such Security into the currency or
currency unit in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable market exchange rate for
such currency or currency unit in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the Conversion
Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
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ARTICLE 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 City of Atlanta, Georgia or the Borough
of Manhattan, The City of New York, or in London, England as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of
the Holders of Securities of such series for any purpose specified in Section
1501, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have made the first
publication of the notice of such meeting within 21 days after receipt of such
request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company 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 City of Atlanta, Georgia or the Borough of Manhattan, The
City of New York, or in London, England 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 Company and its
counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes after the time appointed for any
such meeting, the meeting shall, if convened at the request of Holders of
Securities of such series, be dissolved. In any other case the meeting may be
adjourned for a period of not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such meeting. In the absence of a
quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by the chairman
of the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
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(5) days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum. Except as limited
by the proviso to Section 902, any resolution presented to a meeting or
adjourned meeting duly reconvened at which a quorum is present as aforesaid may
be adopted by the affirmative vote of the Holders of a majority in principal
amount of the Outstanding Securities of that series; provided, however, that,
except as limited by the 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 called by
the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of or
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within the series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary
of the meeting shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series 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 Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Holders of any or all series may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such specified percentage of Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Article Six) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Article.
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a Holder or
his agent or proxy may be proved in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
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ARTICLE SIXTEEN
CONVERSION OR EXCHANGE OF SECURITIES
SECTION 1601. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are convertible or exchangeable for other securities or
property (including securities of other issuers, provided that such securities
are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company, except as otherwise specified as contemplated by
Section 301 for the Securities of such series.
SECTION 1602. Election to Exchange; Notice to Trustee and Holders.
The election of the Company to exchange any Securities shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities. On or prior to the seventh Business Day
prior to Maturity of the Securities, the Company shall provide written notice to
the Holders of record of the Securities and to the Trustee and will publish a
notice in an Authorized Newspaper stating whether the Company has made such
election.
SECTION 1603. No Fractional Shares.
No fractional shares or fractional securities shall be delivered upon
exchanges of Securities of any series. If more than one Security shall be
surrendered for exchange at one time by the same Holder, the number of full
shares or units which shall be delivered upon exchange shall be computed on the
basis of the aggregate principal amount of the Securities (or specified portions
thereof to the extent permitted hereby) so surrendered. If, except for the
provisions of this Section 1603, any Holder of a Security or Securities would be
entitled to a fractional share or unit of a security upon the exchange of such
Security or Securities, or specified portions thereof, the Company shall pay to
such Holder an amount in cash equal to the current market value of such
fractional share computed on the basis of the Closing Price of such security on
the date preceding the date on which the conversion or exchange shall be
effected in accordance with Section 1610. The "Closing Price" of any security
on any date of determination means, (i) if such security is listed or admitted
to unlisted trading privileges on a national securities exchange, the last
reported sales price on the composite tape on such exchange, or (ii) if such
security is not at the time so listed or admitted to unlisted trading privileges
on a national securities exchange, the average of the bid and asked prices of
such security in the over-the-counter market, as reported by Nasdaq or the
National Quotation Bureau, Incorporated or similar organization if neither
Nasdaq or the National Quotation Bureau, Incorporated is no longer reporting
such information, or if not so available, the market price as determined by a
nationally recognized investment banking firm retained for this purpose by the
Company.
SECTION 1604. Adjustment of Exchange Rate.
The exchange rate of Securities of any series that is exchangeable for
other securities or property (including securities of other issuers, provided
that such securities are registered under Section 12 of the Exchange Act and
such issuer is then eligible to use Form S-3 (or any successor form) for a
primary offering of its securities) shall be adjusted for any stock dividends,
stock splits, reclassification, combinations or similar transactions or any
consolidation, merger or other reorganization event in accordance with the terms
of the supplemental indenture or Board Resolution setting forth the terms of the
Securities of such series.
Whenever the exchange rate is adjusted, the Company shall compute the
adjusted exchange rate in accordance with terms of the applicable Board
Resolution or supplemental indenture and shall prepare an Officers' Certificate
setting forth the adjusted exchange rate and showing in reasonable detail the
facts upon which such adjustment is based, and such certificate shall forthwith
be filed at each office or agency maintained for the purpose of exchange of
Securities pursuant to Section 1002 and, if different, with the Trustee. The
Company shall forthwith cause a notice setting forth the adjusted exchange rate
to be mailed, first class postage prepaid, to each Holder of Securities of such
series at its address appearing on the Security Register and to any exchange
agent other than the Trustee.
SECTION 1605. Payment of Certain Taxes Upon Exchange.
The Company will pay any and all taxes that may be payable in respect
of the transfer and delivery of shares of other securities or property
(including securities of other issuers, provided that such securities are
registered under Section 12 of the Exchange Act and such issuer is then eligible
to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company on exchange of Securities pursuant hereto. The
Company shall not, however, be required to pay any tax which may be payable in
respect of any transfer involved in the delivery of shares of securities in a
name other than that of the Holder of the Security or Securities to be
exchanged, and no such transfer or delivery shall be made unless and until the
person requesting such transfer has paid to the Company the amount of any such
tax, or has established, to the satisfaction of the Company, that such tax has
been paid.
SECTION 1606. Shares Free and Clear.
The Company hereby warrants that upon exchange of Securities of any
series, the Holder of a Security shall receive all rights held by the Company in
such security for which such Security is at such time exchangeable under this
Article Sixteen, free and clear of any and all liens, claims, charges and
encumbrances other than any liens, claims, charges and encumbrances which may
have been placed on any such security by the prior owner thereof, prior to the
time such security was acquired by the Company. Except as provided in Section
1604, the Company will pay all taxes and charges with respect to the delivery of
such security delivered in exchange for Securities hereunder.
SECTION 1607. Cancellation of Security.
Upon receipt by the Trustee of Securities of any series delivered to it
for exchange under this Article Sixteen, the Trustee shall cancel and dispose of
the same as provided in Section 309.
SECTION 1608. Duties of Trustee Regarding Exchange.
Neither the Trustee nor any exchange agent shall at any time be under
any duty or responsibility to any Holder of Securities of any series that is
exchangeable into other securities or property (including securities of other
issuers, provided that such securities are registered under Section 12 of the
Exchange Act and such issuer is then eligible to use Form S-3 (or any successor
form) for a primary offering of its securities) of the Company to determine
whether any facts exist which may require any adjustment of the exchange rate,
or with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or written instrument
executed by one or more officers of the Company provided to be employed in
making the same. Neither the Trustee nor any exchange agent shall be accountable
with respect to the validity or value (or the kind or amount) of any securities
or property (including securities of other issuers, provided that such
securities are registered under Section 12 of the Exchange Act and such issuer
is then eligible to use Form S-3 (or any successor form) for a primary offering
of its securities) of the Company, or of any Securities and neither the Trustee
nor any exchange agent makes any representation with respect thereto. Subject to
the provisions of Section 612, neither the Trustee nor any exchange agent shall
be responsible for any failure of the Company to issue, transfer or deliver any
stock certificates or other securities or property (including securities of
other issuers, provided that such securities are registered under Section 12 of
the Exchange Act and such issuer is then eligible to use Form S-3 (or any
successor form) for a primary offering of its securities) upon the surrender of
any Security for the purpose of exchange or to comply with any of the covenants
of the Company contained in this Article Sixteen or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument executed by one or more duly authorized officers of the Company.
SECTION 1609. Repayment of Certain Funds Upon Exchange.
Any funds which at any time shall have been deposited by the Company or
on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Securities (including funds deposited for the sinking fund referred to in
Article Twelve hereof) and which shall not be required for such purposes because
of the exchange of such Securities as provided in this Article Sixteen shall
after such exchange be repaid to the Company by the Trustee upon the Company's
written request.
SECTION 1610. Exercise of Conversion or Exchange Privilege.
In order to exercise a conversion or exchange privilege, the Holder of
a Security of a series with such a privilege shall surrender such Security to
the Company at the office or agency maintained for that purpose pursuant to
Section 1002, accompanied by written notice to the Company that the Holder
elects to convert or exchange such Security or a specified portion thereof. Such
notice shall also state, if different from the name or names (with address) in
which the Securities are registered, the name or names in which the Securities
or property (including securities of other issuers, provided that such
securities are registered under Section 12 of the Exchange Act and such issuer
is then eligible to use Form S-3 (or any successor form) for a primary offering
of its securities) of the Company which shall be issuable on such conversion or
exchange shall be issued. Securities surrendered for conversion or exchange
shall (if so required by the Company or the Trustee) be duly endorsed by or
accompanied by instruments of transfer in forms satisfactory to the Company and
the Trustee duly executed by the registered Holder or its attorney duly
authorized in writing; and Securities so surrendered for conversion or exchange
during the period from the close of business on any Regular Record Date to the
opening of business on the next succeeding Interest Payment Date (excluding
Securities or portions thereof called for redemption during such period) shall
also be accompanied by payment in funds acceptable to the Company of an amount
equal to the interest payable on such Interest Payment Date on the principal
amount of such Security then being converted, and such interest shall be payable
to such registered Holder notwithstanding the conversion or exchange of such
Security, subject to the provisions of Section 307 relating to the payment of
Defaulted Interest by the Company. As promptly as practicable after the receipt
of such notice and of any payment required pursuant to a Board Resolution 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 setting forth the terms of such series of Security, and the surrender of
such Security in accordance with such reasonable regulations as the Company may
prescribe, the Company shall issue and shall deliver, at the office or agency at
which such Security is surrendered, to such Holder or on its written order,
securities or property (including securities of other issuers, provided that
such securities are registered under Section 12 of the Exchange Act and such
issuer is then eligible to use Form S-3 (or any successor form) for a primary
offering of its securities) of the Company issuable or deliverable upon the
conversion or exchange of such Security (or specified portion thereof), in
accordance with the provisions of such Board Resolution, Officers' Certificate
or supplemental indenture, and cash as provided therein in respect of any
fractional share otherwise issuable upon such conversion or exchange. Such
conversion or exchange shall be deemed to have been effected immediately prior
to the close of business on the date on which such notice and such payment, if
required, shall have been received in proper order for conversion or exchange by
the Company and such Security shall have been surrendered as aforesaid (unless
such Holder shall have so surrendered such Security and shall have instructed
the Company to effect the conversion or exchange on a particular date following
such surrender and such Holder shall be entitled to convert or exchange such
Security on such date, in which case such conversion or exchange shall be deemed
to be effected immediately prior to the close of business on such date) and at
such time the rights of the Holder of such Security as such Security Holder
shall cease and the person or persons in whose name or names any securities or
property (including securities of other issuers, provided that such securities
are registered under Section 12 of the Exchange Act and such issuer is then
eligible to use Form S-3 (or any successor form) for a primary offering of its
securities) of the Company shall be issuable or deliverable upon such conversion
or exchange shall be deemed to have become the Holder or Holders of record of
the shares represented thereby. Except as set forth above and subject to the
final paragraph of Section 307, no payment or adjustment shall be made upon any
conversion or exchange on account of any interest accrued on the Securities
surrendered for conversion or exchange or on account of any interest or
dividends on the Securities or property (including securities of other issuers,
provided that such securities are registered under Section 12 of the Exchange
Act and such issuer is then eligible to use Form S-3 (or any successor form) for
a primary offering of its securities) of the Company issued or delivered upon
such conversion or exchange.
Notwithstanding anything to the contrary contained herein, no Holder
may exercise any conversion or exchange privilege or right, if as a result of
such conversion or exchange such Person would be deemed to beneficially own, in
any capacity, directly or indirectly, more than 9.9% of the value of the
Company's then outstanding capital stock, and the Company and the Trustee may
take any action deemed necessary to prevent the loss of the Company's status
under the Internal Revenue Code of 1986, as amended, as a "real estate
investment trust" as a result of any conversion or exchange of any Security.
In the case of any Security which is converted or exchanged in part
only, upon such conversion or exchange the Company shall execute and the Trustee
shall authenticate and deliver to or on the order of the Holder thereof, at the
expense of the Company, a new Security or Securities of the same series, of
authorized denominations, in aggregate principal amount equal to the unconverted
or unexchanged portion of such Security.
SECTION 1611. Effect of Consolidation or Merger on Conversion
Privilege.
In case of any consolidation of the Company with, or merger of the
Company into or with any other Person, or in case of any sale of all or
substantially all of the assets of the Company, the Company or the Person formed
by such consolidation or the Person into which the Company shall have been
merged or the Person which shall have acquired such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then outstanding of any series that is convertible
into securities of the Company shall have the right, which right shall be the
exclusive conversion right thereafter available to said Holder (until the
expiration of the conversion right of such Security), to convert such Security
into the kind and amount of shares of stock or other securities or property
(including cash) receivable upon such consolidation, merger or sale by a holder
of the number of shares or units of securities of the Company into which such
Security might have been converted immediately prior to such consolidation,
merger or sale, subject to compliance with the other provisions of this
Indenture, such Security and such supplemental indenture. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in such Security. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers or sales. It is expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of Common Stock of the
Company or other securities into which the Security is convertible do not
receive shares of common stock of the surviving corporation, but receive other
securities, cash or other property or any combination thereof, Holders of
Securities shall not have the right to thereafter convert their Securities into
common stock or other securities having substantially identical terms as the
Company securities into which the Security was originally convertible of the
surviving corporation or the corporation which shall have acquired such assets,
but rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock or such other securities of the Company into which the
Securities held by such holder might have been converted immediately prior to
such consolidation, merger or sale, all as more fully provided in the first
sentence of this Section 1611. Anything in this Section 1611 to the contrary
notwithstanding, the provisions of this Section 1611 shall not apply to a merger
or consolidation of another corporation with or into the Company pursuant to
which both of the following conditions are applicable: (i) the Company is the
surviving corporation and (ii) the outstanding shares of Company Common Stock or
other securities of the Company into which the Security was originally
convertible are not changed or converted into any other securities or property
(including cash) or reclassified pursuant to the terms of such merger or
consolidation.
As evidence of the kind and amount of shares of stock or other
securities or property (including cash) into which Securities may properly be
convertible after any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices applicable with respect
thereto, the Trustee shall be furnished with and may accept the certificate or
opinion of an independent certified public accountant with respect thereto; and,
in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely thereon, and shall not be responsible or accountable to any
Holder of Securities for any provision in conformity therewith or approved by
such independent certified accountant which may be contained in said
supplemental indenture.
ARTICLE SEVENTEEN
SUBORDINATION
SECTION 1701. Agreement to Subordinate.
Except as otherwise provided in a supplemental indenture or pursuant to
Section 301, the Company agrees, and each Holder by accepting a Security agrees,
that the indebtedness evidenced by the Securities is subordinated in right of
payment, to the extent and in the manner provided in this Article, to the prior
payment in full of all Senior Debt and that the subordination is for the benefit
of the holders of Senior Debt.
SECTION 1702. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash of the principal of and interest (including interest accruing
after the commencement of any such proceeding) to the date of payment on the
Senior Debt before Holders shall be entitled to receive any payment of
principal of or interest on Securities;
(2) until the Senior Debt is paid in full in cash, any
distribution to which Holders would be entitled but for this Article shall be
made to holders of Senior Debt as their interests may appear, except that
Holders may receive securities that are subordinated to Senior Debt to at least
the same extent as the Securities; and
(3) the Trustee is entitled to conclusively rely upon an order or
decree of a court of competent jurisdiction or a certificate of a bankruptcy
trustee or other similar official for the purpose of ascertaining the persons
entitled to participate in such distribution, the holders of Senior Debt and
other Company debt, the amount thereof or payable thereon and all other
pertinent facts relating to the Trustee's obligations under this Article
Seventeen.
SECTION 1703. Default on Senior Debt.
The Company may not pay principal of or interest on the Securities and
may not acquire any Securities for cash or property other than capital stock of
the Company if:
(1) a default on Senior Debt occurs and is continuing that permits
holders of such Senior Debt to accelerate its maturity, and
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give it pursuant
to Section 1711. If the Company receives any such notice, a similar notice
received within nine months thereafter relating to the same default on the same
issue of Senior Debt shall not be effective for purposes of this Section.
The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the
default is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
SECTION 1704. Acceleration of Securities.
67
<PAGE> 75
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company may pay the Securities when 120 days pass after the
acceleration occurs if this Article permits the payment at that time.
SECTION 1705. When Distribution Must Be Paid Over.
If a distribution is made to Holders that because of this Article
should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt and pay it over to them as
their interests may appear.
SECTION 1706. Notice by Company.
The Company shall promptly notify the Trustee, in writing, and any
Paying Agent of any facts known to the Company that would cause a payment of
principal of or interest on Securities to violate this Article.
SECTION 1707. Subrogation.
After all Senior Debt is paid in full and until the Securities are
paid in full, Holders shall be subrogated to the rights of holders of Senior
Debt to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the Holders have been applied to the payment
of Senior Debt. A distribution made under this Article to holders of Senior
Debt which otherwise would have been made to Holders is not, as between the
Company and Holders, a payment by the Company on Senior Debt.
SECTION 1708. Relative Rights.
This Article defines the relative rights of Holders and holders of
Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon an Event of Default, subject to the rights of holders
of Senior Debt to receive distributions otherwise payable to Holders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a default.
SECTION 1709. Subordination May Not Be Impaired By Company.
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Securities shall be impaired by any act or
failure to act by the Company or by its failure to comply with this Indenture.
SECTION 1710. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
SECTION 1711. Rights of Trustee and Paying Agent.
The Trustee or any Paying Agent may continue to make payments on the
Securities until it receives written notice of facts that would cause a payment
of principal of or interest on the Securities to violate this
68
<PAGE> 76
Article. Only the Company, a Representative or a holder of an issue of Senior
Debt that has no Representative may give the written notice.
The Trustee has no fiduciary duty to the holders of Senior Debt other
than as created under this Indenture. The Trustee in its individual or any
other capacity may hold Senior Debt with the same rights it would have if it
were not Trustee.
The Company's obligation to pay, and the Company's payment of, the
amounts required by Section 606 are excluded from the operation of this
Article Seventeen.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed by their respective officers hereunto duly authorized, all as
of the day and year first above written.
IRT PROPERTY COMPANY
By: /S/ MARY M. THOMAS
-------------------------------------
Name: Mary M. Thomas
------------------------------
Title: Executive Vice President
-----------------------------
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ PHILIP DEMOUEY
-------------------------------------
Name: Philip DeMouey
------------------------------
Title: Vice President
-----------------------------
SUNTRUST BANK, ATLANTA, as Trustee
By: /S/ KRISTINE PRALL
-------------------------------------
Name: Kristine Prall
------------------------------
Title: Trust Officer
-----------------------------
69
<PAGE> 77
EXHIBIT A
FORM 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 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
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise__________________ or its agent that such
financial institution will provide a certificate within a reasonable time
stating that it agrees to comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by a financial institution for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.1635(c)(2)(i)(D)(7)), and, such financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), certifies that it has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date. This certificate excepts and does not
relate to [U.S.$] of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand an
exchange for an interest in a permanent global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest)
cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If
<PAGE> 78
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated:_________________, ____ [To be dated no earlier than the 15th
day prior to the earlier of (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 Signator)
Name:
Title:
<PAGE> 79
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, (U.S.$)
principal amount of the above-captioned Securities (i) is owned by persons(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 United States 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_________________________ or its agent that such financial institution
will provide a certificate within a reasonable time stating that it agrees to
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 a financial institution 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 that such 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
<PAGE> 80
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceedings.
Dated:_________________________ , ____
[To be dated no earlier than the earlier of the Exchange Date or the relevant
Interest Payment Date occurring prior to the Exchange Date, as applicable]
,
as
By:
<PAGE> 1
EXHIBIT 99.1
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
IRT PROPERTY COMPANY,
AS BORROWER,
NATIONSBANK, N.A.,
AMSOUTH BANK AND
FIRST UNION NATIONAL BANK,
AS BANKS,
NATIONSBANK, N.A.,
AS THE SWING LINE LENDER,
NATIONSBANK, N.A.,
AS ADMINISTRATIVE AGENT FOR THE BANKS
AND
NATIONSBANC MONTGOMERY SECURITIES LLC,
AS LEAD ARRANGER
AS OF SEPTEMBER 9, 1998
$100,000,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
<S> <C>
ARTICLE 1 - DEFINITIONS...........................................................................................2
ARTICLE 2 - LOANS................................................................................................18
Section 2.1 The Loans..................................................................................18
Section 2.2 Manner of Borrowing and Disbursement.......................................................18
Section 2.3 Interest...................................................................................21
Section 2.4 Fees and Commissions.......................................................................22
Section 2.5 Reduction of Commitment....................................................................23
Section 2.6 Prepayment.................................................................................23
Section 2.7 Repayment..................................................................................24
Section 2.8 Notes; Loan Accounts.......................................................................24
Section 2.9 Manner of Payment..........................................................................25
Section 2.10 Application of Payments....................................................................26
Section 2.11 Reimbursement..............................................................................27
Section 2.12 Capital Adequacy...........................................................................27
Section 2.13 Bank Tax Forms.............................................................................28
Section 2.14 Extension of the Maturity Date.............................................................28
Section 2.15 Swing Line Loans...........................................................................29
ARTICLE 3 - CONDITIONS PRECEDENT.................................................................................31
Section 3.1 Conditions Precedent to Effectiveness......................................................31
Section 3.2 Conditions Precedent to Each Advance.......................................................32
ARTICLE 4 - REPRESENTATIONS AND WARRANTIES.......................................................................33
Section 4.1 Representations and Warranties.............................................................33
Section 4.2 Survival of Representations and Warranties, etc............................................40
ARTICLE 5 - GENERAL COVENANTS....................................................................................41
Section 5.1 Preservation of Existence and Similar Matters..............................................41
Section 5.2 Business: Compliance with Applicable Law...................................................41
Section 5.3 Maintenance of Properties..................................................................41
Section 5.4 Accounting Methods and Financial Records...................................................42
Section 5.5 Insurance..................................................................................42
Section 5.6 Payment of Taxes and Claims................................................................43
Section 5.7 Visits and Inspections.....................................................................43
Section 5.8 Payment of Indebtedness; Loans.............................................................43
Section 5.9 Use of Proceeds............................................................................43
Section 5.10 ERISA......................................................................................44
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 5.11 Indemnity..................................................................................44
Section 5.12 Payment of Wages...........................................................................44
Section 5.13 Accuracy and Completeness of Information...................................................44
Section 5.14 Compliance with Environmental Laws.........................................................44
Section 5.15 Indemnity in Regard to Environmental Matters...............................................45
Section 5.16 Further Assurances.........................................................................46
Section 5.17 Broker's Claims............................................................................46
Section 5.18 Covenants Regarding Formation of Subsidiaries and Acquisitions.............................46
Section 5.19 Year 2000 Compliance.......................................................................47
ARTICLE 6 - INFORMATION COVENANTS................................................................................47
Section 6.1 Quarterly Operations Statements............................................................47
Section 6.2 Quarterly Consolidated Financial Statements and Information................................47
Section 6.3 Annual Consolidated Financial Statements and Information;
Certificate of No Default..................................................................48
Section 6.4 Performance Certificates...................................................................48
Section 6.5 Copies of Other Reports....................................................................49
Section 6.6 Notice of Litigation and Other Matters.....................................................49
Section 6.7 Matters Affecting the Negative Pledge Property.............................................50
Section 6.8 Notices from the Borrower Regarding Environmental Matters..................................51
ARTICLE 7 - NEGATIVE COVENANTS...................................................................................51
Section 7.1 Indebtedness of the Borrower...............................................................51
Section 7.2 Limitation on Liens........................................................................52
Section 7.3 Amendment and Waiver.......................................................................52
Section 7.4 Liquidation; Disposition or Acquisition of Assets..........................................52
Section 7.5 Limitation on Guaranties...................................................................53
Section 7.6 Dividends..................................................................................53
Section 7.7 Borrower Net Worth.........................................................................53
Section 7.8 Indebtedness Ratio.........................................................................53
Section 7.9 Interest Coverage..........................................................................54
Section 7.10 Collateral Value...........................................................................54
Section 7.11 Total Liabilities to Total Assets Ratio....................................................54
Section 7.12 Net Income.................................................................................54
Section 7.13 Debt Service Coverage Ratio................................................................54
Section 7.14 Value of Unencumbered Real Estate Assets...................................................54
Section 7.15 Affiliate Transactions.....................................................................54
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
Section 7.16 ERISA Liabilities..........................................................................54
Section 7.17 Business of the Borrower...................................................................54
Section 7.18 Total Secured Liabilities to Total Assets..................................................55
Section 7.19 Limitation on Nonconforming Investments....................................................55
ARTICLE 8 - DEFAULT..............................................................................................56
Section 8.1 Events of Default..........................................................................56
Section 8.2 Remedies...................................................................................59
ARTICLE 9 - THE ADMINISTRATIVE AGENT.............................................................................60
Section 9.1 Appointment and Authorization..............................................................60
Section 9.2 Delegation of Duties.......................................................................60
Section 9.3 Interest Holders...........................................................................60
Section 9.4 Consultation with Counsel..................................................................60
Section 9.5 Documents..................................................................................60
Section 9.6 Administrative Agent and Affiliates........................................................61
Section 9.7 Responsibility of the Administrative Agent.................................................61
Section 9.8 Action by Administrative Agent.............................................................61
Section 9.9 Notice of Default or Event of Default......................................................62
Section 9.10 Responsibility Disclaimed..................................................................62
Section 9.11 Indemnification............................................................................63
Section 9.12 Credit Decision............................................................................63
Section 9.13 Successor Administrative Agent.............................................................63
ARTICLE 10 - CHANGE IN CIRCUMSTANCES AFFECTING LIBOR ADVANCES....................................................64
Section 10.1 LIBOR Basis Determination Inadequate or Unfair.............................................64
Section 10.2 Illegality.................................................................................64
Section 10.3 Increased Costs............................................................................65
Section 10.4 Effect On Other Advances...................................................................66
Section 10.5 Claims for Increased Costs and Taxes.......................................................66
ARTICLE 11 - MISCELLANEOUS.......................................................................................67
Section 11.1 Notices....................................................................................67
Section 11.2 Expenses...................................................................................69
Section 11.3 Waivers....................................................................................69
Section 11.4 Set-Off....................................................................................70
Section 11.5 Assignment.................................................................................71
Section 11.6 Counterparts...............................................................................73
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
Section 11.7 Governing Law.........................................................................73
Section 11.8 Severability..........................................................................73
Section 11.9 Headings..............................................................................74
Section 11.10 Interest..............................................................................74
Section 11.11 Entire Agreement......................................................................74
Section 11.12 Amendment and Waiver..................................................................74
Section 11.13 Other Relationships...................................................................75
Section 11.14 Bank Wiring Instructions..............................................................75
Section 11.15 Confidentiality.......................................................................75
ARTICLE 12 - WAIVER OF JURY TRIAL..............................................................................76
Section 12.1 Waiver of Jury Trial..................................................................76
</TABLE>
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<PAGE> 6
EXHIBITS AND SCHEDULES
<TABLE>
<S> <C>
Exhibit A - Form of Note
Exhibit B-1 - Form of Request for Advance
Exhibit B-2 - Form of Request for Swing Line Advance
Exhibit C - Form of Subsidiary Guarantee
Exhibit D - Form of Swing Line Note
Exhibit E - Form of Opinion of Borrower's Counsel
Exhibit F - Form of Borrower's Loan Certificate
Exhibit G - Form of Subsidiary's Loan Certificate
Schedule 1 - Negative Pledge Property
Schedule 2 - Liens of Record
Schedule 3 - Environmental Matters
Schedule 4 - Indebtedness
Schedule 5 - Income Producing Properties
</TABLE>
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<PAGE> 7
AMENDED AND RESTATED LOAN AGREEMENT
IRT PROPERTY COMPANY,
as Borrower,
NATIONSBANK, N.A,
AMSOUTH BANK and
FIRST UNION NATIONAL BANK,
as Banks,
NATIONSBANK, N.A.,
as the Swing Line Lender,
and
NATIONSBANK, N.A.,
as Administrative Agent for the Banks,
agree as follows as of the 9th day of September, 1998
WHEREAS, the Borrower, the Banks, the Swing Line Lender and the
Administrative Agent are all parties to that certain Loan Agreement dated as of
December 15, 1995 (the "Prior Loan Agreement"); and
WHEREAS, the Administrative Agent, the Swing Line Lender, the Banks and
the Borrower have agreed to amend and restate the Prior Loan Agreement in its
entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the security
interest granted to the Administrative Agent, for itself and on behalf of the
Swing Line Lender and the Banks, pursuant to the Prior Loan Agreement and the
Loan Documents (as defined in the Prior Loan Agreement) executed in connection
therewith shall remain outstanding and in full force and effect in accordance
with the Prior Loan Agreement and shall continue to secure the Obligations (as
defined therein); and
WHEREAS, the Borrower acknowledges and agrees that (i) the Obligations
(as defined herein) represent, among other things, the amendment and
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection with
the Prior Loan Agreement and the other Loan Documents (as defined in the Prior
Loan Agreement) executed in connection therewith; (ii) the parties hereto intend
that the Prior Loan Agreement and the other Loan Documents (as defined in the
Prior Loan Agreement) executed in connection therewith and the collateral
pledged thereunder shall secure, without interruption or impairment of any kind,
all existing
<PAGE> 8
Indebtedness under the Prior Loan Agreement and the other Loan Documents (as
defined in the Prior Loan Agreement) executed in connection therewith as so
amended, restated, restructured, renewed, extended, consolidated and modified
hereunder, together with all other Obligations hereunder; and (iii) all Liens
evidenced in connection with the Prior Loan Agreement and the other Loan
Documents (as defined in the Prior Loan Agreement) executed in connection
therewith are hereby ratified, confirmed and continued; and
WHEREAS, the parties hereto intend that the provision of the Prior Loan
Agreement, to the extent restructured, restated, renewed, extended,
consolidated, amended and modified hereby, are hereby superseded and replaced by
the provisions hereof;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1 - Definitions.
For the purposes of this Agreement:
"Administrative Agent" shall mean NationsBank, N.A. (or any successor
Administrative Agent appointed in accordance with this Agreement), acting as
administrative agent for the Banks and the Swing Line Lender.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at the address set forth in Section 11.1 hereof, or
such other office as may be designated pursuant to the provisions of Section
11.1 hereof.
"Advance" or "Advances" shall mean amounts advanced by the Banks to the
Borrower pursuant to Article 2 hereof on the occasion of any borrowing.
"Affiliate" shall mean any Person directly or indirectly controlling,
controlled by, or under common control with the Borrower excluding, however,
directors, officers or employees of the Borrower.
"Agreement" shall mean this Loan Agreement.
"Agreement Date" shall mean September 9, 1998.
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations, and orders of governmental
bodies or regulatory agencies
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<PAGE> 9
applicable to such Person, including, without limitation, all orders and decrees
of all courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it is bound.
"Applicable Margin" shall mean, in the case of the LIBOR Basis, as of
any calculation date, the Applicable Margin set forth below opposite the rating
then assigned by S&P and Moody's to the senior unsecured long-term debt
obligations of the Borrower set forth below (changes in the Applicable Margin
shall be effective on the date any such rating changes):
<TABLE>
<CAPTION>
Ratings Assigned by S&P and Moody's Applicable Margin
<S> <C>
(i) A- or greater 0.95%
(ii) BBB+/Baa1 1.05%
(iii) BBB/Baa2 1.15%
(iv) BBB-/Baa3 1.25%
(v) less than BBB-/Baa3 1.40%
</TABLE>
provided, however, that on any calculation date that the ratings assigned fall
in more than one level, the higher Applicable Margin shall apply.
"Authorized Signatory" shall mean, with respect to any Person, such
senior personnel of such Person as may be duly authorized and designated in
writing by the Person to execute documents, agreements, and instruments on
behalf of the Person. The Authorized Signatories of the Borrower as of the
Agreement Date are as set forth in the Borrower's Loan Certificate delivered
pursuant to Section 3.1 hereof.
"Availability Restriction" shall mean, as of any particular time, the
product of (a) the Value of Negative Pledge Property and (b) sixty-five percent
(65%).
"Available Commitment" shall mean, as of any particular time, (a) the
lesser of (i) the Commitment and (ii) the Availability Restriction minus (b) the
sum of (i) the Loans then outstanding and (ii) the Swing Line Loans then
outstanding; provided, however, that the Available Commitment may not at any
time exceed the Availability Restriction.
"Available Swing Line Commitment" shall mean, as of any particular
time, the lesser of (i) the Swing Line Commitment minus Swing Line Advances then
outstanding, (ii) (A) the Lender's Available Commitment of the Swing Line Lender
minus (B) the sum of the Bank Loans Outstanding of the Swing Line Lender and the
aggregate principal amount of all
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<PAGE> 10
Swing Line Loans then outstanding, (iii) the Availability Restriction and (iv)
the Available Commitment.
"Bank Loans Outstanding" shall mean, as of any particular time, with
respect to any Bank hereunder, the aggregate amount of the Loans (exclusive of
Swing Line Loans) then outstanding made by such Bank to the Borrower.
"Banks" shall mean those banks whose names are set forth on the
signature pages hereof under the heading "Banks" and any assignees of the Banks
which hereafter become parties hereto pursuant to and in accordance with Section
11.5 hereof; and "Bank" shall mean any one of the foregoing Banks.
"Borrower" shall mean IRT Property Company, a Georgia corporation.
"Business Day" shall mean a day on which banks are not authorized or
required to be closed and foreign exchange markets are open for the transaction
of business required for this Agreement in Atlanta, Georgia and London, England,
as relevant to the determination to be made or the action to be taken.
"Capital Expenditures" shall mean expenditures for the purchase or
improvement of assets of long-term use which are capitalized in accordance with
GAAP.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a specified Person as lessee under a lease which at the time would
be required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time (42 U.S.C. ss.ss. 9601,
et seq.).
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" shall mean the several obligations of the Banks to advance
funds in the aggregate sum of up to $100,000,000 to the Borrower pursuant to the
terms hereof, as such obligations may be reduced from time to time pursuant to
the terms hereof.
"Commitment Ratios" shall mean the percentages as of the date of
determination in which the Banks are severally bound to satisfy the Commitment
to make Advances to the Borrower pursuant to the terms hereof, which as of the
Agreement Date are as set forth below:
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<PAGE> 11
<TABLE>
<CAPTION>
Percentage
(Rounded to the Dollar
Bank nearest 1/10%) Commitment
<S> <C> <C>
NationsBank, N.A. 35% $35,000,000
AmSouth Bank 25% $25,000,000
First Union National Bank 40% $40,000,000
TOTAL: 100% $100,000,000
</TABLE>
"Consolidated Entity" shall mean any Person whose accounts are
consolidated with those of the Borrower in accordance with GAAP.
"Debt Service" shall mean with respect to any period the debt service
on the Commitment calculated using an implied rate equal to the 7-year Treasury
constant maturity rate plus 1.75%, with a 25-year amortization period.
"Debt Service Coverage Ratio" shall mean, as of any calculation date,
the ratio of the NOI for all Negative Pledge Properties for the twelve calendar
month period preceding the calculation date to Debt Service for the twelve
calendar month period preceding the calculation date.
"Default" shall mean any event, act or condition specified in Section
8.1 hereof which with any passage of time or giving of notice (or both) would
constitute such event an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the
sum of (a) the otherwise applicable rate of interest plus (b) two percent (2%).
"EBITDA" shall mean the amount equal to the net earnings of the
Borrower in a single fiscal year plus the sum for such year of (1) all federal
and state income taxes payable by the Borrower plus (2) the total depreciation
and amortization actually taken on the books and records of the Borrower with
respect to all the tangible assets of the Borrower, and plus (3) all Interest on
Indebtedness for Money Borrowed.
"Environmental Laws" means all present and future federal, state and
local laws, including the applicable rules and regulations promulgated
thereunder, all judicial interpretations thereof, all judgments, decrees, order
concessions, grants, franchises, agreements, and other governmental restrictions
and rules of common law relating to the
-5-
<PAGE> 12
environment or to health or safety risks arising therefrom, including, without
limitation, CERCLA, the Resource Conservation and Recovery Act of 1976 (42
U.S.C. ss. 6901 et seq.), the Hazardous Materials Transportation Act (49 U.S.C.
ss. 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. ss. 1251
et seq.), the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic Substances
Control Act (15 U.S.C. ss. 2601 et seq.), the National Environmental Policy Act
(42 U.S.C. ss. 4321 et seq.) and the Safe Drinking Water Act (42 U.S.C. ss.
300f-ss. 300j), as they may be amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as in effect on the Agreement Date and as such Act may be amended thereafter
from time to time.
"ERISA Affiliate" shall mean (a) any corporation which is a member of
the same controlled group of corporations (within the meaning of Code Section
414(b)) as is the Borrower, (b) any other trade or business (whether or not
incorporated) under common control (within the meaning of Code Section 414(c))
with the Borrower, (c) any other corporation, partnership or other organization
which is a member of an affiliated service group (within the meaning of Code
Section 414(m)) with the Borrower, or (d) any other entity required to be
aggregated with the Borrower pursuant to regulations under Code Section 414(o).
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time, or both,
has been satisfied.
"Funds From Operations" shall mean net cash flow from operating
activities (as determined by GAAP) before changes in accrued assets and
liabilities (and shall not include a deduction for preferred stock dividends).
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles consistently applied.
"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guaranty" or "Guaranteed," as applied to an obligation (each a
"primary obligation"), shall mean and include (a) any guaranty, direct or
indirect, in any manner, of any part or all of such primary obligation, and (b)
any agreement, direct or indirect, contingent or otherwise, the practical effect
of which is to assure in any way the payment or performance (or payment of
damages in the event of non-performance) of any part or all of such primary
obligation, including, without limiting the foregoing, any reimbursement
-6-
<PAGE> 13
obligations as to amounts drawn down by beneficiaries of outstanding letters of
credit, and any obligation of such Person (the "primary obligor"), whether or
not contingent, (i) to purchase any such primary obligation or any property or
asset constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of such primary obligation or (2)
to maintain working capital, equity capital or the net worth, cash flow,
solvency or other balance sheet or income statement condition of any other
Person, (iii) to purchase property, assets, securities or services primarily for
the purpose of assuring the owner or holder of any primary obligation of the
ability of the primary obligor with respect to such primary obligation to make
payment thereof or (iv) otherwise to assure or hold harmless the owner or holder
of such primary obligation against loss in respect thereof.
"Hazardous Materials" means any and all hazardous or toxic substances,
pollutants, contaminants, petroleum and gas products, including (without
limitation) solid, semi-solid, liquid or gaseous substances which are toxic,
ignitable, corrosive, carcinogenic or otherwise dangerous to human, plant or
animal health and well-being, including (without limitation) crude oil or any
fraction thereof, natural gas, natural gas liquids, liquified natural gas or
synthetic gas usable for fuel, and including (without limitation) materials
defined as hazardous wastes or substances under any of the Environmental Laws.
"Indebtedness" shall mean, with respect to the Borrower or any of its
Subsidiaries, (a) all items, except items of consolidated shareholders' equity
or capital stock or surplus or general contingency or deferred tax reserves,
which in accordance with generally accepted accounting principles would be
included in determining total liabilities as shown on the liability side of a
consolidated balance sheet of the Borrower, (b) all reimbursement obligations
with respect to outstanding letters of credit, and (c) all Guaranties of
Indebtedness.
"Indebtedness for Money Borrowed" shall mean, with respect to any
specified Person, all money borrowed by such Person and Indebtedness represented
by notes payable by such Person and drafts accepted representing extensions of
credit to such Person, all obligations of such Person evidenced by bonds,
debentures, notes, or other similar instruments, all Indebtedness of such Person
upon which interest charges are customarily paid, and all Indebtedness of such
Person issued or assumed as full or partial payment for property or services,
whether or not any such notes, drafts, obligations, or Indebtedness represent
Indebtedness for money borrowed. For purposes of this definition, interest which
is accrued but not paid on the original due date or within any applicable cure
or grace period as provided by the underlying contract for such interest shall
be deemed Indebtedness for Money Borrowed.
-7-
<PAGE> 14
"Interest on Indebtedness for Money Borrowed" shall mean the total
interest due and payable by Borrower and any of its Subsidiaries in any period
with respect to, or as a result of, Indebtedness for Money Borrowed.
"Interest Period" shall mean, (a) in connection with any Prime Rate
Advance, the period beginning on the date such Advance is made and ending on
(and shall include) the last day of the calendar month in which such Advance is
made, provided, however, that if a Prime Rate Advance is made on the last day of
any calendar month, it shall have an Interest Period ending on (and shall
include) the last day of the following calendar month; and (b) in connection
with any LIBOR Advance, the term of such Advance selected by the Borrower or
otherwise determined in accordance with this Agreement. Notwithstanding the
foregoing, however, (i) any applicable Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the next succeeding
Business Day unless, with respect to LIBOR Advances only, such Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day, (ii) with respect to LIBOR Advances only, any
applicable Interest Period which begins on a day for which there is no
numerically corresponding day in the calendar month during which such Interest
Period is to end shall (subject to clause (i) above) end on the last day of such
calendar month, and (iii) no Interest Period shall extend beyond the Maturity
Date or such earlier date as would interfere with the repayment obligations of
the Borrower hereunder. Interest shall be due and payable with respect to any
Advance as provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Prime Rate Basis, or the LIBOR
Basis as appropriate.
"Lender's Available Commitment" shall mean, as of any particular time,
for any Bank, such Bank's portion of the lesser of (i) the Availability
Restriction and (ii) the Commitment on such date (based on such Bank's
Commitment Ratio).
"LIBOR" shall mean, for any Interest Period, the rate per annum
appearing on Telerate Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term LIBOR shall mean, for any LIBOR Advance for any Interest
Period therefor, the rate per annum appearing on the Reuters Screen LIBO Page as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two (2) Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however, if more
than one rate is specified on the Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
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<PAGE> 15
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
made as a LIBOR Advance or which is deemed to be a LIBOR Advance in accordance
with the provisions of Section 2.2 hereof, and which shall be in a principal
amount of at least $1,000,000 and in an integral multiple of $1,000,000.
"LIBOR Basis" shall mean a simple per annum interest rate equal to the
sum of (a) the quotient of (1) LIBOR divided by (2) one minus the LIBOR Reserve
Percentage, stated as a decimal, plus (b) the Applicable Margin. If the LIBOR
Basis as so calculated is not expressed as an even multiple of one sixteenth of
one percent (1/16%), the LIBOR Basis shall be rounded upward to the nearest
one-sixteenth of one percent (1/16%) and shall apply to Interest Periods of one
(1), two (2), three (3), six (6) and twelve (12) months, and, once determined,
shall remain unchanged during the applicable Interest Period, except for changes
to reflect adjustments in the LIBOR Reserve Percentage.
"LIBOR Reserve Percentage" shall mean the percentage which is in effect
from time to time under Regulation D of the Board of Governors of the Federal
Reserve System, as such regulation may be amended from time to time, as the
maximum reserve requirement applicable with respect to Eurocurrency Liabilities
(as that term is defined in Regulation D), whether or not any Bank has any
Eurocurrency Liabilities subject to such reserve requirement at that time. The
LIBOR Basis for any LIBOR Advance shall be adjusted as of the effective date of
any change in the LIBOR Reserve Percentage.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, assignment, charge, security interest, title retention agreement, levy,
execution, seizure, attachment, garnishment, or other encumbrance of any kind in
the nature of any of the foregoing in respect of such property, whether or not
choate, vested, or perfected.
"Loan Documents" shall mean, without limitation, this Agreement, the
Notes, the Swing Line Note, all legal opinions or reliance letters issued by
counsel to the Borrower in connection herewith, all Requests for Advance, and
all other documents, instruments, certificates and agreements executed or
delivered in connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, amounts advanced by the Banks to the
Borrower under the Commitment, not to exceed the Commitment, and evidenced by
the Notes.
"Majority Banks" shall mean, at any time, Banks the total of whose
Commitment Ratios exceeds sixty-six and two-thirds percent (66-2/3%) of the
Commitment Ratios of all Banks entitled to vote with respect thereto.
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<PAGE> 16
"Materially Adverse Effect" shall mean a materially adverse effect upon
the business, assets, liabilities, financial condition, results of operations,
or business prospects of the Borrower or upon the ability of the Borrower to
perform any material obligations under this Agreement or any other Loan
Documents; in any case, whether resulting from any single act, omission,
situation, status, event, or undertaking, or several acts, omissions,
situations, statuses, events, or undertakings.
"Maturity Date" shall mean January 4, 2001, or such earlier date as
payment of the Loans shall be due (whether by acceleration or otherwise) or such
later date as to which payment of the Loans may be extended in accordance with
the terms hereof.
"Moody's shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean all authorizations, consents,
permits, approvals, licenses, and exemptions from, and all filings and
registrations with, and all reports to, any governmental or other regulatory
authority whether federal, state, or local, and all agencies thereof necessary,
appropriate or useful for the conduct of the businesses and the ownership (or
lease) of the properties and assets of the Borrower and its Subsidiaries.
"Negative Pledge Properties" shall mean those certain real properties
owned by the Borrower or any Subsidiary Guarantor and, as of the Agreement Date,
more particularly described on Schedule 1 attached hereto and shall (a) include
any other properties which the Banks whose Commitment Ratios equal 100% of the
total Commitment Ratios, in their sole discretion, permit to be designated as
"Negative Pledge Properties" hereunder and (b) exclude any properties which the
Borrower requests to have removed from the pool of Negative Pledge Properties.
"Net Book Value" shall mean, for any asset of the Borrower or its
Subsidiaries, the cost basis of such asset less the accumulated depreciation for
such asset as set forth in the books and records of the Borrower, all determined
in accordance with GAAP.
"Net Proceeds" shall mean, with respect to any issuance by the Borrower
of any common stock, the gross sales price for the securities being sold, net of
(a) amounts reserved, if any, for taxes payable with respect to the sale, (b)
reasonable and customary transaction costs payable by the Borrower, (c)
contingencies with respect to such sale appropriately
-10-
<PAGE> 17
reserved for by the Borrower, and (d) until actually received by the Borrower,
any portion of the sales price held in escrow or paid in installments.
"Net Worth" shall mean the sum of (1) consolidated shareholder's equity
of the Borrower as calculated pursuant to GAAP plus (2) the total accumulated
depreciation reflected on the consolidated balance sheet of Borrower with
respect to all the tangible assets of the Borrower.
"NOI" shall mean, for any Negative Pledge Property or Unencumbered Real
Estate Assets, (a) the total gross income of such property less (b) the sum of
(i) all operating expenses of such property (which includes, without limitation,
amortization of leasing fees) and (ii) capital expense and tenant improvement
reserves in the amount of twenty cents ($.20) per square foot of building space,
except that no such capital expense reserve shall be charged with respect to
building space for which a Person other than the Borrower or its Subsidiaries
has a contractual responsibility for structural repairs and replacements.
"Nonrecourse" shall mean, with respect to Indebtedness of the Borrower
or its Subsidiaries, Indebtedness for which the Borrower or such Subsidiary has
no personal liability (other than to the extent of the property securing such
Indebtedness) except under circumstances which are reasonable and customary in
the commercial real estate lending industry.
"Notes" shall mean those certain promissory notes in the aggregate
principal amount of up to $100,000,000; one such note issued to each of the
Banks by the Borrower, each one in substantially the form of Exhibit A attached
hereto, any other promissory notes issued pursuant to this Agreement in respect
of the Commitment, and any extensions, renewals or amendments to any of the
foregoing.
"Obligations" shall mean (a) all payment and performance obligations of
the Borrower and all other obligors to the Banks, the Swing Line Lender and the
Administrative Agent under this Agreement and the other Loan Documents, as they
may be amended from time to time, or as a result of making the Loans and the
Swing Line Loans, and (b) the obligation to pay an amount equal to the amount of
any and all damages which the Banks, the Swing Line Lender and the
Administrative Agent, or any of them, may suffer by reason of a breach by either
the Borrower or any other obligor of any obligation, covenant, or undertaking
with respect to this Agreement or any other Loan Document.
"Overnight Federal Funds Rate" shall mean the rate on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers, as published for such day by the Federal Reserve Bank of
New York.
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"Payment Date" shall mean the first Business Day of each calendar
month.
"Permitted Liens" shall mean, as applied to any specified Person:
(a) Any Lien in favor of the Administrative Agent or the
Banks given to secure the Obligations;
(b) (i) Liens on real estate for real estate taxes not
yet delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies, or claims the non-payment of which is being contested in good
faith by appropriate proceedings and for which adequate reserves have been set
aside on such Person's books, but only so long as no foreclosure, distraint,
sale, or similar proceedings have been commenced with respect thereto and which
remain unstayed for a period of thirty (30) days after their commencement;
(c) Liens of carriers, warehousemen, mechanics, laborers,
and materialmen incurred in the ordinary course of business for sums not yet due
or being contested in good faith, if such reserve or appropriate provision, if
any, as shall be required by GAAP shall have been made therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance;
(e) Restrictions on the transfer of assets imposed by any
agreement, or by any federal, state or local statute, regulation or ordinance
applicable to such Person;
(f) Easements, rights-of-way, restrictions, and other
similar encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person, or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not incurred in connection with Indebtedness or other extensions of
credit and which do not in the aggregate materially detract from the value of
such properties or materially impair their use in the operation of the business
of such Person;
(g) Purchase money mortgages or security interests,
conditional sale arrangements and other similar security interests and mortgages
or security interests subject to which such property is acquired (together with
any renewal or other refinancing thereof), on any property or assets hereinafter
acquired by such Person (hereafter referred to individually as a "Purchase Money
Security Interest"); provided, however, that:
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(i) the transaction in which any Purchase Money
Security Interest is proposed to be created is not otherwise prohibited by this
Agreement;
(ii) any Purchase Money Security Interest shall
attach only to the property or asset acquired in such transaction and shall not
extend to or cover any other assets or properties of such Person;
(iii) the Indebtedness secured or covered by any
Purchase Money Security Interest shall not exceed the cost of the property or
asset acquired; and
(iv) the Indebtedness secured by Purchase Money
Security Interests shall be Nonrecourse to the Borrower or any of its
Subsidiaries;
(h) Liens of record on the Agreement Date as set forth on
Schedule 2 attached hereto;
(i) Liens securing Indebtedness permitted under Section
7.1 hereof; and
(j) leases with respect to which Borrower (or any of its
Subsidiaries) is the lessor with respect to real property owned by the Borrower
or such Subsidiary and which are entered into by the Borrower or such Subsidiary
in the ordinary course of its business.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, or unincorporated organization, or a government or any
agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA maintained by or contributed to by the Borrower or any
ERISA Affiliate.
"Prime Rate" shall mean, at any time, the fluctuating and floating rate
per annum equal to the rate of interest announced by the Administrative Agent as
its reference rate for the determination of interest rates for loans of varying
maturities in U.S. Dollars to United States residents of varying degrees of
creditworthiness and being quoted by the Administrative Agent as its "prime
rate." The Prime Rate is not necessarily the lowest rate of interest charged to
borrowers of the Administrative Agent.
"Prime Rate Advance" shall mean an Advance which the Borrower requests
to be made as a Prime Rate Advance or is deemed to be a Prime Rate Advance in
accordance with the provisions of Section 2.2 hereof. Prime Rate Advances may be
in any amount designated by the Borrower, provided that such amount is a whole
dollar amount.
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"Prime Rate Basis" shall mean a simple interest rate per annum equal to
the Prime Rate. The Prime Rate Basis shall be adjusted automatically as of the
opening of business on the effective date of each change in the Prime Rate to
account for such change.
"Property" shall mean any real property or personal property, plant,
building, facility, structure, underground storage tank or unit, equipment,
inventory or other asset owned, leased or operated by the Borrower or any of its
Subsidiaries (including, without limitation, any surface water thereon or
adjacent thereto and soil and groundwater thereunder).
"REIT" shall mean a Real Estate Investment Trust (or REIT) as such term
is defined in the Code.
"Reportable Event" shall have the meaning set forth in Section 4043(b)
of ERISA.
"Request for Advance" shall mean any certificate signed by an
Authorized Signatory of the Borrower requesting an Advance hereunder which will
increase the aggregate amount of the Loans outstanding and the Swing Line Loans
outstanding, which certificate shall be denominated a "Request for Advance," and
shall be in substantially the form of Exhibit B-1 attached hereto. Each Request
for Advance shall, among other things, (a) specify the date of the Advance,
which shall be a Business Day, (b) specify the amount of the Advance and the use
of the proceeds thereof, (c) the type of the Advance, (d) with respect to LIBOR
Advances, the Interest Period selected by the Borrower, (e) state that there
shall not exist, on the date of the requested Advance and after giving effect
thereto, a Default or an Event of Default, (f) state that all conditions
precedent to the making of the Advance have been satisfied and (g) certify that
the aggregate amount of the Swing Line Loans and the Loans, together with the
requested Advance (or Swing Line Advance), does not exceed the Available
Commitment.
"Request for Swing Line Advance" shall mean any certificate signed by
an Authorized Signatory of the Borrower requesting a Swing Line Advance
hereunder which will increase the aggregate amount of the Swing Line Loans
outstanding, which certificate shall be denominated a "Request for Swing Line
Advance," and shall be in substantially the form of Exhibit B-2 attached hereto.
Each Request for Swing Line Advance shall, among other things, (a) specify the
date of the Swing Line Advance, which shall be a Business Day, (b) specify the
amount of the Swing Line Advance and certify that the use of the proceeds
thereof will be in compliance with the terms of the Loan Agreement, (c) state
that there shall not exist, on the date of the requested Swing Line Advance and
after giving effect thereto, a Default or an Event of Default, (d) state that
all conditions precedent to the making of the Swing Line Advance have been
satisfied and (e) certify that the aggregate amount of the
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Swing Line Loans and the Loans, together with the amount of the Swing Line
Advance, does not exceed the Available Commitment and the Available Swing Line
Commitment.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Senior Management" shall mean the Chairman and Chief Executive
Officer, President and Chief Operating Officer and Executive Vice President and
Chief Financial Officer of the Borrower.
"Solvent" shall mean, with respect to any Person on a particular date,
that on such date (i) the fair value of the property (tangible or intangible) of
such Person is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (ii) the amount that will be
required to pay the probable liabilities of such Person on its debts as they
become absolute and matured will not be greater than the fair salable value of
the assets of such Person at such time, (iii) such Person is able to realize
upon its assets and pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business, and (iv)
such Person is not engaged in a business or a transaction, and is not about to
engage in a business or a transaction, for which such Person's property would
constitute unreasonably small capital after giving due consideration to
prevailing practices in the industry in which such Person is engaged. In
computing the amount of any contingent liability at any time, it is intended
that such liability will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount that might
reasonably be expected to become an actual or matured liability.
"Subsidiary" shall mean, as applied to any Person, (a) any corporation
of which fifty percent (50%) or more of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which fifty percent (50%) or more of the outstanding partnership
interests is at the time owned by such Person, or by one or more Subsidiaries of
such Person, or by such Person and one or more Subsidiaries of such Person, and
(b) any entity (other than a corporation or a partnership) which is controlled
or capable of being controlled by such Person, or by one or more Subsidiaries of
such Person, or by such Person and one or more Subsidiaries of such Person.
"Subsidiary Guarantor" shall mean any Subsidiary of the Borrower which
has issued a Guarantee, in substantially the form of Exhibit C attached hereto,
with respect to the Obligations in favor of the Administrative Agent and the
Lenders.
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"Swing Line Advance" or "Swing Line Advances" shall mean amounts
advanced by the Swing Line Lender to the Borrower pursuant to Section 2.15
hereof on the occasion of any borrowing. Swing Line Advances may be in any
amount designated by the Borrower, provided that such amount is a whole dollar
amount.
"Swing Line Commitment" shall mean the obligation of the Swing Line
Lender to advance funds in the aggregate sum of up to $5,000,000 to the Borrower
pursuant to the terms hereof.
"Swing Line Lender" shall mean NationsBank, N.A.
"Swing Line Loans" shall mean the aggregate principal amount of all
Swing Line Advances.
"Swing Line Note" shall mean that certain promissory note in the
principal amount of $5,000,000 issued by the Borrower to the Swing Line Lender,
substantially in the form of Exhibit D attached hereto, any other swing line
note issued pursuant to this Agreement in respect of the Swing Line Commitment,
and any extensions, renewals or amendments to any of the foregoing.
"Total Assets" shall mean, as of any date, (a) the sum of (i) the
undepreciated book value of all real estate assets of the Borrower on a
consolidated basis and the percentage interest of the Borrower in the
undepreciated book value of any other real estate assets owned by an
Unconsolidated Entity plus (ii) the aggregate book value of all other assets of
the Borrower on a consolidated basis and the percentage interest of the Borrower
in the book value of any other assets owned by an Unconsolidated Entity,
determined in accordance with GAAP, less (b) the book value of all intangible
assets of the Borrower on a consolidated basis and the percentage interest of
the Borrower in any intangible assets owned by an Unconsolidated Entity,
determined in accordance with GAAP.
"Total Liabilities" shall mean, as of any date, the sum of (a) all
items shown as liabilities on the Borrower's consolidated balance sheet and
shall include, without limitation, all contingent liabilities (including but not
limited to Guaranties, deferred purchase price of property or services, and any
pre-sale obligations relating to the purchase of any real or personal property)
and all subordinated debt of the Borrower plus (b) the greater of (i) the
Borrower's recourse interest in an Unconsolidated Entity's debt, or (ii) pro
rata interest in all debt owed by an Unconsolidated Entity which is either
recourse or non-recourse to the Borrower or Unconsolidated Entity, as
applicable.
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"Total Secured Liabilities" shall mean, as of any date, Total
Liabilities which are secured in any manner by any Lien on any real property.
"Unconsolidated Entity" shall mean any Person in which the Borrower or
any Subsidiary Guarantor, directly or indirectly, has an ownership interest,
including, without limitation, any joint venture partnership in which the
Borrower is a joint venture partner, whose financial results are not
consolidated under GAAP with the financial results on the consolidated financial
statements of the Borrower.
"Unencumbered Real Estate Assets" shall mean the interest in real
property (excluding raw land) which is owned by the Borrower or any Subsidiary
Guarantor and which is not subject to any mortgage debt or security interests
and shall include, without limitation, all Borrower held mortgage note
receivables.
"Unsecured Senior Debt" shall mean the sum of (a) the Obligations and
(b) Indebtedness for Money Borrowed of the type permitted under Section 7.1(h)
hereof, exclusive of Indebtedness for Money Borrowed which is subordinated to
the Obligations on terms satisfactory to the Majority Banks and Indebtedness for
Money Borrowed which is secured by assets of the Borrower or any of its
Subsidiaries.
"Use" means use, ownership, development, construction, maintenance,
management, operation or occupancy.
"Value of Negative Pledge Property" shall mean, as of any calculation
date, the aggregate sum of the NOI for all Negative Pledge Properties as of the
last day of the most recently completed fiscal quarter (or fiscal year), for the
twelve (12) consecutive months immediately preceding such last day of the most
recently completed fiscal quarter (or fiscal year) capitalized at a rate of ten
percent (10%).
"Value of Unencumbered Real Estate Assets" shall mean, as of any
calculation date, the sum of (a) the NOI for all Unencumbered Real Estate Assets
(other than property held for sale and mortgage note receivables) as of the last
day of the most recently completed fiscal quarter (or fiscal year), for the
twelve (12) consecutive months immediately preceding such date capitalized at a
rate of ten percent (10%), (b) the Net Book Value of property of the Borrower or
any Subsidiary Guarantor held for sale, and (c) the carrying value (as set forth
on the Borrower's most recent financial statement) of all mortgage note
receivables held by the Borrower or any Subsidiary Guarantor.
Each definition of an agreement in this Article 1 shall include such
agreement as modified, amended, or supplemented from time to time with the prior
written consent of the
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Majority Banks, except as provided in Section 11.12 hereof, and except where the
context otherwise requires, definitions imparting the singular shall include the
plural and vice versa. Except where otherwise specifically restricted, reference
to a party to a Loan Document includes that party and its successors and
assigns. All terms used herein which are defined in Article 9 of the Uniform
Commercial Code in effect in the State of Georgia on the date hereof and which
are not otherwise defined herein shall have the same meanings herein as set
forth therein.
All accounting terms used herein without definition shall be used as
defined under GAAP.
ARTICLE 2 - Loans.
Section 2.1 The Loans.
(a) Loans by the Banks. Subject to the terms and conditions of this
Agreement, the Banks agree, severally in accordance with their Commitment
Ratios, and not jointly, upon the terms and subject to the conditions of this
Agreement, to lend and relend to the Borrower, prior to the Maturity Date,
amounts which in the aggregate at any one time outstanding do not exceed the
Available Commitment.
(b) Swing Line Loans by the Swing Line Lender. Subject to the terms and
conditions of this Agreement, the Swing Line Lender agrees upon the terms and
subject to the conditions of this Agreement to lend and relend to the Borrower,
prior to the Maturity Date, Swing Line Advances which in the aggregate at any
one time outstanding do not exceed the Available Swing Line Commitment.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at the
option of the Borrower, be made as a Prime Rate Advance or a LIBOR Advance;
provided, however, that (i) if the Borrower fails to give the Administrative
Agent written notice specifying whether an Advance is to be repaid or reborrowed
on the last day of the applicable Interest Period, such Advance shall be repaid
and then reborrowed as a Prime Rate Advance on the last day of the applicable
Interest Period and (ii) the Borrower may not select a LIBOR Advance if, at the
time of such selection, a Default has occurred and is continuing. LIBOR Advances
shall in all cases be subject to Section 2.3(e) and Article 10 hereof. Any
notice given to the Administrative Agent in connection with a requested Advance
hereunder or a requested adjustment of an Interest Rate Basis hereunder shall be
given to the Administrative Agent
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prior to 11:00 a.m. (Eastern time) on a Business Day in order for such Business
Day to count toward the minimum number of Business Days required.
(b) Prime Rate Advances.
(i) Initial Advances. The Borrower, prior to
11:00 a.m. (Eastern Time) on the Business Day immediately preceding the date of
the advance, shall give to the Administrative Agent in the case of Prime Rate
Advances an irrevocable written notice in the form of a Request for Advance, or
notice by telecopy followed immediately by a Request for Advance; provided,
however, that the failure by the Borrower to confirm any notice by telecopy with
a Request for Advance shall not invalidate any notice so given.
(ii) Repayments and Interest Rate Adjustments.
Upon irrevocable prior written notice delivered to the Administrative Agent
prior to 11:00 a.m. (Eastern Time) (A) on the day of payment under this
subsection, the Borrower may repay a Prime Rate Advance without regard to its
Payment Date, or (B) at least three (3) Business Days prior to the date of any
Interest Rate Basis adjustment, the Borrower may request that the Administrative
Agent reset the Interest Rate Basis to the LIBOR Basis for all or any portion of
a Prime Rate Advance without regard to its Payment Date. The determination of
any LIBOR Basis hereunder shall be made in accordance with Section 2.2(c)
hereof. Upon the effective date of an Interest Rate Basis adjustment hereunder,
that portion of the Prime Rate Advance so adjusted shall be treated for all
purposes hereunder as a LIBOR Advance.
(c) LIBOR Advances.
(i) Initial Advances. The Borrower shall give
the Administrative Agent in the case of LIBOR Advances at least (A) three (3)
Business Days irrevocable verbal notice, and (B) two (2) Business Days
irrevocable written notice in the form of a Request for Advance, or notice by
telecopy followed immediately by a Request for Advance; provided, however, that
the failure of the Borrower to confirm any notice by telecopy with a Request for
Advance shall not invalidate any notice so given. The Administrative Agent,
whose determination shall be conclusive, shall determine the available LIBOR
Bases and shall notify the Borrower of such LIBOR Bases. The Borrower shall
promptly notify the Administrative Agent by telecopy or by telephone, and shall
immediately confirm any such telephonic notice in writing, of its selection of a
LIBOR Basis and the Interest Period for such Advance or Borrower's decision not
to borrow a LIBOR Advance or have the Interest Rate Basis adjusted, as the case
may be.
(ii) Repayments and Interest Rate Adjustment. At
least three (3) Business Days prior to the last day of the applicable Interest
Period for a LIBOR Advance,
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the Borrower shall give the Administrative Agent written notice specifying
whether all or a portion of any LIBOR Advance outstanding on the last day of the
applicable Interest Period (i) is to have the LIBOR Basis reset to a new LIBOR
Basis for an additional period, (ii) is to have the LIBOR Basis reset to the
Prime Rate Basis, or (iii) is to be repaid and not reborrowed. Upon the last day
of the applicable Interest Period such LIBOR Advance will, subject to the
provisions hereof, be so repaid or, as applicable, shall be treated for all
purposes hereunder as a LIBOR Advance (having an Interest Period and LIBOR Basis
selected in accordance with Section 2.2(c)(i) hereof) or a Prime Rate Advance.
(d) Notification of Banks. Upon receipt of a Request for
Advance or notice by telephone or telecopy, the Administrative Agent shall
promptly (and with respect to LIBOR Advances, not less than two (2) Business
Days prior to the date of such Advance) notify each Bank by telephone or
telecopy of the contents thereof and the amount of such Bank's portion of the
applicable Advance. Each Bank shall, not later than 12:00 noon (Eastern time) on
the date specified in such notice, make available to the Administrative Agent at
the Administrative Agent's Office, or at such account as the Administrative
Agent shall designate, the amount of its portion of the applicable Advance in
immediately available funds.
(e) Disbursement.
(i) Prior to 2:00 p.m. (Eastern time) on the
date of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in this Section 2.2 and in Article 3
hereof, disburse the amounts made available to the Administrative Agent by the
Banks in immediately available funds by crediting the amounts so made available
to the account of the Borrower maintained with the Administrative Agent or an
affiliate of the Administrative Agent.
(ii) Unless the Administrative Agent shall have
received notice from a Bank prior to the date of any Advance that such Bank will
not make available to the Administrative Agent such Bank's ratable portion of
such Advance, and so long as notice has been given as provided in Section 2.2
hereof, the Administrative Agent may assume that such Bank has made such portion
available to the Administrative Agent on the date of such Advance and the
Administrative Agent may, in its sole discretion and in reliance upon such
assumption, without any obligation hereunder to do so, make available to the
Borrower on such date a corresponding amount. If and to the extent such Bank
shall not have so made such ratable portion available to the Administrative
Agent, such Bank agrees to repay to the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent for the first two (2) days that such
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amount is not repaid, at the Overnight Federal Funds Rate, and, thereafter, at
the Overnight Federal Funds Rate plus four percent (4%).
(iii) If such Bank shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Bank's portion of the applicable Advance for purposes of this
Agreement. If such Bank does not repay such corresponding amount immediately
upon the Administrative Agent's demand therefor, the Administrative Agent shall
notify the Borrower, and the Borrower shall pay such corresponding amount to the
Administrative Agent, together with all interest accrued thereon and on the same
terms and conditions that would have applied to such Advance had such Bank
funded its portion thereof. The failure of any Bank to fund its portion of any
Advance shall not relieve any other Bank of its obligation, if any, hereunder to
fund its respective portion of the Advance on the date of such borrowing, but no
Bank shall be responsible for any such failure of any other Bank.
(iv) In the event that, at any time when the
Borrower is not in Default, a Bank for any reason fails or refuses to fund its
portion of an Advance, then, until such time as such Bank has funded its portion
of such Advance, or all other Banks have received payment in full (whether by
repayment or prepayment) of the principal and interest due in respect of such
Advance, such non-funding Bank shall (i) have no right to vote regarding any
issue on which voting is required or advisable under this Agreement or any other
Loan Document, and (ii) not be entitled to receive payments of principal,
interest or fees from the Borrower in respect of such Advances which such Bank
failed to make. The provisions of this Section 2.2(e) will not impact upon any
remedies of the Borrower with respect to any Bank which fails to fund an Advance
hereunder at a time when the Borrower is otherwise in compliance with this
Agreement.
Section 2.3 Interest.
(a) On Prime Rate Advances. Interest on each Prime Rate
Advance shall be computed on the basis of a 360-day year for the actual number
of days elapsed and shall be payable at the Prime Rate Basis for such Advance in
arrears on each Payment Date. Interest on Prime Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance
shall be computed on the basis of a 360-day year for the actual number of days
elapsed and shall be payable at the LIBOR Basis for such Advance in arrears on
each Payment Date without
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regard to the duration of any Interest Period. Interest on LIBOR Advances then
outstanding shall also be due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate
Basis. If the Borrower fails to give the Administrative Agent timely notice of
its selection of a LIBOR Basis or if for any reason (other than the gross
negligence or willful misconduct of the Administrative Agent) a determination of
a LIBOR Basis for any Advance is not timely concluded, the Prime Rate Basis
shall apply to such Advance.
(d) Upon Default. Upon the occurrence and during the
continuance of an Event of Default, the Majority Banks shall have the option
(but shall not be required to give prior notice thereof to the Borrower, to
accelerate the maturity of the Loans, or to exercise any other rights or
remedies hereunder in connection with the exercise of this right) to charge
interest on the outstanding principal balance of the Loans at the Default Rate
from the date of such Event of Default. Such interest shall be payable on the
earlier of DEMAND or the Maturity Date and shall accrue until the earlier of (i)
waiver or cure (to the satisfaction of the Majority Banks) of the applicable
Event of Default, (ii) agreement by the Majority Banks to rescind the charging
of interest at the Default Rate, or (iii) payment in full of the Obligations.
(e) LIBOR Advances. At no time may the number of
outstanding LIBOR Advances exceed six (6).
Section 2.4 Fees and Commissions.
(a) Commitment Fee. [Reserved]
(b) Utilization Fee. The Borrower agrees to pay to the
Administrative Agent for the benefit of the Banks, in accordance with their
respective Commitment Ratios, a utilization fee on the actual daily unborrowed
amount which is (i) the lesser of (A) the Commitment and (B) the Availability
Restriction minus (ii) the Loans and the Swing Line Loans then outstanding for
each day from July 1, 1998 through the Maturity Date, at a rate of (X)
twenty-five one-hundredths of one percent (.25%) per annum for each day that
such unborrowed amounts are greater than or equal to fifty percent (50%) of the
lesser of (1) the Commitment and (2) the Availability Restriction and (Y)
fifteen one-hundredths of one percent (.15%) per annum for each day that such
unborrowed amounts are less than fifty percent (50%) of the lesser of (1) the
Commitment and (2) the Availability Restriction. Such utilization fee shall be
computed on the basis of a year of 365/366 days for the actual number of days
elapsed, shall be payable quarterly in arrears on the first day of each calendar
quarter, commencing on October 1, 1998 (for the period from and including July
1, 1998 through September 30, 1998), and if then unpaid, on the Maturity Date,
and shall be fully earned when due and nonrefundable when paid.
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(c) Extension Fee. The Borrower agrees to pay to the
Administrative Agent for the benefit of the Banks, in accordance with their
respective Commitment Ratios, an extension fee in the amount of one-eighth of
one percent (1/8%) times the Commitment. Such extension fee shall be due and
payable on the effective date of any extension granted hereunder and shall be
fully earned when due and non-refundable when paid.
(d) Late Payment Charge. If the Borrower fails to make
any payment of principal, interest or fees hereunder as and when due, the
Borrower shall pay to the Administrative Agent for the ratable benefit of the
Banks or the Swing Line Lender, as the case may be, a late charge in an amount
equal to four percent (4%) of the amount of such delinquent payment.
Section 2.5 Reduction of Commitment. The Borrower shall have the right,
at any time and from time to time after the Agreement Date and prior to the
Maturity Date, upon at least three (3) Business Days' prior written notice to
the Administrative Agent, without premium or penalty, to cancel or reduce
permanently all or a portion of the Commitment, on a pro rata basis among the
Banks, provided that any such partial reduction shall be made in an amount not
less than $10,000,000 and in integral multiples of not less than $1,000,000. As
of the date of cancellation or reduction set forth in such notice, the
Commitment shall be permanently reduced to the amount stated in the Borrower's
notice for all purposes herein, and the Borrower shall, subject to Section 2.11
hereof, pay to the Administrative Agent for the account of the Banks the amount
necessary to reduce the principal amount of the Loans then outstanding under the
Commitment to not more than the amount of the Commitment as so reduced, and, if
such amount is a payment in full of the Loans, together with accrued interest on
the amount so prepaid.
Section 2.6 Prepayment. LIBOR Advances may be prepaid prior to the
applicable Payment Date, upon three (3) Business Day's prior written notice to
the Administrative Agent, provided that the Borrower, in the event of prepayment
for any reason, shall reimburse the Banks and the Administrative Agent, on the
earlier of demand or the Maturity Date, for any loss or out-of-pocket expense
incurred by the Banks or the Administrative Agent in connection with such
prepayment, as set forth in Section 2.11. Any notice of prepayment shall be
irrevocable and all amounts prepaid on the Loans shall be applied first to
interest and fees and other amounts due and payable hereunder, and then to
principal. Partial prepayments of LIBOR Advances shall be in a principal amount
of not less than $100,000 and in an integral multiple of $100,000.
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Section 2.7 Repayment.
(a) Loans Exceeding Commitment. If, at any time, the
aggregate amount of the Loans and the Swing Line Loans then outstanding shall
exceed the lesser of (i) the Commitment and (ii) the Availability Restriction,
the Borrower shall make a repayment of the principal amount of the Loans and the
Swing Line Loans in an amount equal to such excess (which payment shall be
applied first to the Swing Line Loans then outstanding). If, at any time, the
aggregate amount of the Swing Line Loans then outstanding shall exceed the
lesser of (x) the Swing Line Commitment and (y) the Lender's Available
Commitment for the Swing Line Lender minus the Bank Loans Outstanding for the
Swing Line Lender, the Borrower shall make a repayment of the principal amount
of the Swing Line Loans in an amount equal to such excess (which repayment may,
in accordance with the terms hereof, be by way of an Advance in accordance with
Section 2.15 hereof).
(b) Maturity. In addition to the foregoing, a final
payment of all Obligations then outstanding shall be due and payable on the
Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein, and shall be evidenced by the Notes. One
of the Notes shall be payable to the order of each Bank in accordance with the
respective Commitment Ratio of the Bank. The Notes shall be issued by the
Borrower to each of the Banks and shall be duly executed and delivered by
Authorized Signatories.
(b) Each Bank may open and maintain on its books in the
name of the Borrower a loan account with respect to the Loans and interest
thereon. Each Bank which opens such loan account or accounts shall debit the
applicable loan account for the principal amount of each Advance made by it and
accrued interest thereon, and shall credit such loan account for each payment on
account of principal of or interest on the Loans. The records of each Bank with
respect to the accounts maintained by it shall be prima facie evidence of the
Loans and accrued interest thereon, but the failure to maintain such records
shall not impair the obligation of the Borrower to repay Indebtedness hereunder.
(c) Each Advance from the Banks under this Agreement
shall be made pro rata on the basis of their respective Commitment Ratios.
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Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the
Borrower on account of the principal of or interest on its Loans, fees, and any
other amount owed to the Banks or the Administrative Agent under this Agreement,
the Notes, or the other Loan Documents shall be made not later than 12:00 noon
(Eastern time) on the date specified for payment under this Agreement or such
other Loan Document to the Administrative Agent to an account designated by the
Administrative Agent, for the account of the Banks or the Administrative Agent,
as the case may be, in lawful money of the United States of America in
immediately available funds. Any payment received by the Administrative Agent
after 12:00 noon (Eastern time) shall be deemed received on the next Business
Day for purposes of interest accrual. In the case of a payment for the account
of a Bank, the Administrative Agent will promptly thereafter distribute the
amount so received in like funds to such Bank. In the event that the
Administrative Agent does not promptly distribute such amounts, the
Administrative Agent shall pay interest on such amounts to the Banks at the
Overnight Federal Funds Rate until such amounts are distributed. If the
Administrative Agent shall not have received any payment from the Borrower as
and when due, the Administrative Agent will promptly notify the Banks
accordingly and the Administrative Agent shall not be obligated to make any
distributions under this Section 2.9.
(b) If any payment under this Agreement or any of the
Notes shall be specified to be made upon a day which is not a Business Day, it
shall be made on the next succeeding day which is a Business Day, and such
extension of time shall in such case be included in computing interest and fees,
if any, in connection with such payment.
(c) The Borrower agrees to pay principal, interest, fees,
and all other amounts due hereunder or under the Notes without set-off or
counterclaim or any deduction whatsoever.
(d) If the Borrower is required by Applicable Law to
deduct any taxes from or in respect of any sum payable to the Administrative
Agent or any Bank hereunder, under any Note or under any other Loan Document:
(i) the sum payable hereunder or thereunder, as applicable, shall be increased
to the extent necessary to provide that, after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.9(d)), the Administrative Agent or such Bank, as applicable, receives an
amount equal to the sum it would have received had no such deductions been made;
(ii) the Borrower shall make such deductions from such sums payable hereunder or
thereunder, as applicable, and pay the amount so deducted to the relevant taxing
authority as required by Applicable Law; and (iii) the Borrower shall provide
the Administrative Agent or such Bank, as applicable, with evidence satisfactory
to the Administrative Agent or such Bank, as
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applicable, that such deducted amounts have been paid to the relevant taxing
authority. Before making any such deductions, such Bank shall designate a
different lending office and shall take such alternative courses of action if
such designation or alternative courses of action will avoid the need for such
deductions and will not in the good faith judgment of such Bank be otherwise
disadvantageous to such Bank.
Section 2.10 Application of Payments. Payments made to the
Administrative Agent, the Swing Line Lender or the Banks, or any of them, or
otherwise received by the Administrative Agent, the Swing Line Lender or the
Banks, or any of them (from realization on collateral for the Obligations or
otherwise), shall be distributed (subject to Section 2.2(e) hereof) as follows:
First, to the costs and expenses, if any, incurred by the Administrative Agent,
the Swing Line Lender or the Banks, or any of them, to the extent permitted by
Section 11.2 hereof in the collection of such amounts under this Agreement or
any of the other Loan Documents, including, without limitation, any reasonable
costs incurred in connection with the sale or disposition of any collateral for
the Obligations; Second, pro rata among the Administrative Agent, the Swing Line
Lender and the Banks based on the total amount of fees then due and payable
hereunder or under any other Loan Document and to any other fees and commissions
then due and payable by the Borrower to the Banks, the Swing Line Lender and the
Administrative Agent under this Agreement or any Loan Document; Third, to any
unpaid interest of the Borrower which may have accrued (i) first on the Swing
Line Loans and (ii) thereafter on the Loans, pro rata among the Banks based on
the outstanding principal amount of the Loans of the Borrower outstanding
immediately prior to such payment; Fourth, to the Swing Line Lender, to any
unpaid principal of the Swing Line Loans then outstanding; Fifth, pro rata among
the Banks based on the outstanding principal amount of the Loans of the Borrower
outstanding immediately prior to such payment, to any unpaid principal of the
Loans; Sixth, to any other Obligations not otherwise referred to in this Section
2.10 until all such Obligations are paid in full; Seventh, to damages incurred
by the Administrative Agent, the Swing Line Lender or the Banks, or any of them,
by reason of any breach hereof or of any other Loan Documents; and Eighth, upon
satisfaction in full of all Obligations, to the Borrower or as otherwise
required by law. If any Bank shall obtain any payment (whether involuntary or
otherwise) on account of the Loans made by it in excess of its ratable share of
the Loans then outstanding and such Bank's share of any expenses, fees and other
items due and payable to it hereunder, such Bank shall forthwith purchase a
participation in the Loans from the other Banks as shall be necessary to cause
such purchasing Bank to share the excess payment ratably based on the Commitment
Ratios with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such purchase
from each Bank shall be rescinded and such Bank shall repay to the purchasing
Bank the purchase price to the extent of such recovery. The Borrower agrees that
any Bank so purchasing a participation from another Bank pursuant to this
Section may, to the fullest extent permitted by law,
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exercise all its rights of payment with respect to such participation as fully
as if such Bank were the direct creditor of the Borrower in the amount of such
participation so long as the Borrower's Obligations are not increased. If the
Swing Line Lender shall obtain any payment (whether involuntary or otherwise) on
account of the Swing Line Loans made by it in excess of the Swing Line Loans
then outstanding and the Swing Line Lender's share of any expenses, fees and
other items due and payable to it hereunder, the Swing Line Lender shall
forthwith return such excess payment to the Administrative Agent for
distribution among the Banks based on the provisions of this Section.
Section 2.11 Reimbursement.
(a) Whenever any Bank shall sustain or incur any losses
or out-of-pocket expenses in connection with the repayment of a LIBOR Advance
prior to the end of the Interest Period for such Advance or failure by the
Borrower to borrow any LIBOR Advance after having given notice of its intention
to borrow in accordance with Section 2.2 hereof (whether by reason of the
election of the Borrower not to proceed or the non-fulfillment of any of the
conditions set forth in Article 3), the Borrower agrees to pay to such Bank,
upon the earlier of such Bank's demand or the Maturity Date, an amount
sufficient to compensate such Bank for all such losses. The amount of such
losses, absent manifest error, shall be binding and conclusive. Upon request of
the Borrower, such Bank shall provide a certificate setting forth the amount to
be paid to it by the Borrower hereunder and calculations therefor.
(b) Losses subject to reimbursement hereunder shall
include, without limiting the generality of the foregoing, any lost profit of
any Bank or any participant of such Bank over the remainder of the Interest
Period for such prepaid Advance.
Section 2.12 Capital Adequacy. If after the date hereof, any Bank
or the Swing Line Lender shall have determined that the adoption of any
Applicable Law regulating United States banks and regarding the capital adequacy
of banks or bank holding companies, or any change therein, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency of the U.S. charged with the interpretation or
administration thereof, or compliance by the Bank or the Swing Line Lender with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such Governmental Authority, central bank or comparable
agency, has the effect of reducing the rate of return on such Bank's or the
Swing Line Lender's capital as a consequence of its obligations hereunder to a
level below that which it could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's or the Swing Line Lender's
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Bank's or the Swing Line Lender's
capital was fully utilized prior to such adoption, change or compliance) by a
material
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amount, then, upon the earlier of demand by such Bank or the Swing Line Lender
or the Maturity Date, the Borrower agrees to pay immediately to such Bank or the
Swing Line Lender, as the case may be, such additional amounts as shall be
sufficient to compensate such Bank or the Swing Line Lender for such reduced
return beginning as of the date of written notice to the Borrower described
above, together with interest on such amount from the fourth (4th) day after the
date of demand or the Maturity Date, as applicable, until payment in full
thereof at the Default Rate. A certificate of such Bank or the Swing Line
Lender, as the case may be, setting forth the amount to be paid to such Bank or
the Swing Line Lender by the Borrower as a result of any event referred to in
this paragraph shall, absent manifest error, be conclusive. Each Bank and the
Swing Line Lender agree that if any amount or any portion of any amount
described in this Section is subsequently recovered by such Bank or the Swing
Line Lender, such Bank and the Swing Line Lender, as the case may be, shall
promptly reimburse the Borrower to the extent of the amount so recovered. A
certificate of such Bank or the Swing Line Lender, as the case may be, setting
forth the amount of such recovery and the basis therefor shall be provided to
the Borrower.
Section 2.13 Bank Tax Forms. On or prior to the Agreement Date and
on or prior to the first Business Day of each calendar year thereafter, each
Bank which is organized in a jurisdiction other than the United States shall
provide each of the Administrative Agent and the Borrower with properly executed
originals of Forms 4224 or 1001 (or any successor form) prescribed by the
Internal Revenue Service or other documents satisfactory to the Borrower and the
Administrative Agent, and each such Bank shall provide properly executed
Internal Revenue Service Forms W-8 or W-9, as the case may be, certifying (i) as
to such Bank's status for purposes of determining exemption from United States
withholding taxes with respect to all payments to be made to such Bank hereunder
and under the Notes or (ii) that all payments to be made to such Bank hereunder
and under the Notes are subject to such taxes at a rate reduced to zero by an
applicable tax treaty. Each such Bank agrees to provide the Administrative Agent
and the Borrower with new forms prescribed by the Internal Revenue Service upon
the expiration or obsolescence of any previously delivered form, or after the
occurrence of any event requiring a change in the most recent forms delivered by
it to the Administrative Agent and the Borrower.
Section 2.14 Extension of the Maturity Date. Not later than June
30th of each year, the Borrower may request that the Administrative Agent, the
Swing Line Lender and the Banks extend the Maturity Date for an additional
twelve (12) month period beyond the existing Maturity Date. Any decision to
extend the Maturity Date shall be in the sole and absolute discretion of the
Administrative Agent, the Swing Line Lender and the Banks and shall be evidenced
in a writing executed by each of them, as appropriate. The failure of any such
Person to respond to a request for such extension within sixty (60) days of such
request shall be presumed to be a decision not to so extend the Maturity Date.
Upon any agreement
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by the Administrative Agent and all of the Banks to extend the Maturity Date as
described in this Section, the term "Maturity Date" set forth in Article 1
hereof shall thereafter be the anniversary of the Maturity Date previously in
effect hereunder (or such earlier date as payment of the Loans shall be due,
whether by acceleration or otherwise). Any such extension granted hereunder
shall be conditioned upon the receipt by the Banks of the Extension Fee
referenced in Section 2.4(c) hereof. Extension of the Maturity Date with respect
to the Swing Line Loans shall be at the sole and absolute discretion of the
Swing Line Lender and shall be evidenced in a writing as described above in this
Section 2.14.
Section 2.15 Swing Line Loans.
(a) Swing Line Advances. The Borrower, prior to 12:00
p.m. (noon) (Eastern time) on the Business Day of funding any Swing Line
Advance, shall give to the Swing Line Lender an irrevocable written notice in
the form of a Request for Swing Line Advance, or notice by telecopy followed
immediately by a Request for Swing Line Advance; provided, however, that the
failure by the Borrower to confirm any notice by telecopy with a Request for
Swing Line Advance shall not invalidate any notice so given; provided further
that in no case will the Swing Line Lender be required to fund such Request for
Swing Line Advance under the Swing Line Commitment if such funding would
increase the aggregate Swing Line Loans to an amount in excess of the Available
Swing Line Commitment or if aggregate amounts of all Loans and Swing Line Loans
outstanding exceed the lesser of the Commitment or the Availability Restriction.
(b) Prepayment and Repayment.
(i) Upon irrevocable prior written notice
delivered to the Swing Line Lender prior to 12:00 p.m. (noon) (Eastern time) on
the day of payment under this Section, the Borrower may repay a Swing Line
Advance. In addition, upon demand of the Swing Line Lender, if such demand is
delivered prior to 11:00 a.m. (Eastern time) on a Business Day, the Borrower
shall on the following Business Day make a repayment of the Swing Line Loans
then outstanding in the amount so requested by the Swing Line Lender; provided,
however, that if such demand is delivered to the Borrower at or after 11:00 a.m.
(Eastern time) on a Business Day, the Borrower shall on the second Business Day
following receipt of such demand make such repayment. In order to facilitate
repayment of the Swing Line Loans, the Borrower hereby irrevocably requests the
Banks, and the Banks hereby severally agree, on the terms and conditions of this
Agreement (other than as provided in Article 2 hereof with respect to the
amounts of, the time of requests for, and the repayment of Advances hereunder
and in Article 3 hereof with respect to conditions precedent to Advances
hereunder), with respect to Swing Line Loans outstanding, upon request of the
Swing Line Lender or the Borrower (including without limitation after any
Default or Event of Default,
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but prior to the occurrence of an event described in clauses (g) or (h) of
Section 8.1 hereof), to make an Advance to the Borrower in the amount of such
outstandings, and to pay the proceeds of such Advance directly to the
Administrative Agent to reimburse the Swing Line Lender for the amount of the
Swing Line Loans then outstanding. Each Bank shall pay its share of such Advance
by paying its portion of such Advance to the Administrative Agent in accordance
with Section 2.2(e) hereof and its Commitment Ratio, without reduction for any
set-off or counterclaim of any nature whatsoever and regardless of whether any
Default or Event of Default (other than with respect to an event described in
clauses (g) or (h) of Section 8.1 hereof) then exists or would be caused
thereby. If at any time that the Swing Line Loans are outstanding, any of the
events described in clauses (g) or (h) of Section 8.1 hereof shall have occurred
and be continuing, then each Bank shall, automatically upon the occurrence of
any such event and without any action on the part of the Swing Line Lender, the
Borrower, the Administrative Agent or the Banks, be deemed to have purchased an
undivided participation in the then outstanding principal amount of the Swing
Line Loans then outstanding in an amount equal to such Bank's Commitment Ratio,
and each Bank shall, notwithstanding such Event of Default, immediately pay to
the Administrative Agent for the account of the Swing Line Lender, in
immediately available funds, the amount of such Bank's participation (and the
Swing Line Lender shall deliver to such Bank a written confirmation of such loan
participation dated the date of the occurrence of such event and in the amount
of such Bank's Commitment Ratio).
(ii) If any payment under this Agreement or the
Swing Line Note shall be specified to be made upon a day which is not a Business
Day, it shall be made on the next succeeding day which is a Business Day, and
such extension of time shall in such case be included in computing interest and
fees, if any, in connection with such payment.
(iii) The Borrower agrees to pay principal,
interest, fees, and all other amounts due hereunder or under the Swing Line Note
without set-off or counterclaim or any deduction whatsoever.
(iv) If the Borrower is required by Applicable
Law to deduct any taxes from or in respect of any sum payable to the Swing Line
Lender hereunder, under the Swing Line Note or under any other Loan Document:
(i) the sum payable hereunder or thereunder, as applicable, shall be increased
to the extent necessary to provide that, after making all required deductions
(including deductions applicable to additional sums payable under this Section
2.15(e)), the Swing Line Lender receives an amount equal to the sum it would
have received had no such deductions been made; (ii) the Borrower shall make
such deductions from such sums payable hereunder or thereunder, as applicable,
and pay the amount so deducted to the relevant taxing authority as required by
Applicable Law; and (iii) the Borrower shall provide the Swing Line Lender with
evidence satisfactory to the Swing
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Line Lender that such deducted amounts have been paid to the relevant taxing
authority. Before making any such deductions, the Swing Line Lender shall
designate a different lending office and shall take such alternative courses of
action if such designation or alternative courses of action will avoid the need
for such deductions and will not in the good faith judgment of the Swing Line
Lender be otherwise disadvantageous to the Swing Line Lender.
(c) Interest and Payments on Swing Line Advances. Interest on each
Swing Line Advance shall be computed in the same manner and shall be payable on
the same terms as interest on each Prime Rate Advance; provided, however, that
Swing Line Advances may be repaid without notice (and payments received after
12:00 noon eastern time will be deemed received on the next Business Day).
(d) Amendment to Section 2.15. Notwithstanding anything to the
contrary contained herein, the parties hereto hereby agree that the provisions
of this Section 2.15 may be modified or waived only by a writing signed by the
Borrower, the Administrative Agent and the Swing Line Lender and that the terms
"Swing Line Commitment" and "Available Swing Line Commitment" may only be
modified or amended by a writing signed by the Borrower, the Swing Line Lender
and the Majority Banks.
ARTICLE 3 - Conditions Precedent.
Section 3.1 Conditions Precedent to Effectiveness. The
effectiveness of this Agreement is subject to the prior fulfillment of each of
the following conditions:
(a) The Administrative Agent shall have received each of
the following, in form and substance satisfactory to the Banks:
(i) duly executed Notes;
(ii) the loan certificate of the Borrower, including
a certificate of incumbency with respect to each Authorized Signatory
of the Borrower, which shall be in substantially the form attached hereto as
Exhibit F hereto, together with appropriate attachments which shall include
without limitation, the following items: (A) a copy of the Certificate or
Articles of Incorporation of the Borrower, certified to be true, complete and
correct by the appropriate Secretary of State, (B) a true, complete and correct
copy of the By-Laws of the Borrower, as in effect on the date hereof, (C) a
true, complete and correct copy of the resolutions of the Borrower authorizing
it to execute, deliver and perform this Agreement and the other Loan Documents
to which it is party and (D) certificates of good
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standing for the Borrower issued by the Secretary of State or similar state
official for the state of incorporation of the Borrower and for each state in
which the Borrower is qualified to do business;
(iii) receipt by the Administrative Agent and the
Banks of all appropriate fees to be paid to them by the Borrower on or prior to
the Agreement Date;
(iv) any required consents to the closing of this
Agreement or to the execution, delivery and performance of this Agreement and
the other Loan Documents, each of which shall be in form and substance
satisfactory to the Administrative Agent and the Banks;
(v) pay off letters and duly executed UCC-3
releases and other forms of satisfaction terminating any Liens (other than
Permitted Liens), if any, on the Negative Pledge Properties; and
(vi) all such other documents as the
Administrative Agent may reasonably request, certified by an appropriate
governmental official or Authorized Signatory if so requested.
(b) The Administrative Agent shall have received evidence
satisfactory to it that all material Necessary Authorizations, including all
necessary consents to the closing of this Agreement, have been obtained or made,
are in full force and effect and are not subject to any pending or, to the
knowledge of the Borrower, threatened reversal or cancellation, and the
Administrative Agent shall have received a certificate of an Authorized
Signatory so stating.
(c) The Borrower shall certify to the Administrative
Agent and the Banks that each of the representations and warranties in Article 4
hereof are true and correct in all material respects as of the Agreement Date
and that no Default then exists or is continuing.
Section 3.2 Conditions Precedent to Each Advance. The obligation
of each Bank to make each Advance, including the initial Advance hereunder, and
the Swing Line Lender to make a Swing Line Advance is subject to the fulfillment
of each of the following conditions immediately prior to or contemporaneously
with such Advance or Swing Line Advance:
(a) All of the representations and warranties of the
Borrower under this Agreement, which, in accordance with Section 4.2 hereof, are
made at and as of the time of the Advance or Swing Line Advance, as the case may
be, shall be true and correct in all
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material respects at such time, both before and after giving effect to the
application of the proceeds of the Advance or the Swing Line Advance;
(b) The incumbency of the Authorized Signatories shall be
as stated in the applicable certificate of incumbency contained in the
certificate of the Borrower delivered pursuant to Section 3.1(a) hereof or as
subsequently modified and reflected in a certificate of incumbency delivered to
the Administrative Agent and the Banks and, in the case of a Swing Line Advance,
to the Swing Line Lender;
(c) There shall not exist, on the date of the making of
the Advance or the Swing Line Advance, as the case may be, and after giving
effect thereto, a Default or an Event of Default hereunder, and the
Administrative Agent shall have received a Request for Advance so certifying;
and
(d) The Administrative Agent shall have received all such
other certificates, reports, statements, opinions of counsel or other documents
as they may reasonably request.
ARTICLE 4 - Representations and Warranties.
Section 4.1 Representations and Warranties. The Borrower hereby
agrees, represents, and warrants that:
(a) Organization; Ownership; Power; Qualification;
Capitalization. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Georgia. Each of the
Borrower and each of its Subsidiaries has the corporate power and authority to
own its properties and to carry on its business as now being and hereafter
proposed to be conducted. Each of the Borrower and each of its Subsidiaries is
duly qualified, in good standing and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
businesses requires such qualification or authorization.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it to
borrow hereunder, to execute, deliver and perform this Agreement and each of the
other Loan Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby. This
Agreement has been duly executed and delivered by the Borrower and is, and each
of the other Loan Documents to which the Borrower is party is, a legal, valid
and binding obligation of the Borrower enforceable in accordance with its
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terms, subject, as to enforcement of remedies, to the following qualifications:
(i) an order of specific performance and an injunction are discretionary
remedies and, in particular, may not be available where damages are considered
an adequate remedy at law, and (ii) enforcement may be limited by bankruptcy,
insolvency, liquidation, reorganization, reconstruction and other similar laws
affecting enforcement of creditors' rights generally (insofar as any such law
relates to the bankruptcy, insolvency or similar event of the Borrower).
(c) Subsidiaries. The Borrower has no Subsidiaries except
for IRT Management Company, a Georgia corporation; VW Mall, Inc., a Georgia
corporation; IRT Capital Corporation, a Georgia corporation; IRT Alabama, Inc.,
an Alabama corporation; and IRT Partners L.P., a Georgia limited partnership.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement and each of the other Loan
Documents to which it is party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent or
approval not already obtained, (ii) violate any Applicable Law respecting the
Borrower or any of its Subsidiaries, (iii) conflict with, result in a breach of,
or constitute a default under the certificate or articles of incorporation or
by-laws, as amended, of the Borrower or any of its Subsidiaries, or under any
indenture, agreement, or other instrument to which the Borrower or any of its
Subsidiaries is a party or by which its properties may be bound, or (iv) result
in or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower or any of its
Subsidiaries except Permitted Liens.
(e) Business. The Borrower and its Subsidiaries are
engaged primarily in the business of acquiring, managing and selling interests
in real property.
(f) Compliance with Law. The Borrower and each of its
Subsidiaries are in compliance with all Applicable Laws, the non-compliance with
which would have a Materially Adverse Effect.
(g) Necessary Authorizations. No approval or consent of,
or filing or registration with, any federal, state or local commission or other
regulatory authority is required in connection with the execution, delivery and
performance by the Borrower of this Agreement, the Notes, and the other Loan
Documents to which it is a party. All such described action required to be taken
as a condition to the execution and delivery of this Agreement, the Notes and
other Loan Documents to which the Borrower is a party has been duly taken by all
such commissions and authorities or other Persons, as the case may be, and all
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such action required to be taken as a condition to the initial Advance hereunder
has been or will be duly taken prior to such initial Advance.
(h) Title to Properties. The Borrower and each of its
Subsidiaries have good, marketable, and legal title to, or a valid leasehold
interest in, all of their respective material tangible properties, including,
without limitation, the Negative Pledge Properties, and assets free and clear of
all Liens, except Permitted Liens.
(i) Collective Bargaining. There are no collective
bargaining agreements between the Borrower or any of its Subsidiaries and any
trade or labor union or other employee collective bargaining agent.
(j) Litigation. There is no material action, suit,
proceeding or investigation pending against, or, to the best knowledge of the
Borrower or any of its Subsidiaries threatened against or in any other manner
relating adversely to, the Borrower or any of its Subsidiaries or any of their
properties in any court or before any arbitrator of any kind or before or by any
governmental body, and no such action, suit, proceeding or investigation (i)
calls into question the validity of this Agreement or any other Loan Document,
or (ii) could, if determined adversely to any such Person, have a Materially
Adverse Effect.
(k) Taxes. All federal, state and other tax returns of
the Borrower and each of its Subsidiaries required by law to be filed have been
duly filed and all Federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower and each of its Subsidiaries or
imposed upon the Borrower or any of its Subsidiaries or any of their respective
properties, income, profits or assets, which are due and payable, have been
paid, except any such tax (x) the payment of which the Borrower or its
Subsidiary is diligently contesting in good faith by appropriate proceedings,
(y) for which adequate reserves have been provided on the books of the Borrower
and (z) as to which no Lien other than a Permitted Lien has attached and no
foreclosure, distraint, sale or similar proceedings have been commenced. The
charges, accruals and reserves on the books of the Borrower in respect of taxes
are, in the judgment of the Borrower adequate.
(l) Consolidated Financial Statements. The Borrower has
furnished or caused to be furnished to the Administrative Agent copies of the
balance sheets and statements of income for the Borrower for the most
recently-ended fiscal year for which consolidated financial statements are
available and for the quarter ended June 30, 1998, which are complete and
correct in all material respects and present fairly the financial position of
the Borrower on and as at such dates and the results of operations for the
periods then ended. The Borrower has no material liabilities, contingent or
otherwise, other than as
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disclosed in the consolidated financial statements referred to in the preceding
sentence, and there are no material unrealized losses of the Borrower and no
material anticipated losses of the Borrower other than those which have been
previously disclosed in writing to the Banks and identified to the Banks as
such.
(m) No Adverse Change. Since December 31, 1997, there has
occurred no event which could reasonably be expected to have or which has had a
Materially Adverse Effect.
(n) ERISA. Each of the Borrower and its ERISA Affiliates
and each of their respective Plans are in substantial compliance with ERISA and
the Code and neither the Borrower nor any of its ERISA Affiliates has incurred
any accumulated funding deficiency with respect to any such Plan within the
meaning of ERISA or the Code. The Borrower and each of its ERISA Affiliates have
complied with all requirements of ERISA Sections 601 through 608 and Code
Section 4980B in all material respects. The Borrower has not incurred any
material liability to the Pension Benefit Guaranty Corporation in connection
with any Plan. The assets of each Plan which is subject to Title IV of ERISA are
sufficient to provide the benefits under such Plan, the payment of which the
Pension Benefit Guaranty Corporation would guarantee if such Plan were
terminated, and such assets are also sufficient to provide all other "benefit
liabilities" (as defined in ERISA Section 4001(a)(16)) due under the plan upon
termination. No Reportable Event has occurred and is continuing with respect to
any Plan. No Plan or trust created thereunder, or party in interest (as defined
in Section 3(14) of ERISA, or any fiduciary (as defined in Section 3(21) of
ERISA), has engaged in a "prohibited transaction" (as such term is defined in
Section 406 of ERISA or Section 4975 of the Code) which would subject the
Borrower or any ERISA Affiliate to a material penalty or tax on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither the Borrower nor any of its ERISA Affiliates is a participant in or is
obligated to make any payment to a Multiemployer Plan.
(o) Patents, Trademarks, etc. The Borrower and each of
its Subsidiaries own, possess or have the right to use all licenses and rights
to all patents, trademarks, trademark rights, trade names, trade name rights,
service marks, and copyrights, and rights with respect thereto, necessary to
conduct its business in all material respects as now conducted, without known
conflict with any patent, trademark, trade name, service mark, license or
copyright of any other Person, and in each case, with respect to patents,
trademarks, trademark rights, trade names, trade name and copyrights and
licenses with respect thereto owned by the Borrower and each of its
Subsidiaries, subject to no mortgage, pledge, lien, lease, encumbrance, charge,
security interest, title retention agreement or option. All such licenses and
rights with respect to patents, trademarks, trademark rights, trade names, trade
name rights, service marks and copyrights are in full force and effect, and to
the
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extent applicable, the Borrower and each of its Subsidiaries is in full
compliance in all material respects with all of the provisions thereof. No such
patent, trademark, trademark rights, trade names, trade name rights, service
marks, copyrights or licenses is subject to any pending or, to the best of the
Borrower's knowledge, threatened attack or revocation. Neither the Borrower nor
any of its Subsidiaries owns any registered copyrights or patents and the
Borrower's and its Subsidiaries' businesses are not subject to any license
(other than general business licenses and permits).
(p) Casualties; Taking of Properties, etc. Since the date
of the most recent financial statements provided to the Administrative Agent and
the Banks by the Borrower, neither the business nor the properties of the
Borrower or any of its Subsidiaries have been materially and adversely affected
as a result of any fire, explosion, earthquake, flood, drought, windstorm,
accident, strike or other labor disturbance, embargo, requisition or taking of
property or cancellation of contracts, permits or concessions by any domestic or
foreign government or any agency thereof, riot, activities of armed forces, or
acts of God or of any public enemy which are not subject to a claim for
reimbursement of insurance.
(q) Accuracy and Completeness of Information. None of the
financial statements or any written statements delivered to the Administrative
Agent or the Banks pursuant to this Agreement contains, as at the date of
delivery thereof, any untrue statement of material fact nor do such financial
statements, and such written statements, taken as a whole, omit to state a
material fact or any fact necessary to make the statements contained therein not
misleading in any material respect.
(r) Compliance with Regulations U, and X. Neither the
Borrower nor any of its Subsidiaries is engaged principally or as one of its
important activities in the business of extending credit for the purpose of
purchasing or carrying, and neither the Borrower nor any of its Subsidiaries
owns or presently intends to acquire, any "margin security" or "margin stock" as
defined in Regulations U, and X (12 C.F.R. Parts 221 and 224) of the Board of
Governors of the Federal Reserve System (herein called "margin stock").
Notwithstanding the foregoing, the Borrower may extend credit from time to time
to purchase shares of its common stock in connection with its incentive and
benefit plans. None of the proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which might
constitute this transaction a "purpose credit" within the meaning of said
Regulations U, and X. Neither the Borrower nor any bank acting on its behalf has
taken or will take any action which might cause this Agreement or the Notes to
violate Regulation U, or X or any other regulation of the Board of Governors of
the Federal Reserve System or to violate the Securities Exchange Act of 1934, in
each case as now in effect or as the same may hereafter
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be in effect. If so requested by a Bank, the Borrower will furnish such Bank
with (i) a statement or statements in conformity with the requirements of
Federal Reserve Form U-1 or G-3 referred to in Regulation U of said Board of
Governors and (ii) other documents evidencing its compliance with the margin
regulations, including without limitation an opinion of counsel in form and
substance satisfactory to such Bank. Neither the making of the Loans nor the use
of proceeds thereof will violate, or be inconsistent with, the provisions of
Regulation U, or X of said Board of Governors.
(s) Solvency. The Borrower is, and after giving effect to
the transactions contemplated hereby and by the Loan Documents will be, Solvent.
(t) Broker's or Finder's Commissions. No broker's or
finder's fee or commission will be payable with respect to the issuance of the
Notes, and no other similar fees or commissions will be payable by the Borrower
for any other services rendered to the Borrower ancillary to the transactions
contemplated herein.
(u) Qualification as a REIT. The Borrower has, and after
giving effect to the transactions contemplated herein, will have conducted its
business in a manner designed to qualify (and to remain qualified) as an REIT.
(v) Name of Borrower. The Borrower has not changed its
name within the preceding five (5) years from the Agreement Date, nor has the
Borrower transacted business under any name or tradename during the preceding
five (5) years from the Agreement Date other than under the names of its
shopping center properties.
(w) Investment Company Act. The Borrower is not required
to register under the provisions of the Investment Company Act of 1940, as
amended, and neither the entering into or performance by the Borrower of this
Agreement nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval, or authorization of, or registration with, any
governmental or public body or authority pursuant to any of the provisions of
such Act.
(x) Absence of Default. The Borrower and each of its
Subsidiaries are in compliance with all of the provisions of its certificate or
articles of incorporation and by-laws and no event has occurred or failed to
occur which has not been remedied or waived, the occurrence or non-occurrence of
which constitutes, or with the passage of time or giving of notice or both would
constitute, (i) an Event of Default or (ii) a default by the Borrower or any of
its Subsidiaries under any indenture, agreement or other instrument, or any
judgment, decree or final order to which any such Person is a party or by which
any such Person or any of its properties may be bound or affected.
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(y) Payment of Wages. The Borrower and each of its
Subsidiaries are in compliance with the Fair Labor Standards Act, as amended,
and the Borrower and each Subsidiary have paid all minimum and overtime wages
required by law to be paid to its employees.
(z) Environmental Matters. Except as set forth in
Schedule 3 attached hereto:
(i) To the best knowledge of the Borrower, each
Negative Pledge Property is free from Hazardous Materials the presence of which
would materially impair the value of Negative Pledge Property, and the Borrower
and the Negative Pledge Properties are in compliance in all material respects
with all Environmental Laws. The Borrower is not aware that any Hazardous
Materials have ever been stored, treated or disposed of on any Negative Pledge
Property in violation of any Environmental Laws.
(ii) To the best knowledge of the Borrower, there
are no surface impoundments, lagoons, piles, landfills, injection wells,
underground storage areas or other man-made facilities on any Negative Pledge
Property which have accommodated Hazardous Materials, and neither the Borrower
nor, to the best of Borrower's knowledge, any third party has dumped,
discharged, buried or otherwise placed Hazardous Materials on any Negative
Pledge Property including the soil, surface water and ground water thereof.
(iii) To the best knowledge of the Borrower, there
are no buried, partially buried or above-ground tanks, storage vessels, drums or
containers located on any Negative Pledge Property in violation of any
Environmental Laws. To the best knowledge of the Borrower, there is no evidence
of leachings, spillage or accidental release of Hazardous Materials onto or into
any Negative Pledge Property.
(iv) All necessary environmental permits or
licenses required of the Borrower related to any Negative Pledge Property of the
improvements thereon have been obtained and are currently in full force and
effect.
(v) The Borrower has not received and is not
aware of any warning notice, notice of violation, administrative complaint,
judicial complaint or other formal or informal notice alleging that conditions
on any Negative Pledge Property are in violation of any of the Environmental
Laws.
(vi) The Borrower has not received, and is not
aware of, and to the best of the Borrower's knowledge, no previous owner of any
Negative Pledge Property has
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received, any summons, citation, notice, letter or other communication, written
or oral, from any federal or state environmental agency or other public agency
concerning intentional or unintentional actions or omissions on the part of the
Borrower or any previous owner of any Negative Pledge Property which resulted or
allegedly resulted in the release of Hazardous Materials onto or into the soil,
surface water or ground water of any Negative Pledge Property.
(vii) To the best of the Borrower's knowledge,
there has been no treatment, storage, disposal, discharge or other type of
release of Hazardous Materials on land adjacent or near to any Negative Pledge
Property which has contaminated any Negative Pledge Property or the surface or
ground water flowing to any Negative Pledge Property.
(aa) Year 2000 Compliance. The Borrower (i) has initiated
a review and assessment of all areas within its and each of its Subsidiaries'
business and operations (including those affected by suppliers and vendors) that
could be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications used by the Borrower or any of its Subsidiaries (or its
suppliers and vendors) may be unable to recognize and perform properly
date-sensitive functions involving certain dates prior to and any date after
December 31, 1999), (ii) is developing a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) will implement that plan in
accordance with that timetable. The Borrower reasonably believes that all
computer applications (including those of its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will on a
timely basis be able to perform properly date-sensitive functions for all dates
before and after January 1, 2000 (that is, be "Year 2000 compliant"), except to
the extent that a failure to do so could not reasonably be expected to have a
Materially Adverse Effect.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct, at and as of the Agreement Date and the
date of each Advance hereunder, except to the extent previously fulfilled in
accordance with the terms hereof and to the extent subsequently inapplicable.
All representations and warranties made under this Agreement shall survive, and
not be waived by, the execution hereof by the Banks and the Administrative
Agent, any investigation or inquiry by any Bank or the Administrative Agent, or
the making of any Advance under this Agreement.
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ARTICLE 5 - General Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower shall have the right to borrow hereunder (whether or not the conditions
to borrowing have been or can be fulfilled), and unless the Majority Banks shall
otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. The
Borrower will and will cause each of its Subsidiaries to:
(a) preserve and maintain its existence, rights,
franchises, licenses and privileges in the state of its incorporation, and each
state wherein the Negative Pledge Property lies or shall lie,
(b) maintain the corporate power and authority to own its
properties and to carry on its business as now being and hereafter proposed to
be conducted, and
(c) qualify and remain qualified, in good standing, and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification or
authorization, including without limitation, each jurisdiction wherein the
Negative Pledge Property lies or shall lie.
The Borrower and each of its Subsidiaries shall at all times comply
with all of the provisions of its certificate or articles of incorporation and
bylaws or partnership agreement, as the case may be.
Section 5.2 Business: Compliance with Applicable Law. The
Borrower will and will cause each of its Subsidiaries to (a) engage primarily in
the business of acquiring, managing and selling interests in real property, and
(b) comply with the requirements of Applicable Law, including, without
limitation, Environmental Laws.
Section 5.3 Maintenance of Properties. The Borrower will and
will cause each of its Subsidiaries to maintain or cause to be maintained in the
ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all of its Property (whether owned or held
under lease), and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto. The Borrower will and will cause each of its Subsidiaries
to maintain good, legal and marketable title to, or a valid leasehold interest
in, all of the Negative Pledge Property except to the extent sold or otherwise
disposed of in accordance herewith.
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Section 5.4 Accounting Methods and Financial Records. The
Borrower will maintain a system of accounting established and administered in
accordance with generally accepted accounting principles consistently applied,
keep adequate records and books of account in which complete entries will be
made in accordance with such accounting principles consistently applied and
reflecting all transactions required to be reflected by such accounting
principles and keep accurate and complete records of each Borrower's respective
properties and assets. The Borrower shall maintain a fiscal year ending on
December 31.
Section 5.5 Insurance. The Borrower will and will cause each of
its Subsidiaries to maintain the following policies of insurance:
(a) Insurance against loss or damage to all improvements
located on each Negative Pledge Property by fire and any of the risks covered by
insurance of the type now known as "fire and extended coverage," in an amount
not less than the full replacement cost of such improvements, and including
coverage for debris removal (exclusive of the cost of excavations, foundations,
and footings below the lowest basement floor), and with not more than $10,000
deductible from the loss payable for any casualty other than windstorms, for
which the deductible may change from time to time in accordance with customary
insurance industry adjustments for such a casualty (which policy of insurance
shall contain the "Replacement Cost Endorsement");
(b) If requested by the Administrative Agent, business
interruption insurance and/or loss of "rental value" insurance in such amounts
as are satisfactory to the Administrative Agent;
(c) Comprehensive public liability insurance (including
coverage for elevators and escalators, if any, on each Negative Pledge Property
and completed operations coverage for two years after construction of the
improvements on such Negative Pledge Property has been completed) on an
"occurrence basis" against claims for "personal injury" including, without
limitation, bodily injury, death or property damage occurring on, in or about
each Negative Pledge Property and the adjoining streets, sidewalks and
passageways, such insurance to afford immediate minimum protection to a limit of
not less than that which is reasonable and customary for similar projects with
respect to personal injury or death to any one or more persons or damage to each
Negative Pledge Property;
(d) Boiler and machinery insurance covering pressure
vessels, air tanks, boilers, machinery, pressure piping, heating, air
conditioning, elevator and escalator equipment, provided such Negative Pledge
Property contains equipment of such nature, and insurance against loss of
occupancy or use arising from breakdown of any of the items
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referred to in this subparagraph, in such amounts which are reasonable and
customary for similar projects;
(e) Insurance against loss or damage to personal property
by fire and other risks covered by insurance of the type now known as "fire and
extended coverage"; and
(f) Such other insurance, in such amounts, as may from
time to time be reasonably required by the Administrative Agent against the same
or other hazards.
Section 5.6 Payment of Taxes and Claims. The Borrower will and
will cause each of its Subsidiaries to pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by it or imposed upon it or its income or profits or
upon any Property prior to the date on which penalties attach thereto, and all
lawful claims for labor, materials and supplies which, if unpaid, might become a
Lien or charge upon any of the Negative Pledge Property; except that no such
tax, assessment, charge, levy or claim need be paid which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves shall have been set aside on the appropriate books, but only so long as
such tax, assessment, charge, levy or claim does not become a Lien or charge
other than a Permitted Lien and no foreclosure, distraint, sale or similar
proceedings have been commenced. The Borrower will and will cause each of its
Subsidiaries to timely file all returns required by Federal, state or local tax
authorities. The Borrower will maintain adequate charges, accruals and reserves
on its books in respect of taxes.
Section 5.7 Visits and Inspections. The Borrower will permit
representatives of the Administrative Agent and each Bank to (a) visit and
inspect the Negative Pledge Properties or the Borrower's principal place of
business at all reasonable times, (b) inspect and make extracts from and copies
of their respective books and records, and (c) discuss with their respective
principal officers its businesses, assets, liabilities, financial positions,
results of operations, and business prospects.
Section 5.8 Payment of Indebtedness; Loans. Subject to any
provisions herein, referred to herein, or in any other Loan Document regarding
subordination, the Borrower will and will cause each of its Subsidiaries to pay
any and all of its Indebtedness when and as it becomes due, other than amounts
diligently disputed in good faith.
Section 5.9 Use of Proceeds. The Borrower will use the proceeds
of the Loans and the Swing Line Loans solely for (a) property acquisitions, (b)
rehabilitation of existing retail centers, (c) general business purposes and (d)
new property development.
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Section 5.10 ERISA. The Borrower shall (a) notify the Banks as
soon as practicable of any Reportable Event and of any additional act or
condition arising in connection with any such Plan which the Borrower believes
might constitute grounds for the termination thereof by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan; and (b) furnish to the
Banks, promptly upon the Banks' request therefor, such additional information
concerning any such Plan as may be reasonably requested by the Banks.
Section 5.11 Indemnity. The Borrower will indemnify and hold
harmless each Bank, the Swing Line Lender and the Administrative Agent, and each
of their respective employees, representatives, officers and directors from and
against any and all claims, liabilities, losses, damages, actions, attorneys'
fees and demands by any party, (a) resulting from any breach by the Borrower of
any representation or warranty made hereunder, or (b) arising out of (i) the
Commitment and the Swing Line Commitment or the making or administration of the
Loans and the Swing Line Loans, or (ii) allegations of any participation by the
Banks, the Swing Line Lender or the Administrative Agent, or any of them, in the
affairs of the Borrower or allegations that the Banks, the Swing Line Lender or
the Administrative Agent, or any of them, has any joint liability of the
Borrower for any reason whatsoever; unless, in any case referred to above, the
Person seeking indemnification hereunder is determined in such case to have
acted or failed to act with gross negligence or willful misconduct by a
non-appealable judicial order. The provisions of this Section shall survive the
termination of this Agreement.
Section 5.12 Payment of Wages. The Borrower shall and shall cause
each of its Subsidiaries to at all times use its best efforts to comply with the
requirements of the Fair Labor Standards Act, as amended, including, without
limitation, the provisions of such Act relating to the payment of minimum and
overtime wages as the same may become due from time to time.
Section 5.13 Accuracy and Completeness of Information. All
information, reports, prospectuses, notices and other papers and data relating
to the Borrower and furnished by or on behalf of the Borrower, to the Banks or
the Administrative Agent, or any of them, shall be, at the time furnished,
complete and correct in all material respects to the extent necessary to give
the Banks and the Administrative Agent true and accurate knowledge of the
subject matter.
Section 5.14 Compliance with Environmental Laws. The Borrower
shall and shall cause each of its Subsidiaries to at all times comply in all
material respects with all applicable Environmental Laws relating to each
Negative Pledge Property and the Use of the Negative Pledge Property. The
current Use and proposed Use of each Negative Pledge
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Property and the improvements thereon do not and will not violate any
Environmental Laws, such that said violation would have a Materially Adverse
Effect. The Borrower will not use or permit any other party to use any Hazardous
Materials on any Negative Pledge Property except such materials as are
incidental to the Borrower's or such party's normal course of business,
maintenance and repairs. The Borrower agrees, upon the reasonable request of the
Administrative Agent, to provide to the Administrative Agent from time to time
(at the Borrower's expense) a current environmental assessment of any Negative
Pledge Property within a reasonable time after such request; provided, however,
that unless the Administrative Agent reasonably believes that a problem exists
with respect to any Hazardous Materials or if a phase I report contains a
recommendation for additional reports, the Borrower shall have no obligation
hereunder to provide more than a phase I report for any Negative Pledge Property
more frequently than once every three (3) years. Such assessment shall be in a
form satisfactory to the Administrative Agent and from an environmental engineer
or consultant satisfactory to the Administrative Agent and addressed to the
Banks. The Borrower also agrees to permit the Administrative Agent, its agents,
contractors, employees and representatives to enter upon and inspect each
Negative Pledge Property at any reasonable time upon two (2) days' prior notice
for the purpose of conducting environmental investigations and audits (including
taking physical samples). The Borrower agrees to provide the Administrative
Agent, its agents, contractors, employees and representatives with access to and
copies of any and all data and documents relating to or dealing with any
Hazardous Materials used, generated, manufactured, stored or dispensed of on,
under or about any Negative Pledge Property within five (5) days of the request
therefor.
Section 5.15 Indemnity in Regard to Environmental Matters. The
Borrower shall indemnify, defend and hold harmless each Bank, the Administrative
Agent and their respective employees, representatives, officers and directors
from and against any and all claims, demands, suits, losses, damages,
assessments, fines, penalties, costs or other expenses (including reasonable
attorneys' fees and court costs), arising from or in any way related to actual
or threatened damage to the environment, agency costs of investigation, personal
injury or death, or property damage, due to or resulting from (i) a release or
alleged release of Hazardous Materials arising from the Borrower's or any of its
Subsidiary's Use of any Negative Pledge Property or the improvements thereon;
(ii) the existence of Hazardous Materials at, under, within or on any Negative
Pledge Property or the improvements located thereon; (iii) the violation of any
Environmental Laws relating to any Negative Pledge Property or the Use of any
Negative Pledge Property; (iv) any investigation, inquiry, order, hearing,
action or other proceeding by or before any governmental agency which has
resulted or is alleged to have resulted directly or indirectly from the
violation of any Environmental Laws relating to any Negative Pledge Property or
the Use of any Negative Pledge Property; (v) the breach of any representation or
warranty set forth in Section 4.1(z) of this Agreement or the failure of any
such representation or warranty to remain true and correct; or (vi) any
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failure by the Borrower to perform any covenant set forth in Section 5.14 above.
The Borrower further agrees that its indemnity obligations shall include, but
are not limited to, liability for damages resulting from the personal injury or
death of an employee of the Borrower or any of its Subsidiaries, regardless of
whether the Borrower or any of its Subsidiaries has paid the employee under the
workers' compensation laws of any state or other similar federal or state
legislation for the protection of employees. The term "property damage" as used
in this Section 5.15 includes, but is not limited to, damage to any real or
personal property or Borrower, any Bank, the Administrative Agent or any third
party. The provisions of this Section 5.15 shall survive the termination of this
Agreement, but shall be applicable only for the period during which the Borrower
or any of its Subsidiaries was an owner or operator of such properties.
Section 5.16 Further Assurances. The Borrower will promptly cure,
or cause to be cured, defects in the creation and issuance of the Notes and the
execution and delivery of the Loan Documents (including this Agreement),
resulting from any act or failure to act by the Borrower or any employee or
officer thereof. The Borrower at its expense will promptly execute and deliver
to the Administrative Agent and the Banks, or cause to be executed and delivered
to the Administrative Agent and the Banks, all such other and further documents,
agreements, and instruments in compliance with or accomplishment of the
covenants and agreements of the Borrower in the Loan Documents, including this
Agreement, or to correct any omissions in the Loan Documents, or more fully to
state the obligations set out herein or in any of the Loan Documents, or to
obtain any consents, all as may be necessary or appropriate in connection
therewith as may be reasonably requested.
Section 5.17 Broker's Claims. The Borrower hereby indemnifies and
agrees to hold the Administrative Agent and each of the Banks harmless from and
against any and all losses, liabilities, damages, costs and expenses which may
be suffered or incurred by the Administrative Agent and each of the Banks in
respect of any claim, suit, action or cause of action now or hereafter asserted
by a broker or any Person acting in a similar capacity arising from or in
connection with the execution and delivery of this Agreement or any other Loan
Document or the consummation of the transactions contemplated herein or therein
and arising out of any act or agreement of the Borrower. The Banks and the
Administrative Agent hereby acknowledge and agree that they have not retained
any broker or any Person acting in a similar capacity in connection with this
Agreement.
Section 5.18 Covenants Regarding Formation of Subsidiaries and
Acquisitions. Contemporaneously with (a) any merger or consolidation by a
Subsidiary of the Borrower or (b) the formation of any new Subsidiary of the
Borrower which results, in each case, in such Subsidiary owning any Negative
Pledge Properties, the Borrower will, and will cause such Subsidiaries, as
appropriate, to (i) provide to the Administrative Agent an executed
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Subsidiary Guaranty for such Subsidiary, in substantially the form of Exhibit C
attached hereto, which shall constitute a Loan Document for purposes of this
Agreement, as well as a loan certificate for such Subsidiary, substantially in
the form of Exhibit G attached hereto, together with appropriate attachments
(which shall include articles of incorporation, bylaws and incumbency
certificates), and (ii) all other documentation, including one or more opinions
of counsel with respect to formation of such Subsidiary and enforceability of
any Loan Documents except by such Subsidiary, reasonably satisfactory to the
Administrative Agent which in its reasonable opinion is appropriate with respect
to such merger or consolidation and formation of such Subsidiary. Any document,
agreement or instrument executed or issued pursuant to this Section 5.18 shall
be a "Loan Document" for purposes of this Agreement.
Section 5.19 Year 2000 Compliance. The Borrower will promptly
notify the Administrative Agent in the event the Borrower is made aware of or
determines that any computer application (including those of its suppliers and
vendors) that is material to the business and operation of the Borrower or of
any of the Borrower's Subsidiaries will not be Year 2000 compliant on a timely
basis, except to the extent that such failure could not reasonably be expected
to have a Materially Adverse Effect.
ARTICLE 6 - Information Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Banks shall
otherwise consent in writing, the Borrower will furnish or cause to be furnished
to each Bank and to the Administrative Agent at their respective offices:
Section 6.1 Quarterly Operations Statements. Within forty-five
(45) days after the end of the first, second and third quarters in each fiscal
year of the Borrower, and within ninety (90) days after the end of each fiscal
year of the Borrower, (a) a quarterly operations statement with respect to each
of the Negative Pledge Properties, which quarterly operations statement shall
contain the project name and location and cash flow analysis, and (b) quarterly
rent rolls with respect to each of the Negative Pledge Properties (except for
apartment properties). All quarterly operations statements for a period also
shall include a comparison to the budget for such period and shall be certified
by Borrower.
Section 6.2 Quarterly Consolidated Financial Statements and
Information. Within forty-five (45) days after the last day of the first, second
and third quarters in each fiscal year of the Borrower, Borrower's Form 10-Q as
filed with the Securities and Exchange Commission which shall contain the
consolidated balance sheet of the Borrower as at the end
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of such quarter, and the related consolidated statement of earnings and related
consolidated statement of shareholders' equity and related consolidated
statement of cash flows of the Borrower for such quarter and for the elapsed
portion of the year ended with the last day of such quarter, which shall be
certified by the chief financial officer of the Borrower, to be, in his or her
opinion, complete and correct in all material respects and to present fairly, in
accordance with generally accepted accounting principles consistently applied,
the financial position of the Borrower, as at the end of such period and the
results of operations for such period, and for the elapsed portion of the year
ended with the last day of such period, subject only to normal year-end
adjustments.
Section 6.3 Annual Consolidated Financial Statements and
Information; Certificate of No Default. Within ninety (90) days after the end of
each fiscal year of the Borrower, Borrower's Form 10-K as filed with the
Securities and Exchange Commission which shall contain the audited consolidated
balance sheets of the Borrower, as at the end of such fiscal year, and the
related audited consolidated statements of earnings and the related audited
consolidated statements of shareholders' equity and the related audited
consolidated statements of cash flows of the Borrower for such fiscal year,
which consolidated financial statements shall set forth in comparative form such
figures as at the end of and for the previous fiscal year, and shall be
accompanied by an opinion of independent certified public accountants of
recognized standing satisfactory to the Administrative Agent and the Banks,
together with a statement of such accountants certifying that during their
examination of the Borrower such accountants have observed no Default or Event
of Default, including, without limitation, any Default under Sections 7.6, 7.7,
7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.18 and 7.19 hereof.
Section 6.4 Performance Certificates. At the time the
consolidated financial statements are furnished pursuant to Sections 6.2 and
6.3, a certificate of an Authorized Signatory of the Borrower in form and
substance satisfactory to the Majority Banks:
(a) Setting forth as at the end of such quarter or
calendar year, as the case may be, the arithmetical calculations required to
establish whether or not the Borrower was in compliance with the requirements of
Sections 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.18 and 7.19 hereof;
(b) Stating that, to the best of his or her knowledge, no
Default or Event of Default has occurred as at the end of such quarter or year,
as the case may be, or, if a Default or an Event of Default has occurred,
disclosing each such Default or Event of Default and its nature, when it
occurred, whether it is continuing, and the steps being taken by the Borrower
with respect to such Default or Event of Default;
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(c) Setting forth (i) each Negative Pledge Property and
the Person owning each Negative Pledge Property, (ii) each Unencumbered Real
Estate Asset and the Person owning each Unencumbered Real Estate Asset and (iii)
each asset of any Consolidated Entity or Unconsolidated Entity which is not a
Subsidiary Guarantor and the Person owning such asset; and
(d) Setting forth the name of each trustee (or similar
person) for all Indebtedness for Money Borrowed which is publicly issued and not
subordinated to the Obligations.
Section 6.5 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all reports,
if any, submitted to the Borrower by its independent public accountants
regarding the Borrower, including, without limitation, any management report
prepared in connection with the annual audit referred to in Section 6.3 hereof.
(b) Promptly after the preparation of the same, copies of
all material reports or financial information filed with any governmental
agency, department, bureau, division or other governmental authority or
regulatory body (including, without limitation, the Securities and Exchange
Commission) or evidencing facts or containing information which could have a
Materially Adverse Effect.
(c) From time to time and promptly upon each request,
such data, certificates, reports, statements, documents, or further information
regarding the business, assets, liabilities, financial position, projections,
results of operations of the Borrower or any of its Subsidiaries as the
Administrative Agent, upon request of the Majority Banks, may reasonably
request.
(d) Notice of any change in the Senior Management of the
Borrower.
(e) Promptly after the same shall be submitted to the
board of directors of the Borrower, copies of Directors' Books annually prepared
by the Borrower.
Section 6.6 Notice of Litigation and Other Matters. Prompt notice
of the following events as to which the Borrower has received notice or
otherwise become aware thereof:
(a) The commencement of all material proceedings and
investigations by or before any governmental body and all actions and
proceedings in any court or before any arbitrator against or, to the extent
known to the Borrower, in any other way relating
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adversely and directly to the Borrower, its Subsidiaries, or any of their
respective properties, assets, or businesses which, if determined adversely to
the Borrower or such Subsidiary is reasonably likely to result in an Event of
Default or have a Materially Adverse Effect on the Borrower, or which calls into
question the validity of this Agreement or any other Loan Document;
(b) Any material adverse change with respect to the
business, assets, liabilities, financial position, or results of operations of
the Borrower, other than changes in the ordinary course of business which have
not had and are not likely to have a Materially Adverse Effect;
(c) Any Default or default by the Borrower or any of its
Subsidiaries under any agreement (other than this Agreement) to which the
Borrower or any of its Subsidiaries is party or by which any of their respective
properties is bound which is likely to have a Materially Adverse Effect or the
occurrence of any other event which could have a Materially Adverse Effect,
giving in each case the details thereof and specifying the action proposed to be
taken with respect thereto; and
(d) The occurrence of any Reportable Event or a
"prohibited transaction" (as such term is defined in Section 406 of ERISA or
Section 4975 of the Code) with respect to any Plan of the Borrower or any of its
ERISA Affiliates or the institution or threatened institution by the Pension
Benefit Guaranty Corporation of proceedings under ERISA to terminate or to
partially terminate any such Plan or the commencement or threatened commencement
of any litigation regarding any such Plan or naming it or the Trustee of any
such Plan with respect to such Plan.
(e) The occurrence of any event subsequent to the
Agreement Date which, if such event had occurred prior to the Agreement Date,
would have constituted an exception to the representation and warranty in
Section 4.1(n) of this Agreement.
Section 6.7 Matters Affecting the Negative Pledge Property.
(a) All leases (and amendments thereto), easements, liens
and contracts of sale (whether or not recorded of public record) hereafter
entered into affecting the Negative Pledge Property as requested by the Bank.
(b) With respect to any apartment property now or hereafter
constituting the Negative Pledge Property, Borrower shall provide a yearly
schedule of lease terms which shall include the tenant's name(s) and the
expiration date of all leases.
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Section 6.8 Notices from the Borrower Regarding Environmental
Matters. The Borrower shall promptly, after obtaining knowledge thereof, advise
the Bank in writing of (a) any and all enforcement, cleanup, remedial, removal
or other governmental or regulatory actions instituted or threatened, orally or
in writing, pursuant to any of the Environmental Laws affecting the Negative
Pledge Property or any obligation of the Borrower hereunder including, without
limitation, any notice of inspection, potential liability under CERCLA,
abatement or noncompliance; (b) all claims made or threatened in writing by any
third party against the Borrower, affecting the Negative Pledge Property for
damages, contribution, cost recovery compensation, loss or injury resulting from
any Hazardous Materials or asserting or alleging a violation of or liability
under any of the Environmental Laws or under any common law theory of liability
involving environmental or health safety matters; (c) the Borrower's discovery
of any occurrence or condition on the Negative Pledge Property or any real
property adjoining or in the vicinity of the Negative Pledge Property which
could subject Borrower or the Negative Pledge Property to a claim under any of
the Environmental Laws; (d) any restrictions imposed or threatened on ownership,
occupancy, transferability or Use of the Negative Pledge Property under any of
the Environmental Laws; or (e) any remedial action taken by the Borrower with
respect to any Hazardous Materials affecting the Negative Pledge Property. The
Borrower shall deliver to the Administrative Agent any documentation or records
in connection with any of the foregoing matters which the Administrative Agent
may reasonably request and which are susceptible of being obtained by the
Borrower without undue cost or expense.
ARTICLE 7 - Negative Covenants.
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Majority Banks shall
otherwise give their prior consent in writing:
Section 7.1 Indebtedness of the Borrower. The Borrower shall not
create, assume, incur or otherwise become or remain obligated in respect of, or
permit to be outstanding, and the Borrower shall not permit any of its
Subsidiaries to create, assume, incur or otherwise become or remain, obligated
in respect of, or permit to be outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement, the Notes and the
other Loan Documents;
(b) Trade accounts payable, accrued expenses, customer
advance payments, contractual obligations to suppliers, customers, tenants and
contractors incurred in
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the ordinary course of business, and other current liabilities (other than
Indebtedness for Money Borrowed) incurred in the ordinary course of business;
(c) Indebtedness secured by Permitted Liens;
(d) Indebtedness existing as of the Agreement Date as
described on Schedule 4 attached hereto;
(e) so long as no Default exists hereunder, or would be
caused thereby, additional (i) Nonrecourse Indebtedness (which can be secured)
and (ii) other Indebtedness (which cannot be secured), to the maximum amount of
Indebtedness which the Borrower and its Subsidiaries could incur on such date
and remain in compliance with all covenants set forth herein;
(f) Indebtedness permitted under Section 7.5 hereof; and
(g) any other Indebtedness on terms and conditions
satisfactory to the Administrative Agent with prior written consent of the
Majority Banks.
Section 7.2 Limitation on Liens. The Borrower shall not create,
assume, incur or permit to exist or to be created, assumed, incurred or
permitted to exist, and shall not permit any of its Subsidiaries to create,
assume, incur or permit to exist or to be created, assumed or permitted to
exist, directly or indirectly, any Lien on any of its properties or assets,
whether now owned or hereafter acquired, except for Permitted Liens, and shall
not covenant or agree and shall not permit any of its Subsidiaries to covenant
and agree, with any third party that it will not create, assume, incur or permit
to exist or to be created, assumed, incurred or permitted to exist any Lien on
any of the Negative Pledge Property.
Section 7.3 Amendment and Waiver. The Borrower shall not and
shall not permit any of its Subsidiaries to, without the prior written consent
of the Majority Banks, enter into any material amendment of, or agree to or
accept any material waiver of its by-laws or articles of incorporation, which
would adversely affect the rights of the Administrative Agent and the Banks
under this Agreement or any other Loan Document.
Section 7.4 Liquidation; Disposition or Acquisition of Assets.
The Borrower shall not and shall not permit any of its Subsidiaries to (a)
liquidate or dissolve itself (or suffer any liquidation or dissolution,
including, without limitation, the announcement or adoption of any plan of
dissolution) or otherwise wind up, or (b) enter into any merger or consolidation
unless such dissolution, merger or consolidation is contingent upon cancellation
of the Commitment and payment in full of the Obligations; provided, however,
that, without the
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prior written consent of the Majority Banks, the Borrower and its Subsidiaries
shall be permitted to enter into mergers and consolidations so long as (A) no
Default exists hereunder or would be caused thereby (B) the Borrower provides
written evidence in the form of a pro forma compliance certificate that all
covenants hereunder will continue to be met on a pro forma basis after giving
effect thereto, (C) such merger or consolidation is with a Person whose business
is substantially consistent with the business of the Borrower or the Subsidiary,
as the case may be, being merged or consolidated, (D) such merger or
consolidation does not result in a change of business of the Borrower or the
Subsidiary, as the case may be, (E) the Borrower shall not have been advised by
any rating agency then rating the Borrower's Indebtedness or investment bank
advising the Borrower in connection with such merger or consolidation that such
merger or consolidation will result in a downward adjustment to its investment
grade rating, (F) in the case of a merger or consolidation involving the
Borrower or a Subsidiary Guarantor, the Borrower or such Subsidiary Guarantor,
as the case may be, shall be the surviving entity, and (G) if such merger or
consolidation results in a new Subsidiary of the Borrower, such new Subsidiary
shall provide to the Administrative Agent a Guaranty if required pursuant to
Section 5.18 hereof.
Section 7.5 Limitation on Guaranties. The Borrower shall not and
shall not permit any of its Subsidiaries to at any time guaranty, or assume, be
obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person in excess of $100,000 in the aggregate
outstanding at any time without the prior written consent of the Majority Banks.
Section 7.6 Dividends. Except as hereinafter provided, in no
event shall the Borrower pay or declare any dividend in respect to any of its
capital stock (including, without limitation, any preferred stock) in excess of
an amount which is equal to ninety-five percent (95%) of its Funds From
Operations. The foregoing shall not be deemed to prohibit the Borrower from
paying a special dividend which the Board of Directors shall determine to be
necessary in order for the Borrower to avoid liability for federal income taxes
on account of gain from the sale of properties.
Section 7.7 Borrower Net Worth. The Borrower will at all times
maintain a Net Worth equal to or greater than the sum of (a) $232,255,821 plus
(b) fifty percent (50%) of the Net Proceeds of each public or private offering
of the common stock and the preferred stock of the Borrower subsequent to the
Agreement Date.
Section 7.8 Indebtedness Ratio. The Borrower will at all times
maintain a ratio of Indebtedness for Money Borrowed to Net Worth of not greater
than 1.50 to 1.
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Section 7.9 Interest Coverage. The Borrower will at all times
maintain a ratio of EBITDA to the sum of (a) Interest on Indebtedness for Money
Borrowed and (b) dividends paid on any preferred stock during such period of no
less than 2.00 to 1.
Section 7.10 Collateral Value. The Borrower will not at any time
permit the aggregate amount of the outstanding Loans and the Swing Line Loans to
exceed sixty-five percent (65%) of the Value of Negative Pledge Property.
Section 7.11 Total Liabilities to Total Assets Ratio. The Borrower
shall not permit at any time Total Liabilities to exceed sixty percent (60%) of
Total Assets.
Section 7.12 Net Income. The Borrower shall not (a) have a net
operating loss (before deduction for any real estate valuation loss or reserve)
for any fiscal quarter which is equal to or greater than $1,000,000, (b) have a
net operating loss for any two (2) consecutive fiscal quarters or (c) have a net
operating loss for any fiscal year.
Section 7.13 Debt Service Coverage Ratio. The Borrower shall for
each fiscal year maintain a Debt Service Coverage Ratio of not less than 1.25 to
1.
Section 7.14 Value of Unencumbered Real Estate Assets. The Value
of Unencumbered Real Estate Assets shall not, at any time, be less than one
hundred fifty percent (150%) of all Unsecured Senior Debt.
Section 7.15 Affiliate Transactions. Except for agreements which
are direct cost or direct revenue pass through in nature, the Borrower shall
not, and shall not permit any of its Subsidiaries to, at any time engage in any
transaction with an Affiliate, nor make an assignment or other transfer of any
of its assets to any Affiliate, on terms less advantageous than would be the
case if such transaction had been effected with a non-Affiliate.
Section 7.16 ERISA Liabilities. The Borrower shall not, and shall
not permit any ERISA Affiliate to, fail to meet all of the applicable minimum
funding requirements of ERISA and the Code, without regard to any waivers
thereof, and, to the extent that the assets of any of its Plans would be less
than an amount sufficient to provide all accrued benefits payable under such
Plans, shall make the maximum deductible contributions allowable under the Code.
The Borrower shall not, and shall not permit any ERISA Affiliate to, become a
participant in any Multiemployer Plan.
Section 7.17 Business of the Borrower. Neither of the Borrower nor
any Subsidiary of the Borrower shall undertake, or be permitted to undertake,
and shall not permit any of their Subsidiaries to undertake or be permitted to
undertake, any business other than the
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acquisition, development, ownership, management, operation and leasing of
neighborhood anchored retail properties and ancillary businesses specifically
related thereto, except as provided in Section 7.19 hereof.
Section 7.18 Total Secured Liabilities to Total Assets. The
Borrower shall not at any time permit Total Secured Liabilities to exceed forty
percent (40%) of the Total Assets.
Section 7.19 Limitation on Nonconforming Investments. The Borrower
and any of its direct or indirect Subsidiaries may invest in the following
nonconforming assets or property ("Nonconforming Investments") without the prior
written approval of the Administrative Agent, Swing Line Lender or the Banks
provided that at no time shall the aggregate amount of such investment in
Nonconforming Investments exceed fifteen percent (15%) of Total Assets:
(a) unimproved land;
(b) other non-income-producing property holdings,
including, without limitation, assets or properties under development (but,
excluding any properties or portions thereof owned by the Borrower or any of its
Subsidiaries which are wholly or partially converted by such Person into a
non-income-producing holding for a period of no longer than six (6) consecutive
calendar months);
(c) income-producing properties which are not considered
to be within the Borrower's primary course of business as set forth in Section
7.17 (other than those set forth on Schedule 5 attached hereto which will be
deemed conforming assets);
(d) cash and cash equivalents (other than stock holdings)
which are not invested in one or more of the following: (i) money market mutual
funds, (ii) marketable, direct obligations of the United States of America, its
agencies and instrumentalities maturing within 365 days of the date of purchase,
or (iii) commercial paper issued by corporations, each of which shall have a
combined net worth of at least $100 million and each of which conducts a
substantial part of its business in the United States of America, maturing
within 270 days from the date of the original issue thereof and rated "A-2" or
better by S&P. Subsections (i) through (iii) shall be deemed conforming assets;
(e) stock holdings (excluding holdings in Subsidiaries
and Affiliates engaged in the Borrower's primary course of business which are
hereby deemed conforming);
(f) mortgages;
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(g) joint ventures and partnerships (excluding those
investments in Affiliates engaged in the Borrower's primary course of business
which are hereby deemed conforming); and
(h) investments in any Consolidated Entities and
Unconsolidated Entities which is not a guarantor of the Loans (provided that the
foregoing shall be exclusive of investments in IRT Management Company, to the
extent of its investments in any Subsidiary Guarantor, which investments are
deemed to be conforming).
ARTICLE 8 - Default.
Section 8.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule, or regulation
of any governmental or non-governmental body:
(a) Any representation or warranty made under this
Agreement shall prove incorrect or misleading in any material respect when made
or deemed to have been made;
(b) The Borrower shall default in the payment of any
principal, interest or fees payable hereunder, under the Notes or under the
Swing Line Note, or any of them, or under the other Loan Documents and such
default shall continue for a period of ten (10) days;
(c) The Borrower or any of its Subsidiaries shall default
in the performance or observance of any agreement or covenant contained in
Article 6 or Article 7 hereof and the Borrower shall have knowledge thereof or
shall have received notice from the Administrative Agent with respect thereto,
and, with respect to Sections 7.3, 7.10 or 7.15 only, thirty (30) days have
elapsed from the date of such notice;
(d) The Borrower or any of its Subsidiaries shall default
in the performance or observance of any other agreement or covenant contained in
this Agreement not specifically referred to elsewhere in this Section 8.1, and
such Default shall not be cured to the Majority Banks' satisfaction within a
period of thirty (30) days from the date the Borrower becomes aware of the
occurrence of such default;
(e) There shall occur any Default in the performance or
observance of any agreement or covenant or breach of any representation or
warranty contained in any of the
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Loan Documents (other than this Agreement or as otherwise provided in Section
8.1 of this Agreement), which shall not be cured to the Majority Banks'
satisfaction within the applicable cure period, if any, provided for in such
Loan Document or thirty (30) days from the date the Borrower becomes aware of
the breach or Default if no cure period is provided in such Loan Document;
(f) Any Person (together with Affiliates of such Person)
shall have, directly or indirectly, a beneficial ownership of more than twenty
percent (20%) of the voting equity interests or voting securities or the power
to direct or cause the direction of the management and policies of the Borrower;
(g) There shall be entered a decree or order for relief
in respect of the Borrower or any of its Subsidiaries, under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy law or other similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator, or similar
official of the Borrower or any of its Subsidiaries, or of any substantial part
of its properties, or ordering the winding-up or liquidation of the affairs of
the Borrower or any of its Subsidiaries, or an involuntary petition shall be
filed against the Borrower or any of its Subsidiaries and a temporary stay
entered, and (i) such petition and stay shall not be diligently contested, or
(ii) any such petition and stay shall continue undismissed for a period of
thirty (30) consecutive days;
(h) The Borrower or any of its Subsidiaries shall file a
petition, answer, or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable federal
or state bankruptcy law or other similar law, or the Borrower or any of its
Subsidiaries shall consent to the institution of proceedings thereunder or to
the filing of any such petition or to the appointment or taking of possession of
a receiver, liquidator, assignee, trustee, custodian, sequestrator, or other
similar official of the Borrower or any of its Subsidiaries, or of any
substantial part of their respective properties, or the Borrower or any of its
Subsidiaries shall fail generally to pay their respective debts as they become
due, or the Borrower or any of its Subsidiaries shall take any corporate or
partnership action to authorize any such action;
(i) A final judgment (the payment of which is not covered
by insurance) shall be entered by any court against any of the Borrower and its
Affiliates for the payment of money which exceeds $100,000, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of any of the Borrower and its Affiliates which, together with all
other such property of any of the Borrower and its Affiliates subject to other
such process, exceeds in value $100,000 in the aggregate, and if, within thirty
(30) days after the entry, issue or levy thereof, such judgment, warrant or
process shall not have
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been paid or discharged or stayed pending appeal, or if, after the expiration of
any such stay, such judgment, warrant or process shall not have been paid or
discharged;
(j) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect to
any Plan maintained by any of the Borrower and its Affiliates, or to which the
Borrower or any of its Affiliates has any liabilities, or any trust created
thereunder; or a trustee shall be appointed by a United States District Court to
administer any such Plan; or the Pension Benefit Guaranty Corporation shall
institute proceedings to terminate any such Plan; or any of the Borrower and its
Affiliates shall incur any liability to the Pension Benefit Guaranty Corporation
in connection with the termination of any such Plan; or any Plan or trust
created under any Plan of any of the Borrower and its Affiliates shall engage in
a non-exempt "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) which would subject any such Plan, any trust
created thereunder, any trustee or administrator thereof, or any party dealing
with any such Plan or trust to the tax or penalty on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code; or any of the
Borrower and its Affiliates shall enter into or become obligated to contribute
to a Multiemployer Plan;
(k) There shall occur any default under any indenture,
agreement or instrument (i) evidencing Indebtedness of the Borrower or any of
its Affiliates (other than Indebtedness which is Nonrecourse and as to which no
personal liability has been asserted against the Borrower or such Affiliate) in
an aggregate principal amount exceeding $5,000,000 which default shall remain
uncured for a period of thirty (30) days or (ii) between the Borrower or any of
its Affiliates and any Bank;
(l) Any violation of applicable environmental law shall
occur with respect to the properties of any of the Borrower and its Affiliates,
which has a reasonable expectation of having a Materially Adverse Effect;
(m) Any material violation of applicable environmental
law shall occur with respect to any parcel constituting the Negative Pledge
Property; or
(n) All or any portion of any Loan Document shall at any
time and for any reason be declared by a court of competent jurisdiction in a
suit with respect to such Loan Document to be null and void, or a proceeding
shall be commenced by any Governmental Authority having jurisdiction over the
Borrower involving a legitimate dispute or by the Borrower seeking to establish
the invalidity or unenforceability thereof (exclusive of questions of
interpretation of any provision thereof), or the Borrower shall deny that it has
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any liability or obligation for the payment of principal or interest purported
to be created under any Loan Document;
(o) The Borrower shall at any time cease to be qualified
as a REIT for any purpose under the Code;
(p) The Borrower shall fail to maintain Senior Management
as in effect on the Agreement Date, or such other Persons as Senior Management
as have equivalent character, experience and knowledge of the business of the
Borrower as may be reasonably acceptable to the Administrative Agent and the
Majority Banks.
(q) There shall occur any event which has a Materially
Adverse Effect.
Section 8.2 Remedies. If an Event of Default shall have occurred
and shall be continuing:
(a) With the exception of an Event of Default, specified
in Sections 8.1(g) or (h), the Administrative Agent shall at the request, or may
with the consent, of the Majority Banks, by notice to the Borrower (i) declare
the Notes and the Swing Line Note, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes and the Swing Line Note, all such interest and
all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower and/or (ii) terminate the Commitment and
the Swing Line Commitment.
(b) Upon the occurrence of an Event of Default under
Sections 8.1(g) and (h) hereof, the Commitment and the Swing Line Commitment
shall automatically terminate and such principal, interest (including without
limitation, interest which would have accrued but for the commencement of a case
or proceeding under the federal bankruptcy laws) and other amounts payable under
this Agreement, the Notes or the Swing Line Note shall thereupon and
concurrently therewith become due and payable, all without any action by the
Administrative Agent, or the Banks or the holders of the Notes and Swing Line
Note, and all without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, anything in this Agreement, in the Notes or
in the Swing Line Note to the contrary notwithstanding.
(c) The Administrative Agent, with the concurrence of the
Majority Banks, shall exercise all of the post-default rights granted to it and
to them under the Loan Documents or under Applicable Law.
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(d) The rights and remedies of the Administrative Agent,
the Banks and the Swing Line Lender hereunder shall be cumulative, and not
exclusive.
ARTICLE 9 - The Administrative Agent.
Section 9.1 Appointment and Authorization. Each Bank hereby
irrevocably appoints and authorizes, and hereby agrees that it will require any
transferee of any of its interest in its Loans and in its Notes irrevocably to
appoint and authorize, the Administrative Agent to take such actions as its
agent on its behalf and to exercise such powers hereunder as are delegated by
the terms hereof, together with such powers as are reasonably incidental
thereto. Neither the Administrative Agent nor any of its directors, officers,
employees, or agents shall be liable to any Bank (or any transferee thereof) for
any action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
Section 9.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under the Loan Documents by or through agents or
attorneys selected by it using reasonable care and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible to any Bank for the negligence or misconduct of
any agents or attorneys selected by it with reasonable care.
Section 9.3 Interest Holders. The Administrative Agent may treat
each Bank, or the Person designated in the last notice filed with the
Administrative Agent under this Section 9.3, as the holder of all of the
interests of such Bank in its Loans and in its Notes until written notice of
transfer, signed by such Bank (or the Person designated in the last notice filed
with the Administrative Agent) and by the Person designated in such written
notice of transfer, in form and substance satisfactory to the Administrative
Agent, shall have been filed with the Administrative Agent.
Section 9.4 Consultation with Counsel. The Administrative Agent
may consult with legal counsel selected by it and shall not be liable to any
Bank (or transferee thereof) for any action taken or suffered by it in good
faith in reliance thereon.
Section 9.5 Documents. The Administrative Agent shall be under no
duty to examine, inquire into, or pass upon the validity, effectiveness, or
genuineness of this Agreement, any Note, or any instrument, document, or
communication furnished pursuant hereto or in connection herewith, and the
Administrative Agent shall be entitled to assume
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that they are valid, effective, and genuine, have been signed or sent by the
proper parties, and are what they purport to be.
Section 9.6 Administrative Agent and Affiliates. The
Administrative Agent and its affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Affiliates
of, or Persons doing business with, the Borrower, as if it were not affiliated
with the Administrative Agent and without any obligation to account to any Bank
(or any transferee thereof) therefor.
Section 9.7 Responsibility of the Administrative Agent. The
duties and obligations of the Administrative Agent under this Agreement are only
those expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the Borrower,
of such fact, or has been notified by a Bank that such Bank considers that a
Default or an Event of Default has occurred and is continuing, and such Bank
shall specify in detail the nature thereof in writing. The Administrative Agent
shall not be liable hereunder to any Bank (or any transferee thereof) for any
action taken or omitted to be taken except for its own gross negligence or
willful misconduct, and agrees that with respect to any actions which are taken
by (or not taken by) the Administrative Agent solely in its capacity as
Administrative Agent in its sole discretion, that the Administrative Agent will
act with the same standard of care that it applies to similar loans held for its
own account. The Administrative Agent shall provide each Bank with copies of
such documents received from the Borrower as such Bank may reasonably request.
Section 9.8 Action by Administrative Agent.
(a) Except for action requiring the approval of the
Majority Banks (or the Banks, as applicable), the Administrative Agent shall be
entitled to use its discretion with respect to exercising or refraining from
exercising any rights which may be vested in it by, and with respect to taking
or refraining from taking any action or actions which it may be able to take
under or in respect of, this Agreement, unless the Administrative Agent shall
have been instructed by the Majority Banks (or Banks, as applicable) to exercise
or refrain from exercising such rights or to take or refrain from taking such
action, provided that the Administrative Agent shall not exercise any rights
under Section 8.2(a) of this Agreement without the request of the Majority Banks
(or Banks, as applicable). The Administrative Agent shall incur no liability to
any Bank (or any transferee thereof) under or in respect of this Agreement with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or desirable in
the circumstances, except for its gross negligence or willful misconduct.
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(b) The Administrative Agent shall not be liable to the
Banks or to any Bank in acting or refraining from acting under this Agreement in
accordance with the instructions of the Majority Banks (or all Banks, as
applicable), and any action taken or failure to act pursuant to such
instructions shall be binding on all Banks.
Section 9.9 Notice of Default or Event of Default. In the event
that the Administrative Agent or any Bank shall acquire actual knowledge, or
shall have been notified in writing, of any Default or Event of Default, the
Administrative Agent or such Bank shall promptly notify the Banks and the
Administrative Agent, and the Administrative Agent shall take such action and
assert such rights under this Agreement as the Majority Banks (or all Banks, as
applicable) shall request in writing, and the Administrative Agent shall not be
subject to any liability by reason of its acting pursuant to any such request.
If the Majority Banks (or all Banks, as applicable) shall fail to request the
Administrative Agent to take action or to assert rights under this Agreement in
respect of any Default or Event of Default within ten (10) days (or shorter
period as set forth in such notice) after their receipt of the notice of any
Default or Event of Default from the Administrative Agent, or shall request
inconsistent action with respect to such Default or Event of Default, the
Administrative Agent may, but shall not be required to, take such action and
assert such rights (other than rights under Article 8 hereof) as it deems in its
discretion to be advisable for the protection of the Banks, except that, if the
Majority Banks (or all Banks, as applicable) have instructed the Administrative
Agent not to take such action or assert such right, in no event shall the
Administrative Agent act contrary to such instructions.
Section 9.10 Responsibility Disclaimed. The Administrative Agent
shall be under no liability or responsibility whatsoever as Administrative
Agent:
(a) To the Borrower or any other Person or entity as a
consequence of any failure or delay in performance by or any breach by, any Bank
or Banks of any of its or their obligations under this Agreement;
(b) To any Bank or Banks, as a consequence of any failure
or delay in performance by, or any breach by, the Borrower or any other obligor
of any of its obligations under this Agreement or the Notes or any other Loan
Document; or
(c) To any Bank or Banks for any statements,
representations, or warranties in this Agreement, or any other document
contemplated by this Agreement or any information provided pursuant to this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, or for the validity, effectiveness, enforceability, or sufficiency of
this Agreement, the Notes, any other Loan Document, or any other document
contemplated by this Agreement.
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Section 9.11 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including fees and expenses of experts, agents, consultants,
and counsel), or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement, any other Loan Document, or any
other document contemplated by this Agreement or any action taken or omitted by
the Administrative Agent under this Agreement, any other Loan Document, or any
other document contemplated by this Agreement, except that no Bank shall be
liable to the Administrative Agent for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements resulting from the gross negligence or willful
misconduct of the Administrative Agent. The provisions of this Section 9.11
shall survive the termination of this Agreement.
Section 9.12 Credit Decision. Each Bank represents and warrants to
each other and to the Administrative Agent that:
(a) In making its decision to enter into this Agreement
and to make Advances it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower and
that it has made an independent credit judgment, and that it has not relied upon
information provided by the Administrative Agent; and
(b) So long as any portion of the Loans remains
outstanding, it will continue to make its own independent evaluation of the
financial condition and affairs of the Borrower.
Section 9.13 Successor Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent (which shall be
any Bank or a commercial bank organized under the laws of the United States of
America or any political subdivision thereof which has a combined capital and
reserves in excess of $250,000,000) as provided below, the Administrative Agent
may resign at any time by giving written notice thereof to the Banks and the
Borrower and may be removed at any time for cause by the Majority Banks. Upon
any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Majority Banks, and shall have accepted such
appointment within thirty (30) days after the retiring Administrative Agent's
giving of notice of resignation or the Majority Banks' removal of the retiring
Administrative Agent, then the retiring
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Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent which shall be any Bank or a commercial bank organized
under the laws of the United States of America or any political subdivision
thereof which has combined capital and reserves in excess of $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges,
duties, and obligations of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Section 9.13 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent.
ARTICLE 10 - Change in Circumstances Affecting LIBOR Advances.
Section 10.1 LIBOR Basis Determination Inadequate or Unfair.
Notwithstanding anything contained herein which may be construed to the
contrary, if with respect to any proposed LIBOR Advance for any Interest Period,
the Administrative Agent determines after consultation with the Banks that
deposits in dollars (in the applicable amount) are not being offered to each of
the Banks in the relevant market for such Interest Period, the Administrative
Agent shall forthwith give notice thereof to the Borrower and the Banks,
whereupon until the Administrative Agent notifies the Borrower that the
circumstances giving rise to such situation no longer exist, the obligations of
the Banks to make such type of LIBOR Advances shall be suspended.
Section 10.2 Illegality. If any applicable law, rule or
regulation, or any change therein, or any interpretation or change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall make it unlawful or impossible for any Bank to make, maintain or
fund its LIBOR Advances, such Bank shall so notify the Administrative Agent, and
the Administrative Agent shall forthwith notify the Borrower and the other
Banks. Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different lending office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. Upon receipt
of such notice, notwithstanding anything contained in Article 2 hereof, the
Borrower shall repay in full the then outstanding principal amount of each
affected LIBOR Advance of such Bank, together with accrued interest thereon,
either (a) on the last day of the then current Interest Period applicable to
such LIBOR Advance if such Bank may lawfully continue to maintain
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and fund such LIBOR Advance to such day or (b) immediately if such Bank may not
lawfully continue to fund and maintain such LIBOR Advance to such day.
Concurrently with repaying each affected LIBOR Advance of such Bank,
notwithstanding anything contained in Article 2 hereof, the Borrower shall
borrow a Prime Rate Advance from such Bank, and such Bank shall make such
Advance in an amount such that the outstanding principal amount of the Note
shall equal the outstanding principal amount of the Note immediately prior to
such repayment.
Section 10.3 Increased Costs.
(a) If any applicable law, rule or regulation, or any
change therein, or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency shall subject any
Bank to any tax, duty or other charge with respect to its obligation to make
LIBOR Advances, or shall change the basis of taxation of payments to any Bank of
the principal of or interest on its LIBOR Advances or in respect of any other
amounts due under this Agreement, in respect of its LIBOR Advances or its
obligation to make LIBOR Advances (except for changes in the rate of tax on the
overall net income of such Bank) imposed by the jurisdiction in which such
Bank's principal executive office is located and the result of any of the
foregoing is to increase the cost to such Bank of making or maintaining any such
LIBOR Advances, or to reduce the amount of any sum received or receivable by
such Bank under this Agreement or under the Note with respect thereto, then, on
the earlier of a date within ten (10) days after demand by such Bank or the
Maturity Date, the Borrower agrees to pay to such Bank such additional amount or
amounts as will compensate such Bank for such increased costs. Each Bank will
promptly notify the Borrower of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank to compensation pursuant to
this Section 10.3 and will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Bank, be otherwise disadvantageous to
such Bank.
(b) A certificate of any Bank claiming compensation under
this Section 10.3 and setting forth the additional amount or amounts to be paid
to it hereunder and calculations therefor shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods. If any Bank demands compensation under this
Section 10.3, the Borrower may at any time, upon at least five (5) Business
Days' prior notice to such Bank, prepay in full the then outstanding affected
LIBOR Advances of such Bank, together with accrued interest thereon to the date
of prepayment. Concurrently with prepaying such LIBOR Advances the Borrower
shall borrow
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a Prime Rate Advance, or a LIBOR Advance not so affected, from such Bank, and
such Bank shall make such Advance in an amount such that the outstanding
principal amount of the Note shall equal the outstanding principal amount of the
Note immediately prior to such prepayment.
Section 10.4 Effect On Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 suspending the obligation of any Bank to
make any LIBOR Advance, or requiring LIBOR Advances to be repaid or prepaid,
then, unless and until such Bank notifies the Borrower that the circumstances
giving rise to such repayment no longer apply, all LIBOR Advances which would
otherwise be made by such Bank shall, at the option of the Borrower, be made
instead as Prime Rate Advances.
Section 10.5 Claims for Increased Costs and Taxes. In the event
that any Bank shall decline to make LIBOR Advances pursuant to Section 10.1 or
10.2 hereof or shall have notified the Borrower that it is entitled to claim
compensation pursuant to Sections 2.9(d), 2.12 or 10.3 hereof (each such Bank
being an "Affected Bank"), the Borrower may designate a replacement bank (a
"Replacement Bank"), which Replacement Bank shall be reasonably acceptable to
the Administrative Agent, to assume the Commitment and the obligations of any
such Affected Bank hereunder, and to purchase the outstanding Note of such
Affected Bank and such Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or expense to, such Affected
Bank, for a purchase price equal to the outstanding principal amount of the
Loans of such Affected Bank plus all interest accrued and unpaid thereon and all
other amounts owing to such Affected Bank hereunder, including without
limitation, any amount which would be payable to such Affected Bank pursuant to
Section 2.10, and upon such assumption and purchase by the Replacement Bank,
such Replacement Bank shall be deemed to be a "Bank" for purposes of this
Agreement and such Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations or rights hereunder (other
than any obligations or rights which according to this Agreement shall survive
the termination of this Agreement). The Borrower hereby covenants and agrees
that upon the effectiveness of any assignment hereunder, it will promptly
provide to the Administrative Agent for the benefit of the relevant Banks duly
executed replacement promissory notes in the amount of each Bank's Commitment in
substantially the form of Exhibit A attached hereto. The Borrower shall, on the
effective date of such assignment, pay to the Administrative Agent the
assignment fee referred to in Section 11.5(b)(iv)(C).
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ARTICLE 11 - Miscellaneous.
Section 11.1 Notices.
(a) All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given three (3)
days after deposit in the mail, designated as certified mail, return receipt
requested, post-prepaid, or one (1) Business Day after being entrusted to a
reputable commercial overnight delivery service, or telecopy addressed to the
party to which such notice is directed at its address determined as provided in
this Section 11.1 All notices and other communications under this Agreement
shall be given to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
IRT PROPERTY COMPANY
200 Galleria Parkway N.W.
Suite 1400
Atlanta, Georgia 30339
Attn: Mary M. Thomas
Telecopy No.: (770) 988-8773
(ii) If to the Administrative Agent, to it at:
NationsBank, N.A.
600 Peachtree Street, N.E.
Suite 600
Atlanta, Georgia 30308
Attn: S. Ellen Porter
Telecopy No.: (404) 607-4145
with a copy to:
Powell, Goldstein, Frazer & Murphy LLP
191 Peachtree Street, N.E.
Sixteenth Floor
Atlanta, Georgia 30303
Attn: Douglas S. Gosden
Telecopy No.: (404) 572-6999
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(iii) If to the Banks or the Swing Line Lender, to
them at:
NationsBank, N.A.
600 Peachtree Street, N.E.
Suite 600
Atlanta, Georgia 30308
Attn: S. Ellen Porter
Telecopy No.: (404) 607-4145
AmSouth Bank
1900 Fifth Avenue North
9th Floor
Birmingham, Alabama 35203
Attn: Katherine L. McDavid
Commercial Real Estate Department
Telecopy No.: (205) 326-4075
or
P.O. Box 11007
Birmingham, Alabama 35288
Attn: Katherine L. McDavid
Commercial Real Estate Department
Telecopy No.: (205) 326-4075
First Union National Bank
First Union Center
(NCO166)
Charlotte, North Carolina 28288
Attn: John Schissel
Telecopy No.: (704) 383-6205
Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof.
(b) Any party hereto may change the address to which notices
shall be directed under this Section 11.1 by giving ten (10) days' written
notice of such change to the other parties. The Administrative Agent may rely on
the authority of any document delivered to it by any Bank and shall have no
obligation to make a determination as to authenticity or authorization with
respect to any Bank.
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Section 11.2 Expenses. The Borrower agrees to promptly pay:
(a) All reasonable costs and out-of-pocket expenses of
the Administrative Agent and the Banks on the Agreement Date in connection with
the syndication, preparation, negotiation, execution, and delivery of this
Agreement and the other Loan Documents executed on the Agreement Date and
related due diligence, the transactions contemplated hereunder and thereunder,
and the making of the initial Advance hereunder, including, but not limited to,
the reasonable fees and disbursements of counsel for the Banks and the
Administrative Agent;
(b) All reasonable costs and out-of-pocket expenses of
the Administrative Agent in connection with the preparation, negotiation of any
waiver, amendment, or consent by the Banks relating to this Agreement or the
other Loan Documents whether or not executed, including, but not limited to, the
reasonable fees and disbursements of counsel for the Banks and the
Administrative Agent;
(c) All reasonable costs and out-of-pocket costs and
expenses of collection if default is made in the payment of the Notes, which in
each case shall include reasonable fees and out-of-pocket expenses of counsel
for the Administrative Agent and the Banks, and the reasonable fees and
out-of-pocket expenses of counsel and of any experts, agents, or consultants of
the Administrative Agent and the Banks;
(d) All reasonable costs and expenses incurred by the
Administrative Agent pursuant to the provisions of Section 5.14 of this
Agreement;
(e) All taxes, assessments, general or special, and other
charges levied on, or assessed, placed or made against the Note or the
Obligations; and
(f) All reasonable out-of-pocket costs and expenses of
any restructuring, refinancing or "work out" of the transactions contemplated by
this Agreement, and of obtaining performance under this Agreement or the other
Loan Documents, and all reasonable out-of-pocket costs and expenses of
collection if default is made in the payment of the Note, which in each case
shall include reasonable fees and out-of-pocket expenses of special counsel for
the Administrative Agent and the Banks, and the reasonable fees and
out-of-pocket expenses of counsel and of any experts, agents, or consultants of
the Administrative Agent or any Bank.
Section 11.3 Waivers. The rights and remedies of the Administrative
Agent and the Banks under this Agreement and the other Loan Documents shall be
cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by
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the Administrative Agent, the Majority Banks, or the Banks in exercising any
right shall operate as a waiver of such right. The Administrative Agent and the
Banks expressly reserve the right to require strict compliance with the terms of
this Agreement in connection with any funding of a request for an Advance. In
the event the Banks decide to fund a request for an Advance at a time when the
Borrower is not in strict compliance with the terms of this Agreement, such
decision by the Banks shall not be deemed to constitute an undertaking by the
Banks to fund any further requests for Advances or preclude the Banks from
exercising any rights available to the Banks under the Loan Documents or at law
or equity. Any waiver or indulgence granted by the Banks or by the Majority
Banks shall not constitute a modification of this Agreement, except to the
extent expressly provided in such waiver or indulgence, or constitute a course
of dealing by the Banks at variance with the terms of the Agreement such as to
require further notice by the Banks of the Banks' intent to require strict
adherence to the terms of the Agreement in the future.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
after the Maturity Date (whether by acceleration or otherwise), the Banks, the
Swing Line Lender and any subsequent holder or holders of the Notes and the
Swing Line Note are hereby authorized by the Borrower at any time or from time
to time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set-off and to appropriate and apply any and
all deposits (general or special, time or demand, including, but not limited to,
Indebtedness evidenced by certificates of deposit, in each case whether matured
or unmatured) and any other Indebtedness at any time held or owing by the Banks,
the Swing Line Lender or such holder to or for the credit or the account of the
Borrower, against and on account of the obligations and liabilities of the
Borrower, to the Banks, the Swing Line Lender or such holder under this
Agreement, the Notes, the Swing Line Note, and any other Loan Document,
including, but not limited to, all claims of any nature or description arising
out of or connected with this Agreement, the Notes, the Swing Line Note, or any
other Loan Document, irrespective of whether or not (a) the Banks, the Swing
Line Lender or the holders of the Notes and the Swing Line Note shall have made
any demand hereunder or (b) the Banks and the Swing Line Lender shall have
declared the principal of and interest on the Loans, Notes and the Swing Line
Note and other amounts due hereunder to be due and payable as permitted by
Section 8.2 hereof and although said obligations and liabilities, or any of
them, shall be contingent or unmatured. Any sums obtained by any Bank, the Swing
Line Lender or by any subsequent holder of the Notes and the Swing Line Note
shall be subject to the application of payments provisions of Article 2 hereof.
Upon direction by the Administrative Agent, with the consent of the Majority
Banks, after the Maturity Date (whether by reason of acceleration or otherwise)
each Bank and the Swing Line Lender holding deposits of the Borrower shall
exercise its set-off rights as so directed.
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Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder or under the Notes.
(b) Each of the Banks may at any time enter into
assignment agreements or participations with respect to its interest hereunder
and under the other Loan Documents with one or more other banks or other
Persons, provided, that
(i) each Bank shall at all times maintain a
Commitment of not less than $10,000,000 (or lesser amount if a
reduction of the overall Commitment results in such Bank's
Commitment being less than $10,000,000);
(ii) all assignments (other than assignments
described in clause (iii) hereof) shall be in minimum
principal amounts of $10,000,000;
(iii) each Bank may sell assignments and
participations of up to one hundred percent (100%) of its
interest hereunder to (A) one or more wholly-owned affiliates
of such Bank, or (B) any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and any Operating Circular issued
by such Federal Reserve Bank (no such assignment shall relieve
such Bank from its obligations hereunder); and
(iv) all assignments and participations hereunder
(other than assignments and participations described in clause
(iii) hereof) shall be subject to the following additional
terms and conditions:
(A) No such assignment or participation
shall be sold without the consent of the
Administrative Agent, and prior to the occurrence of
a Default, the Borrower, which consent shall not be
unreasonably withheld.
(B) Any Person purchasing a
participation or an assignment of the Loans from any
Bank shall be required to represent and warrant that
its purchase shall not constitute a "prohibited
transaction" (as defined in Section 4.1(n) hereof).
(C) The Borrower, the Banks, and the
Administrative Agent agree that assignments permitted
hereunder (including the assignment of
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any Advance or portion thereof) may be made with all
voting rights, and shall be made pursuant to an
Assignment and Assumption Agreement. An
administrative fee of $2,500 shall be payable to the
Administrative Agent by the assigning Bank at the
time of any assignment hereunder.
(D) No participation agreement shall
confer any rights under this Agreement or any other
Loan Document to any purchaser thereof, or relieve
any issuing Bank from any of its obligations under
this Agreement, and all actions hereunder shall be
conducted as if no such participation had been
granted; provided, however, that any participation
agreement may confer on the participant the right to
approve or disapprove (within the same time periods
required of Banks hereunder) decreases in the
interest rate, increases or forgiveness of the
principal amount of the Loans participated in by such
participant, decreases in fees, and extensions of the
Maturity Date or other principal payment date for the
Loans.
(E) Each Bank agrees to provide the
Administrative Agent and the Borrower with prompt
written notice of any issuance of participations or
assignments of its interests hereunder.
(F) No assignment, participation or
other transfer of any rights hereunder or under the
Notes shall be effected that would result in any
interest requiring registration under the Securities
Act of 1933, as amended, or qualification under any
state securities law.
(G) No such assignment may be made to
any bank or other financial institution (x) with
respect to which a receiver or conservator
(including, without limitation, the Federal Deposit
Insurance Corporation, the Resolution Trust
Corporation or the Office of Thrift Supervision) has
been appointed or (y) that has failed to meet any of
the capital requirements of its primary regulator or
insurer.
(H) If applicable, each Bank shall, and
shall cause each of its assignees to provide to the
Administrative Agent on or prior to the Agreement
Date or effective date of any assignment, as the case
may be, an appropriate Internal Revenue Service form
as required by Applicable Law supporting such Bank's
position that no withholding by the Borrower or the
Administrative Agent for U.S. income tax payable
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by the Bank in respect of amounts received by it
hereunder is required. For purposes of this
Agreement, an appropriate Internal Revenue Service
form shall mean Form 1001 (Ownership Exemption or
Reduced Rate Certificate of the U.S. Department of
Treasury), or Form 4224 (Exemption from Withholding
of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States),
or any successor or related forms adopted by the
relevant U.S. taxing authorities.
(c) Except specifically set forth in Section 11.5(b)
hereof, nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(d) In the case of any participation, all amounts payable
by the Borrower under the Loan Documents shall be calculated and made in the
manner and to the parties hereto as if no such participation had been sold.
(e) The Borrower hereby covenants and agrees that upon
the effectiveness of any assignment hereunder, it will promptly provide to the
Administrative Agent for the benefit of the relevant Banks duly executed
replacement promissory notes in the amount of each Bank's Commitment in
substantially the form of Exhibit A attached hereto.
(f) No assignment, participation or other transfer of any
rights under the Swing Line Note shall be effected without the consent of both
the Swing Line Lender and the Borrower, which consent shall not be unreasonably
withheld.
Section 11.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute but one and the same
instrument.
Section 11.7 Governing Law. This Agreement and the Notes shall be
construed in accordance with and governed by the internal laws of the State of
Georgia.
Section 11.8 Severability. Any provision of this Agreement which
is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
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Section 11.9 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or
payable hereunder or under the Notes and the Swing Line Note exceed the maximum
rate of interest allowed by Applicable Law, and in the event any such payment is
inadvertently made by the Borrower or is inadvertently received by any Bank or
the Swing Line Lender, then such excess sum shall be returned forthwith to the
Borrower; provided, however, that if an Event of Default then exists, such
amounts shall be credited to principal of the Obligations. It is the express
intent hereof that the Borrower not pay and the Banks and Swing Line Lender not
receive, directly or indirectly in any manner whatsoever, interest in excess of
that which may legally be paid by the Borrower under Applicable Law.
(b) Notwithstanding the use by the Banks of the Prime
Rate, the LIBOR Rate and the Federal Funds Rate as reference rates for the
determination of interest on the Loans, the Banks shall be under no obligation
to obtain funds from any particular source in order to charge interest to the
Borrower at interest rates tied to such reference rates.
Section 11.11 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement, the Notes, and the Loan Documents to which the
Borrower is a party embody the entire Agreement and understanding among the
parties hereto and thereto and supersede all prior agreements, understandings,
and conversations relating to the subject matter hereof and thereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any
term hereof may be amended orally, nor may any provision hereof be waived orally
but only by an instrument in writing signed by the Majority Banks and, in the
case of an amendment, also by the Borrower, except that in the event of (a) any
increase in the amount of such Bank's Commitment, (b) any decrease (other than
pro rata) in the amount of the Commitment, (c) any change in the timing of, or
reduction of the amount of, payments of principal, interest, and fees due
hereunder or any amendment to the definition of "Applicable Margin," "Interest
Rate Basis" or "Maturity Date," (d) any release or impairment of any collateral
or any guaranty issued in favor of the Administrative Agent and the Banks with
respect to the Agreement and the Loans, (e) any waiver of any Event of Default
due to the failure by the Borrower to pay any sum due hereunder, or (f) any
amendment of this Section 11.12 or of the definition of Majority Banks, any
amendment or waiver may be made only by an instrument in writing signed by each
of the Banks and, in the case of an amendment, also by the Borrower. Any
amendment to any provision hereunder governing the rights, obligations,
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<PAGE> 81
or liabilities of the Administrative Agent in its capacity as such, may be made
only by an instrument in writing signed by such affected Person and by each of
the Banks. Any amendment to any provision hereunder governing the rights,
obligations, or liabilities of the Swing Line Lender may be made only by an
instrument in writing signed by the Swing Line Lender and the Borrower.
Section 11.13 Other Relationships. No relationship created
hereunder or under any other Loan Document shall in any way affect the ability
of the Administrative Agent and each Bank to enter into or maintain business
relationships with the Borrower, or any of its Affiliates, beyond the
relationships specifically contemplated by this Agreement and the other Loan
Documents.
Section 11.14 Bank Wiring Instructions. On or prior to the
Agreement Date, each Bank shall provide in writing to the Administrative Agent
appropriate information for wire transfer of funds to be paid to such Bank
hereunder, together with the names and sample signatures for an authorized
signatory for such Bank. Unless the Administrative Agent receives notice
(delivered in accordance with Section 11.1 hereof) from a Bank hereunder of any
change with respect to wire transfers or authorization, the Administrative Agent
shall be entitled to assume that there have been no changes with respect
thereto.
Section 11.15 Confidentiality. The Banks shall hold all non-public,
proprietary or confidential information (which has been identified as such by
the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential information
of this nature and in accordance with safe and sound banking practices;
provided, however, the Banks may make disclosure of any such information to such
of their examiners, affiliates, outside auditors, counsel, consultants,
appraisers and other professional advisors as may be reasonably necessary in
connection with this Agreement or as reasonably required by any proposed
syndicate member or any proposed transferee or participant in connection with
the contemplated transfer of any Note or participation therein or as required or
requested by any governmental authority or representative thereof or in
connection with the enforcement hereof or of any Loan Document or related
document or pursuant to legal process or with respect to any litigation between
or among the Borrower and any of the Banks; provided, however, that, as a
condition to receipt of any such information, each such affiliate, auditor,
counsel, consultant, appraiser, professional advisor, proposed transferee or
participant shall agree in writing to treat all such information as
confidential; and provided, further, that prior to any such disclosure to any
unrelated entity outside the ordinary course of business or pursuant to legal
process, the disclosing Bank shall give notice of such disclosure to the
Borrower and cooperate with the Borrower in any efforts to limit or restrict
such disclosure. In no event shall any Bank be obligated or required to return
any materials furnished to it by the
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<PAGE> 82
Borrower. The foregoing provisions shall not apply to a Bank with respect to
information that (i) is or becomes generally available to the public (other than
through such Bank), (ii) is already in the possession of such Bank on a
nonconfidential basis, or (iii) comes into the possession of such Bank in a
manner not known to such Bank to involve a breach of a duty of confidentiality
owing to the Borrower.
ARTICLE 12 - Waiver of Jury Trial.
Section 12.1 Waiver of Jury Trial. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE BANKS, HEREBY AGREE TO WAIVE AND HEREBY WAIVE THE RIGHT TO A TRIAL
BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE
BORROWER, ANY OF THE BANKS, THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE
SUCCESSORS OR ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY
OR INDIRECTLY OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN
DOCUMENTS AND THE RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1.
EXCEPT AS PROHIBITED BY LAW, EACH PARTY TO THIS AGREEMENT WAIVES ANY RIGHTS IT
MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THIS SECTION, ANY
SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN,
OR IN ADDITION TO, ACTUAL DAMAGES. EACH PARTY TO THIS AGREEMENT (i) CERTIFIES
THAT NEITHER ANY REPRESENTATIVE, AGENT OR ATTORNEY OF THE ADMINISTRATIVE AGENT
OR ANY BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE ADMINISTRATIVE
AGENT OR ANY BANK WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (ii) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION. THE PROVISIONS OF THIS SECTION HAVE
BEEN FULLY DISCLOSED BY AND TO THE PARTIES AND THE PROVISIONS SHALL BE SUBJECT
TO NO EXCEPTIONS. NO PARTY HAS IN ANY WAY AGREED WITH OR REPRESENTED TO ANY
OTHER PARTY THAT THE PROVISIONS OF THIS SECTION WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BANK]
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<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
BORROWER: IRT PROPERTY COMPANY, a Georgia
corporation
By: Mary M. Thomas
--------------------------------------
Its: Executive Vice President
-------------------------------------
ADMINISTRATIVE AGENT,
SWING LINE LENDER AND
BANKS: NATIONSBANK, N.A., as Administrative
Agent, Swing Line Lender and a Bank
By: S. Ellen Porter
--------------------------------------
Its: Vice President
-------------------------------------
AMSOUTH BANK, as a Bank
By: Katherine L. McDavid
--------------------------------------
Its: Assistant Vice President
-------------------------------------
FIRST UNION NATIONAL BANK, as a Bank
By: John A. Schissel
--------------------------------------
Its: Director
-------------------------------------
<PAGE> 84
SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this "Guaranty") is made as of the 9th day of
September, 1998 by IRT PARTNERS L.P., a Georgia limited partnership (the
"Guarantor"), in favor of NATIONSBANK, N.A., AMSOUTH BANK and FIRST UNION
NATIONAL BANK, as banks (collectively with their successors and assigns, the
"Banks"); NATIONSBANK, N.A., as swing line lender (in such capacity, the "Swing
Line Lender"); and NATIONSBANK, N.A., as administrative agent (in such capacity,
together with its successors and assigns, the "Administrative Agent") for the
Banks and the Swing Line Lender.
W I T N E S S E T H:
WHEREAS, IRT Property Company (the "Borrower"), the Banks, the Swing
Line Lender and the Administrative Agent are all parties to that certain Amended
and Restated Loan Agreement dated as of even date herewith (as further amended,
restated, supplemented or otherwise modified from time to time, the "Loan
Agreement"); and
WHEREAS, as a condition precedent to the effectiveness of the Loan
Agreement, the Guarantor is required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor is a Subsidiary (as such term is defined in the
Loan Agreement) of the Borrower; and
WHEREAS, the Borrower and the Guarantor are mutually dependent on each
other in the conduct of their respective businesses as an integrated operation,
and the Borrower has as one of its corporate purposes the obtaining of financing
needed from time to time by the Guarantor, with the Borrower's ability to obtain
such financing being dependent, in part, on the successful operations of and the
assets owned by the Guarantor; and
WHEREAS, the Guarantor has determined that its execution, delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, the Guarantor; and
WHEREAS, as a condition to the extension of the Loans by the Banks, the
Guarantor has agreed to execute this Guaranty guaranteeing the payment and
performance by the Borrower of its obligations and covenants under the Notes,
the Swing Line Note, the Loan Agreement and the other Loan Documents (the Loan
Agreement, the Notes, the Swing Line Note and the other Loan Documents, as
executed on the Agreement Date and as they may be amended, modified or extended
from time to time being hereinafter referred to as the "Guaranteed Agreements");
and
<PAGE> 85
WHEREAS, capitalized terms used herein and not otherwise defined shall
be used as defined in the Loan Agreement;
NOW, THEREFORE, in consideration of the above premises, Ten Dollars
($10.00) in hand paid and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantor hereby
unconditionally guarantees to the Banks, the Swing Line Lender and the
Administrative Agent full and prompt payment and performance when due whether at
maturity, by acceleration or otherwise, of all Obligations. Each Obligation
shall rank pari passu with each other Obligation.
The Guarantor, the Banks, the Swing Line Lender and the Administrative
Agent hereby further agree that:
1. Obligations Several. Regardless of whether any proposed guarantor
or any other Person or Persons is, are or shall become in any other way
responsible to the Banks, the Swing Line Lender, and the Administrative Agent,
or any of them, for or in respect of the Obligations or any part thereof, and
regardless of whether or not any Person or Persons now or hereafter responsible
to the Banks, the Swing Line Lender, and the Administrative Agent, or any of
them, for the Obligations or any part thereof, whether under this Guaranty or
otherwise, shall cease to be so liable, the Guarantor hereby declares and agrees
that this Guaranty is and shall continue to be a several obligation, shall be a
continuing guaranty and shall be operative and binding, and that the Guarantor
shall have no right of subrogation with respect to this Guaranty.
2. Guaranty Final. Upon the execution and delivery of this Guaranty
to the Administrative Agent, this Guaranty shall be deemed to be finally
executed and delivered by the Guarantor and shall not be subject to or affected
by any promise or condition affecting or limiting the Guarantor's liability, and
no statement, representation, agreement or promise on the part of the Banks, the
Swing Line Lender, the Administrative Agent, the Borrower, or any of them, or
any officer, employee or agent thereof, unless contained herein forms any part
of this Guaranty or has induced the making hereof or shall be deemed in any way
to affect the Guarantor's liability hereunder.
3. Amendment and Waiver. No alteration or waiver of this Guaranty or
of any of its terms, provisions or conditions shall be binding upon the parties
against whom enforcement is sought unless made in writing and signed by an
authorized officer of such party.
4. Dealings with Borrower. The Banks, the Swing Line Lender and the
Administrative Agent, or any of them, may, from time to time, without
exonerating or releasing the Guarantor in any way under this Guaranty, (i) take
such further or other security
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<PAGE> 86
or securities for the Obligations or any part thereof as the Banks, the Swing
Line Lender, and the Administrative Agent, or any of them, may deem proper,
consistent with the Loan Agreement, or (ii) release, discharge, abandon or
otherwise deal with or fail to deal with any guarantor of the Obligations or any
security or securities therefor or any part thereof now or hereafter held by the
Banks, the Swing Line Lender and the Administrative Agent, or any of them, or
(iii) consistent with the Loan Agreement, amend, modify, extend, accelerate or
waive in any manner any of the provisions, terms, or conditions of the
Guaranteed Agreements, all as the Banks, the Swing Line Lender and the
Administrative Agent, or any of them, may consider expedient or appropriate in
their sole discretion. Without limiting the generality of the foregoing, or of
Paragraph 5 hereof, it is understood that the Banks, the Swing Line Lender, and
the Administrative Agent, or any of them, may, without exonerating or releasing
the Guarantor, give up, or modify or abstain from perfecting or taking advantage
of any security for the Obligations and accept or make any compositions or
arrangements, and realize upon any security for the Obligations when, and in
such manner, as the Banks, the Swing Line Lender, and the Administrative Agent,
or any of them, may deem expedient, consistent with the Loan Agreement, all
without notice to the Guarantor.
5. Guaranty Unconditional. The Guarantor acknowledges and agrees
that no change in the nature or terms of the Obligations or any of the
Guaranteed Agreements, or other agreements, instruments or contracts evidencing,
related to or attendant with the Obligations (including any novation), nor any
determination of lack of enforceability thereof, shall discharge all or any part
of the liabilities and obligations of the Guarantor pursuant to this Guaranty;
it being the purpose and intent of the Guarantor, the Banks, the Swing Line
Lender, and the Administrative Agent that the covenants, agreements and all
liabilities and obligations of the Guarantor hereunder are absolute,
unconditional and irrevocable under any and all circumstances. Without limiting
the generality of the foregoing, the Guarantor agrees that until each and every
one of the covenants and agreements of this Guaranty is fully performed, the
Guarantor's undertakings hereunder shall not be released, in whole or in part,
by any action or thing which might, but for this paragraph of this Guaranty, be
deemed a legal or equitable discharge of a surety or guarantor, or by reason of
any waiver, omission of the Banks, the Swing Line Lender, and the Administrative
Agent, or any of them, or their failure to proceed promptly or otherwise, or by
reason of any action taken or omitted by the Banks, the Swing Line Lender, and
the Administrative Agent, or any of them, whether or not such action or failure
to act varies or increases the risk of, or affects the rights or remedies of,
the Guarantor or by reason of any further dealings between the Borrower, the
Banks, the Swing Line Lender, and the Administrative Agent, or any of them, or
any other guarantor or surety, and the Guarantor hereby expressly waives and
surrenders any defense to its liability hereunder, or any right of counterclaim
or offset of any nature or description which it may have or which may exist
based upon, and shall be deemed to have consented to, any of the foregoing acts,
omissions, things, agreements or waivers.
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<PAGE> 87
6. Set-off. The Banks, the Swing Line Lender, and the Administrative
Agent, or any of them, may, without demand or notice of any kind upon or to the
Guarantor, at any time or from time to time when any amount shall be due and
payable hereunder by the Guarantor, if the Borrower shall not have timely paid
its Obligations, set off and appropriate and apply any and all deposits (general
or special, time or demand, including, but not limited to, Indebtedness
evidenced by certificates of deposit, in each case whether matured or unmatured)
and any other Indebtedness at any time held or owing by the Banks, the Swing
Line Lender or such holder to or for the credit or the account of the Borrower,
against and on account of the obligations and liabilities of the Borrower, to
the Banks, the Swing Line Lender or such holder under the Loan Agreement, the
Notes the Swing Line Note and any other Loan Document, including, but not
limited to, all claims of any nature or description arising out of or connected
with the Loan Agreement, the Notes, the Swing Line Note or any other Loan
Document, irrespective of whether or not (a) the Banks, the Swing Line Lender or
the holders of the Notes and the Swing Line Note shall have made any demand
hereunder or (b) the Banks and the Swing Line Lender shall have declared the
principal of and interest on the Loans, Notes and the Swing Line Note and other
amounts due under the Loan Agreement to be due and payable and although said
obligations and liabilities, or any of them, shall be contingent or unmatured.
Upon direction by the Administrative Agent, with the consent of the Majority
Banks, after the Maturity Date (whether by reason of acceleration or otherwise),
each Bank and the Swing Line Lender holding deposits of the Guarantor shall
exercise its set-off rights as so directed.
7. Maximum Guaranteed Amount. The creation or existence from time to
time of Obligations in excess of the amount committed to or outstanding on the
date of this Guaranty is hereby authorized by the Guarantor, without notice to
the Guarantor, and shall in no way impair or affect this Guaranty or the rights
of the Banks, the Swing Line Lender, and the Administrative Agent, or any of
them, herein. It is the intention of the Guarantor, the Banks, the Swing Line
Lender, and the Administrative Agent, that the Guarantor's obligations hereunder
shall be in, but not in excess of, the Maximum Guaranteed Amount. The "Maximum
Guaranteed Amount" shall mean the maximum amount which could be paid out by the
Guarantor without rendering this Guaranty void or voidable under Applicable Law
including, without limitation, (a) Title 11 of the United States Code, as
amended, and (b) applicable state law regarding fraudulent conveyances or
fraudulent transfers.
8. Bankruptcy. Upon the bankruptcy or winding up or other
distribution of assets of the Borrower or any Subsidiary of the Borrower (other
than the Guarantor) or of any surety or guarantor for the Obligations, the
rights of the Banks, the Swing Line Lender, and the Administrative Agent, or any
of them, against the Guarantor shall not be affected or impaired by the omission
of the Banks, the Swing Line Lender, and the Administrative Agent, or any of
them, to prove its or their claim, as appropriate, or to prove its or their full
claim, as appropriate, and the Banks, the Swing Line Lender, and the
Administrative Agent
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<PAGE> 88
may prove such claims as they see fit and may refrain from proving any claim and
in their respective discretion they may value as they see fit or refrain from
valuing any security held by the Banks, the Swing Lender, and the Administrative
Agent, or any of them, without in any way releasing, reducing or otherwise
affecting the liability to the Banks, the Swing Line Lender, and the
Administrative Agent of the Guarantor.
9. Application of Payments. The Banks, the Swing Line Lender and the
Administrative Agent hereby acknowledge and agree that to the extent the Loan
Agreement and any of the Existing Senior Obligations (as defined below) are then
in default, any funds, payments, claims or distributions (the "Guaranty
Proceeds") actually received hereunder shall be made available for distribution
equally and ratably (based on the principal amounts then outstanding) among (a)
the holders of the Obligations and (b) the holders of the Existing Senior
Obligations. For purposes hereof, "Existing Senior Obligations" shall mean
Indebtedness for Money Borrowed owed or guaranteed in connection with any
public, unsecured and non-subordinated Indebtedness for Money Borrowed of the
Borrower issued in offerings registered under the Securities Act of 1933 or in
placements exempt from registration pursuant to Rule 144A or Regulations
thereunder or otherwise, which is outstanding on the date the Banks, the Swing
Line Lender and the Administrative Agent receive such Guaranty Proceeds. This
Section 9 shall not apply to any payments, funds, claims or distributions
received by the Administrative Agent, the Swing Line Lender or the Banks
directly or indirectly from the Borrower or any other Person other than from the
Guarantor hereunder. The Guarantor acknowledges and agrees with the
Administrative Agent, the Swing Line Lender and the Banks as follows:
(a) To the extent any Guaranty Proceeds are distributed to the
holders of the Existing Senior Obligations, the Obligations shall not be deemed
reduced by any such distribution, and the Guarantor will continue to make
payments pursuant to this Guaranty until such time as the Obligations have been
paid in full after taking into effect any distributions of Guaranty Proceeds to
the holders of Existing Senior Obligations;
(b) Nothing contained herein shall be deemed to limit, modify or
alter the rights of the Administrative Agent, the Swing Line Lender or any of
the Banks or be deemed to subordinate the Obligations to the Existing Senior
Obligations, nor give to any holder of Existing Senior Obligations any rights of
subrogation;
(c) Nothing contained herein shall be deemed for the benefit of
any holders of Existing Senior Obligations nor shall anything be construed to
impose on the Administrative Agent, the Swing Line Lender or any of the Banks
any fiduciary duties, obligations or responsibilities to the holders of the
Existing Senior Obligations; and
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<PAGE> 89
(d) This Guaranty is for the sole benefit of the Administrative
Agent, the Swing Line Lender and the Banks and their respective successors and
assigns, and any amounts received by the Banks, the Swing Line Lender and the
Administrative Agent, or any of them, from whatsoever source and applied toward
the payment of the Obligations shall be applied in such order of application as
is set forth in the Loan Agreement.
10. Waivers by Guarantor. The Guarantor hereby expressly waives: (a)
notice of acceptance of this Guaranty, (b) notice of the existence or creation
of all or any of the Obligations, (c) presentment, demand, notice of dishonor,
protest, and all other notices whatsoever, (d) all diligence in collection or
protection of or realization upon the Obligations or any part thereof, any
obligation hereunder, or any security for any of the foregoing and (e) all
rights of subrogation, indemnification, contribution and reimbursement against
the Borrower, all rights to enforce any remedy the Banks, the Swing Line Lender,
and the Administrative Agent, or any of them, may have against the Borrower and
any benefit of, or right to participate in, any collateral or security now or
hereinafter held by the Banks, the Swing Line Lender, and the Administrative
Agent, or any of them, in respect of the Obligations, even upon payment in full
of the Obligations. Any money received by the Guarantor in violation of this
Section shall be held in trust by the Guarantor for the benefit of the Banks,
the Swing Line Lender and the Administrative Agent. If a claim is ever made upon
the Banks, the Swing Line Lender, and the Administrative Agent, or any of them,
for the repayment or recovery of any amount or amounts received by any of them
in payment of any of the Obligations and such Person repays all or part of such
amount by reason of (a) any judgment, decree, or order of any court or
administrative body having jurisdiction over such Person or any of its property,
or (b) any good faith settlement or compromise of any such claim effected by
such Person with any such claimant, including the Borrower, then in such event
the Guarantor agrees that any such judgment, decree, order, settlement, or
compromise shall be binding upon the Guarantor, notwithstanding any revocation
hereof or the cancellation of any promissory note or other instrument evidencing
any of the Obligations, and the Guarantor shall be and remain obligated to such
Person hereunder for the amount so repaid or recovered to the same extent as if
such amount had never originally been received by such Person.
11. Assignment by the Banks, the Swing Line Lender or Administrative
Agent. To the extent permitted under the Loan Agreement, the Banks, the Swing
Line Lender, and the Administrative Agent may each, and without notice of any
kind, sell, assign or transfer all or any of the Obligations, and in such event
each and every immediate and successive assignee, transferee, or holder of all
or any of the Obligations, shall have the right to enforce this Guaranty, by
suit or otherwise, for the benefit of such assignee, transferee or holder as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits.
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<PAGE> 90
12. Remedies Cumulative. No delay by the Banks, the Swing Line
Lender, and the Administrative Agent, or any of them, in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Banks, the Swing Line Lender, and the Administrative Agent, or
any of them, of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy. No action by the Banks,
the Swing Line Lender, and the Administrative Agent, or any of them, permitted
hereunder shall in any way impair or affect this Guaranty. For the purpose of
this Guaranty, the Obligations shall include, without limitation, all
Obligations of the Borrower to the Banks, the Swing Line Lender, and the
Administrative Agent notwithstanding any right or power of any third party,
individually or in the name of the Borrower or any other Person, to assert any
claim or defense as to the invalidity or unenforceability of any such
Obligation, and no such claim or defense shall impair or affect the obligations
of the Guarantor hereunder.
13. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor, its successors and assigns and inure to the benefit of the successors
and assigns of the Banks, the Swing Line Lender, and the Administrative Agent.
The Guarantor shall not assign its rights or obligations under this Guaranty
without the consent of the Swing Line Lender and all the Banks, nor shall the
Guarantor amend this Guaranty, without the consent of the Swing Line Lender and
the Majority Banks.
14. Miscellaneous. This is a Guaranty of payment and not of
collection. In the event of a demand upon the Guarantor under this Guaranty, the
Guarantor shall be held and bound to the Banks, the Swing Line Lender, and the
Administrative Agent directly as debtor in respect of the payment of the amounts
hereby guaranteed. All reasonable costs and expenses, including attorneys' fees
and expenses, incurred by the Banks, the Swing Line Lender, and the
Administrative Agent, or any of them, in obtaining performance of or collecting
payments due under this Guaranty shall be deemed part of the Obligations
guaranteed hereby. Any notice or demand which the Banks, the Swing Line Lender,
and the Administrative Agent, or any of them, may wish to give shall be served
upon the Guarantor in the fashion prescribed for notices in Section 11.1 of the
Loan Agreement in care of the Borrower at the address for the Borrower set forth
in or otherwise provided pursuant to Section 11.1 of the Loan Agreement, and the
notice so sent shall be deemed to be served as set forth in Section 11.1 of the
Loan Agreement. The provisions of this Guaranty are for the benefit of the
Administrative Agent, the Banks and the Swing Line Lender and may not be relied
upon or enforced by any other Person without the express written consent of the
Banks, the Swing Line Lender and the Administrative Agent.
15. Loans Benefit Guarantor. The Guarantor expressly represents and
acknowledges that any financial accommodations by the Banks, the Swing Line
Lender, and the Administrative Agent, or any of them, to the Borrower,
including, without limitation the
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<PAGE> 91
extension of the Loans, are and will be of direct interest, benefit and
advantage to the Guarantor.
16. Solvency. The Guarantor expressly represents and warrants that as
of the date hereof and after giving effect to the transactions contemplated by
the Loan Documents (i) the capital of the Guarantor will not be unreasonably
small to conduct its business; (ii) the Guarantor will not have incurred debts,
or have intended to incur debts, beyond its ability to pay such debts as they
mature; and (iii) the present fair salable value of the assets of the Guarantor
is greater than the amount that will be required to pay its probable liabilities
(including debts) as they become absolute and matured. For purposes of this
Section 16, "debt" means any liability on a claim, and "claim" means (a) the
right to payment, whether or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, undisputed, legal,
equitable, secured or unsecured, or (b) the right to an equitable remedy for
breach of performance if such breach gives rise to a right to payment, whether
or not such right to an equitable remedy is reduced to judgment, fixed,
contingent, matured, unmatured, undisputed, secured or unsecured.
17. Visits and Inspections. The Guarantor covenants and agrees that
so long as any amount is owing on account of Obligations or otherwise pursuant
to this Guaranty, the Guarantor shall permit representatives of the Banks, the
Swing Line Lender, and the Administrative Agent, or any of them, to visit and
inspect properties of the Guarantor during normal business hours after
reasonable notice, inspect the Guarantor's books and records and discuss with
the principal officers of the Guarantor its businesses, assets, liabilities,
financial positions, results of operations and business prospects.
18. Governing Law. This Guaranty shall be construed in accordance
with and governed by the internal laws of the State of Georgia applicable to
contracts made and to be performed in the State of Georgia.
19. Jurisdiction and Venue. If any action or proceeding shall be
brought by the Administrative Agent in order to enforce any right or remedy
under this Guaranty, the Guarantor hereby consents to the jurisdiction of any
state or federal court of competent jurisdiction sitting within the area
comprising the Northern District of Georgia on the date of this Guaranty. The
Guarantor hereby agrees that service of the summons and complaint and all other
process which may be served in any such suit, action or proceeding may be
effected by mailing by registered mail a copy of such process to the offices of
the Borrower, as set forth in or otherwise provided pursuant to Section 11.1 of
the Loan Agreement, and that personal service of process shall not be required.
Nothing herein shall be construed to prohibit service of process by any other
method permitted by law, or the bringing of any suit, action or proceeding in
any other jurisdiction. The Guarantor agrees that final judgment in
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<PAGE> 92
such suit, action or proceeding shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment or in any other manner provided by
Applicable Law.
20. Waiver of Jury Trial. The Guarantor waives any right to a trial
by jury in any proceeding arising out of this Guaranty.
21. Time of the Essence. Time is of the essence with regard to the
Guarantor's performance of its obligations hereunder.
22. Administrative Agent. Each reference herein to any right granted
to, benefit conferred upon or power exercisable by the "Administrative Agent"
shall be a reference to the Administrative Agent for the benefit of itself, the
Swing Line Lender and all the Banks, and each action taken or right exercised
hereunder shall be deemed to have been so taken or exercised by the
Administrative Agent for the benefit of and on behalf of itself, the Swing Line
Lender and all the Banks.
23. Ratifications. The Guarantor hereby ratifies and affirms each
representation, warranty, covenant and other agreement made on its behalf by the
Borrower in the Loan Agreement.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<PAGE> 93
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
executed by their duly authorized officers as of the date first above written.
GUARANTOR: IRT PARTNERS L.P.
BY IRT PROPERTY COMPANY, ITS GENERAL PARTNER
By: /s/ Mary M. Thomas
------------------------------------------
Its: Executive Vice President
-----------------------------------
ADMINISTRATIVE AGENT,
SWING LINE LENDER AND
BANKS: NATIONSBANK, N.A., as Administrative Agent,
Swing Line Lender and as a Bank
By: /s/ S. Ellen Porter
------------------------------------------
Its: Vice President
-----------------------------------
AMSOUTH BANK, as a Bank
By: /s/ Katherine L. McDavid
------------------------------------------
Its: Assistant Vice President
-----------------------------------
FIRST UNION NATIONAL BANK, as a Bank
By: /s/ John A. Schissel
------------------------------------------
Its: Director
-----------------------------------
<PAGE> 1
EXHIBIT 99.2
AGREEMENT OF LIMITED
PARTNERSHIP
OF
IRT PARTNERS L.P.
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1 - DEFINED TERMS................................................................................. 1
ARTICLE 2 - ORGANIZATIONAL MATTERS........................................................................ 13
Section 2.1 Organization and Continuation...................................................... 13
Section 2.2 Name............................................................................... 14
Section 2.3 Registered Office and Agent; Principal Office...................................... 14
Section 2.4 Power of Attorney.................................................................. 14
Section 2.5 Term............................................................................... 15
ARTICLE 3 - PURPOSE....................................................................................... 16
Section 3.1 Purpose and Business............................................................... 16
Section 3.2 Powers............................................................................. 16
ARTICLE 4 - CAPITAL CONTRIBUTIONS......................................................................... 16
Section 4.1 Capital Contributions of the Partners.............................................. 16
Section 4.2 Issuances of Additional Partnership Interests...................................... 17
Section 4.3 No Preemptive Rights............................................................... 17
Section 4.4 No Interest........................................................................ 18
Section 4.5 No Withdrawal...................................................................... 18
ARTICLE 5 - DISTRIBUTIONS................................................................................. 18
Section 5.1 Requirement and Characterization of Distributions.................................. 18
Section 5.2 Amounts Withheld................................................................... 19
Section 5.3 Distributions Upon Liquidation..................................................... 19
ARTICLE 6 - ALLOCATIONS................................................................................... 19
Section 6.1 Allocations For Capital Account Purposes........................................... 19
Section 6.2 Other Allocation Rules............................................................. 21
Section 6.3 Special Allocation Rules........................................................... 23
ARTICLE 7 - MANAGEMENT AND OPERATIONS OF BUSINESS......................................................... 25
Section 7.1 Management......................................................................... 25
Section 7.2 Certificate of Limited Partnership................................................. 30
Section 7.3 Reimbursement of the General Partner............................................... 30
Section 7.4 Contracts with Affiliates.......................................................... 31
Section 7.5 Indemnification.................................................................... 32
Section 7.6 Liability of the General Partner................................................... 34
Section 7.7 Other Matters Concerning the General Partner....................................... 34
Section 7.8 Title to Partnership Assets........................................................ 35
Section 7.9 Reliance by Third Parties.......................................................... 35
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
ARTICLE 8 - RIGHTS AND OBLIGATIONS OF LIMITED PARTNER..................................................... 36
Section 8.1 Limitation of Liability............................................................ 36
Section 8.2 Management of Business............................................................. 36
Section 8.3 Outside Activities of Limited Partners............................................. 36
Section 8.4 Return of Capital.................................................................. 37
Section 8.5 Rights of Limited Partners Relating to the Partnership............................. 37
Section 8.6 Redemption Right................................................................... 38
ARTICLE 9 - BOOKS, RECORDS, ACCOUNTING AND REPORTS........................................................ 39
Section 9.1 Records and Accounting............................................................. 39
Section 9.2 Partnership Year................................................................... 40
Section 9.3 Reports............................................................................ 40
ARTICLE 10 - TAX MATTERS.................................................................................. 40
Section 10.1 Preparation of Tax Returns......................................................... 40
Section 10.2 Tax Elections...................................................................... 40
Section 10.3 Tax Matters Partner................................................................ 40
Section 10.4 Withholding........................................................................ 42
ARTICLE 11 - TRANSFERS AND WITHDRAWALS.................................................................... 42
Section 11.1 Transfer........................................................................... 42
Section 11.2 Transfer of General Partner's Partnership Interests................................ 43
Section 11.3 Limited Partners' Rights to Transfer............................................... 43
Section 11.4 Substituted Limited Partners....................................................... 44
Section 11.5 Assignees.......................................................................... 44
Section 11.6 General Provisions................................................................. 45
ARTICLE 12 - ADMISSION OF PARTNERS........................................................................ 45
Section 12.1 Admission of Successor General Partner............................................. 45
Section 12.2 Admission of Additional Limited Partners........................................... 46
Section 12.3 Amendment of Agreement and Certificate of Limited Partnership...................... 46
ARTICLE 13 - DISSOLUTION, LIQUIDATION AND TERMINATION..................................................... 47
Section 13.1 Dissolution........................................................................ 47
Section 13.2 Winding Up......................................................................... 47
Section 13.3 Negative Capital Accounts.......................................................... 49
Section 13.4 Deemed Distribution and Recontribution............................................. 50
Section 13.5 Rights of Limited Partners......................................................... 50
Section 13.6 Notice of Dissolution.............................................................. 50
Section 13.7 Termination of Partnership and Cancellation of Certificate of Limited
Partnership ................................................................................... 51
Section 13.8 Reasonable Time for Winding-Up..................................................... 51
Section 13.9 Waiver of Partition................................................................ 51
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 14 - AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS................................................. 51
Section 14.1 Amendments......................................................................... 51
Section 14.2 Meetings of the Partners........................................................... 53
ARTICLE 15 - GENERAL PROVISIONS........................................................................... 54
Section 15.1 Addresses and Notice............................................................... 54
Section 15.2 Titles and Captions................................................................ 54
Section 15.3 Pronouns and Plurals............................................................... 54
Section 15.4 Further Action..................................................................... 54
Section 15.5 Binding Effect..................................................................... 54
Section 15.6 Creditors.......................................................................... 54
Section 15.7 Waiver............................................................................. 54
Section 15.8 Counterparts....................................................................... 55
Section 15.9 Applicable Law..................................................................... 55
Section 15.10 Invalidity of Provisions........................................................... 55
Section 15.11 Entire Agreement................................................................... 55
ARTICLE 16 - CONSOLIDATION, MERGER OR SALE OF ASSETS OF THE GENERAL PARTNER............................... 55
Section 16.1 Triggering Events.................................................................. 55
Section 16.2 From and After the Occurrence of a Triggering Event................................ 56
Section 16.3 Application to Later Transactions.................................................. 56
Section 16.4 Waivers and Amendments............................................................. 57
EXHIBIT A - PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTERESTS......................................... 60
EXHIBIT B - VALUE OF CONTRIBUTED PROPERTY............................................................. 61
EXHIBIT E - NOTICE OF REDEMPTION...................................................................... 62
EXHIBIT F - ELECTING PARTNERS WITH DEFICIT CAPITAL ACCOUNT MAKE-UP REQUIREMENT........................ 64
</TABLE>
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<PAGE> 5
AGREEMENT OF
LIMITED PARTNERSHIP
OF
IRT PARTNERS L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP OF IRT PARTNERS L.P. (the
"Agreement"), dated as of July 14, 1998, is entered into by and among IRT
PROPERTY COMPANY, a Georgia corporation (the "General Partner"), IRT MANAGEMENT
COMPANY, a Georgia corporation (the "Initial Limited Partner"), and MIBEF
CORPORATE SERVICES, INC., as Trustee of (i) the Tamarac Trust No. 101 (the
"Tamarac Trust"), (ii) Riverside Trust No. 102 (the "Riverside Trust"), and
(iii) Charlotte Square Trust, Trust No. 103 (the "Charlotte Trust"), together
with any other Persons who become Partners in the Partnership as provided herein
(as such terms are defined hereinafter).
WHEREAS, the parties hereto have entered into the Contribution
Agreement (as hereinafter defined) pursuant to which, among other things, the
parties have agreed to establish the Partnership and to contribute assets to the
Partnership;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE 1
DEFINED TERMS
The following definitions shall be for all purposes, unless otherwise
clearly indicated to the contrary, applied to the terms used in this Agreement.
"Act" means the Georgia Revised Uniform Limited Partnership Act, as it
may be amended from time to time, and any successor to such statute.
"Additional Limited Partner" means a Person admitted to the Partnership
as a Limited Partner pursuant to Section 12.2 hereof and who is shown as such on
the books and records of the Partnership.
"Adjusted Capital Account" means the Capital Account maintained for
each Partner as of the end of each Partnership Year (i) increased by any amounts
which such Partner is obligated to restore pursuant to any provision of this
Agreement or is deemed to be obligated to restore pursuant to the penultimate
sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5) and (ii)
decreased by the items described in Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5), and (6). The foregoing definition of Adjusted
Capital Account is intended to comply with the
<PAGE> 6
provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
"Adjusted Capital Account Deficit" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Adjusted Capital Account as of
the end of the relevant Partnership Year.
"Adjusted Property" means any property the Carrying Value of which has
been adjusted pursuant to Exhibit B hereof.
"Affiliate" means, with respect to any Person, (i) any Person directly
or indirectly controlling, controlled by or under common control with such
Person, (ii) any Person owning or controlling ten percent (10%) or more of the
outstanding voting interests of such Person, (iii) any Person of which such
Person owns or controls ten percent (10%) or more of the voting interests, or
(iv) any officer, director, general partner or trustee of such Person or of any
Person referred to in clauses (i), (ii), (iii) above.
"Affiliate Limited Partner" means any Limited Partner including the
Initial Limited Partner that is an Affiliate of the General Partner or that is a
General Partner, provided however, for purposes of allocations and distributions
under Articles 5, 6 and 13 hereof, Units held by the General Partner or its
Affiliates as a result of conversions or redemptions of Partnership Units shall
be deemed not held by an Affiliated Limited Partner".
"Agreed Value" means (i) in the case of any Contributed Property set
forth in Exhibit B and as of the time of its contribution to the Partnership,
the Agreed Value of such property as set forth in Exhibit B, which value shall
reflect any liabilities either assumed by the Partnership upon such contribution
or to which such property is subject when contributed, (ii) in the case of any
Contributed Property not set forth in Exhibit B and as of the time of its
contribution to the Partnership, the 704(c) Value of such property, reduced by
any liabilities either assumed by the Partnership upon such contribution or to
which such property is subject when contributed, and (iii) in the case of any
property distributed to a Partner by the Partnership, the Partnership's Carrying
Value of such property at the time such property is distributed, reduced by any
indebtedness either assumed by such Partner upon such distribution or to which
such property is subject at the time of distribution as determined under Section
752 of the Code and the Regulations thereunder.
"Agreement" means this Agreement of Limited Partnership, as it may be
amended, supplemented or restated from time to time.
"Articles of Incorporation" means the Amended and Restated Articles of
Incorporation of the General Partner filed in the State of Georgia and amended
or restated from time to time.
"Assignee" means a Person to whom one or more Partnership Units have
been transferred in a manner permitted under this Agreement, but who has not
become a Substituted Limited Partner, and who has the rights set forth in
Section 11.5.
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<PAGE> 7
"Available Cash" means with respect to any period for which such
calculation is being made:
(a) all cash revenues and funds received by the Partnership from
whatever source plus the amount of any reduction (including, without limitation,
a reduction resulting because the General Partner determines such amounts are no
longer necessary) in reserves of the Partnership, which reserves are established
in clause (b)(iv) below;
(b) less the sum of the following (except to the extent any such
payment is expressly subordinate to the distribution of some portion of
Available Cash):
(i) all interest, principal and other debt payments made
during such period by the Partnership,
(ii) all other cash expenditures (including capital
expenditures) made by the Partnership during such period,
(iii) investments in any entity (including loans made thereto)
to the extent that such investments are not otherwise described in
clauses (b)(i) or (ii), and
(iv) the amount of any increase in reserves established
during such period which the General Partner determines is necessary or
appropriate in its sole and absolute discretion.
Notwithstanding the foregoing, Available Cash shall not include any
cash received or reductions in reserves, or take into account any disbursements
made or reserves established, after commencement of the dissolution and
liquidation of the Partnership.
"Book-Tax Disparities" means, with respect to any item of Contributed
Property or Adjusted Property, as of the date of any determination, the
difference between the Carrying Value of such Contributed Property or Adjusted
Property and the adjusted basis thereof for federal income tax purposes as of
such date. A Partner's share of the Partnership's Book-Tax Disparities in all of
its Contributed Property and Adjusted Property will be reflected by the
difference between such Partner's Capital Account balance and the hypothetical
balance of such Partner's Capital Account computed as if it had been maintained
strictly in accordance with federal income tax accounting principles.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in Atlanta, Georgia, Charlotte, North Carolina, Dallas,
Texas, and New York, New York are authorized or required by law to close.
"Capital Account" means the separate accounting entry maintained for a
Partner in accordance with the rules of Regulations Section 1.704-l(b)(2)(iv).
Such Capital Account shall be
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<PAGE> 8
increased by (i) the amount of all Capital Contributions and any other deemed
contributions made by such Partner to the Partnership pursuant to this Agreement
and (ii) all items of Partnership income and gain (including income and gain
exempt from tax) computed in accordance with the definition of Net Income or Net
Loss and allocated to such Partner pursuant to Article 6 hereof, and decreased
by (x) the amount of cash or Agreed Value of all actual and deemed distributions
of cash or property made to such Partner pursuant to this Agreement and (y) all
items of Partnership deduction and loss computed in accordance with the
definition of Net Income or Net Loss and allocated to such Partner pursuant to
Article 6 hereof. A transferee (including an Assignee) of a Partnership Unit
shall succeed to a pro rata portion of the Capital Account of the transferor;
provided, however, that, if the transfer causes a termination of the Partnership
under Section 708(b)(1)(B) of the Code, the Partnership's properties shall be
deemed to have been transferred in accordance with Regulations Section 1.708-1
and appropriate adjustments resulting from such deemed transfers shall be made
hereunder. The provisions of this Agreement relating to the maintenance of
Capital Accounts are intended to comply with Regulations Section 1.704-1(b), and
shall be interpreted and applied in a manner consistent with such Regulations.
In the event the General Partner shall determine that it is prudent to modify
the manner in which the Capital Accounts, or any debits or credits thereto
(including, without limitation, debits or credits relating to liabilities which
are secured by contributed or distributed property or which are assumed by the
Partnership, the General Partner, or any Limited Partners) are computed in order
to comply with such Regulations, the General Partner may make such modification
without regard to Article 14 of the Agreement, provided that it is not likely to
have a material effect on the amounts distributable to any Person pursuant to
Article 13 of the Agreement upon the dissolution of the Partnership. The General
Partner also shall (i) make any adjustments that are necessary or appropriate to
maintain equality between the Capital Accounts of the Partners and the amount of
Partnership capital reflected on the Partnership's balance sheet, as computed
for book purposes in accordance with Regulations Section 1.704-1(b)(2)(iv)(q),
and (ii) make any appropriate modifications in the event unanticipated events
might otherwise cause this Agreement not to comply with Regulations Section
1.704-1(b).
"Capital Contribution" means, with respect to any Partner, any cash,
cash equivalents or the Agreed Value of Contributed Property which such Partner
contributes or is deemed to contribute to the Partnership pursuant to Sections
4.1 or 4.2 hereof and which shall be treated as a contribution to the
Partnership pursuant to Section 721(a) of the Code.
"Carrying Value" means (i) with respect to a Contributed Property or
Adjusted Property, the 704(c) Value of such property, reduced (but not below
zero) by all Depreciation with respect to such Property charged to the Partners'
Capital Accounts following the contribution of or adjustment with respect to
such Property, and (ii) with respect to any other Partnership property, the
adjusted basis of such property for federal income tax purposes, all as of the
time of determination. The Carrying Value of any property shall be adjusted from
time to time in accordance with Section 6.3 hereof, and to reflect changes,
additions or other adjustments to the Carrying Value for dispositions and
acquisitions of Partnership properties, as deemed appropriate by the General
Partner.
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<PAGE> 9
"Cash Amount" means an amount of cash per Partnership Unit equal to the
Value on the Valuation Date of the REIT Shares Amount plus the amount, if any,
per Unit, in the Redeeming Partner's Cumulative Unpaid Accrued Return Account
and Cumulative Unpaid Priority Distribution Account.
"Certificate" means the Certificate of Limited Partnership relating to
the Partnership filed in the office of the Georgia Secretary of State, as
amended from time to time in accordance with the terms hereof and the Act.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, as interpreted by the applicable regulations
thereunder. Any reference herein to a specific section or sections of the Code
shall be deemed to include a reference to any corresponding provision of future
law.
"Consent" means the consent or approval of a proposed action by a
Partner given in accordance with Article 14 hereof.
"Contributed Property" means each property or other asset, in such form
as may be permitted by the Act, but excluding cash, contributed or deemed
contributed to the Partnership. Once the Carrying Value of a Contributed
Property is adjusted pursuant to Section 6.3(g) hereof, such property shall no
longer constitute a Contributed Property for purposes of Section 6.3(g) hereof,
but shall be deemed an Adjusted Property for such purposes.
"Contribution Agreement" means that certain Contribution Agreement,
dated as of June 26, 1998, by and among the General Partner and MIBEF Corporate
Services, Inc., as Trustee of the Trusts.
"Conversion Factor" means 1.0, provided that in the event that the
General Partner (i) declares or pays a distribution on its outstanding REIT
Shares in REIT Shares or makes a distribution to all holders of its outstanding
REIT Shares in REIT Shares; (ii) subdivides its outstanding REIT Shares; or
(iii) combines its outstanding REIT Shares into a smaller number of REIT Shares,
the Conversion Factor shall be adjusted by multiplying the Conversion Factor by
a fraction, the numerator of which shall be the number of REIT Shares issued and
outstanding on the effective date for such distribution, subdivision or
combination assuming for such purpose that such distribution, subdivision or
combination has occurred as of such time, and the denominator of which shall be
the actual number of REIT Shares (determined without the above assumption)
issued and outstanding on the record date for such distribution, subdivision or
combination. Any adjustment to the Conversion Factor shall become effective
immediately after the effective date of such event retroactive to the record
date, if any, for such event.
"Cumulative Unpaid Accrued Return Account" means, with respect to any
Limited Partner other than an Affiliate Limited Partner, an amount, if any,
equal to (i) the interest that would accrue at the Prime Rate plus two percent
(2%) on such Partner's Cumulative Unpaid Priority Distribution Account
outstanding from time to time, less (ii) the cumulative amount of
-5-
<PAGE> 10
Available Cash distributed with respect to the Limited Partnership Units of such
Partner in reduction of such Cumulative Unpaid Accrued Return Account pursuant
to Section 5.1(a)(2). The Cumulative Unpaid Accrued Return Account shall also be
reduced to the extent the value of such account is paid through payment of the
REIT Shares Amount.
"Cumulative Unpaid Priority Distribution Account" means, with respect
to any Limited Partner other than an Affiliate Limited Partner, an amount, if
any, equal to (i) the aggregate of all Priority Distribution Amounts for Limited
Partnership Units held by such Limited Partner, less (ii) the cumulative amount
of Available Cash distributed with respect to such Limited Partnership Units of
such Limited Partner in reduction of such Cumulative Unpaid Priority
Distribution Account pursuant to Sections 5.1(a)(1) and 5.1(a)(3). The
Cumulative Unpaid Priority Distribution Account shall also be reduced to the
extent the value of such account is paid through payment of the REIT Shares
Amount.
"Depreciation" means, for each Partnership Year or other period an
amount equal to the federal income tax depreciation, amortization, or other cost
recovery deduction allowable with respect to an asset for such year, except that
if the Carrying Value of an asset differs from its adjusted basis for federal
income tax purposes at the beginning of such year or other period, Depreciation
shall be an amount which bears the same ratio to such beginning Carrying Value
as the federal income tax depreciation, amortization, or other cost recovery
deduction for such year bears to such beginning adjusted tax basis; provided,
however that if the federal income tax depreciation, amortization, or other cost
recovery deduction for such year is zero, Depreciation shall be determined with
reference to such beginning Carrying Value using any reasonable method selected
by the General Partner.
"Dissolution Event" has the meaning set forth in Section 13.1.
"General Partner" means IRT Property Company, in its capacity as the
general partner of the Partnership, or its permitted successors as general
partner of the Partnership, which permitted successors shall include any
Affiliate of IRT Property Company and any successor that becomes a general
partner of the Partnership pursuant to Section 11.2 hereof.
"General Partner Interest" means a Partnership Interest held by the
General Partner that is a general partnership interest. A General Partner
Interest may be expressed as a number of Partnership Units.
"IRS" means the Internal Revenue Service, which administers the
internal revenue laws of the United States.
"Immediate Family" means, with respect to any natural Person, such
natural Person's spouse and such natural Person's natural or adoptive parents,
descendants, nephews, nieces, brothers, and sisters.
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<PAGE> 11
"Incapacity" or "Incapacitated" means, (i) as to any individual
Partner, death, total physical disability or entry by a court of competent
jurisdiction adjudicating him incompetent to manage his Person or his estate;
(ii) as to any corporation which is a Partner, the filing of a certificate of
dissolution, or its equivalent, for the corporation or the revocation of its
charter; (iii) as to any partnership which is a Partner, the dissolution and
commencement of winding up of the partnership; (iv) as to any estate which is a
Partner, the distribution by the fiduciary of the estate's entire interest in
the Partnership; (v) as to any trustee of a trust which is a Partner, the
termination of the trust (but not the substitution of a new trustee); or (vi) as
to any Partner, the bankruptcy of such Partner. For purposes of this definition,
bankruptcy of a Partner shall be deemed to have occurred when (A) the Partner
commences a voluntary proceeding seeking liquidation, reorganization or other
relief under any bankruptcy, insolvency or other similar law now or hereafter in
effect, (B) the Partner is adjudged as bankrupt or insolvent, or a final and
nonappealable order for relief under any bankruptcy, insolvency or similar law
now or hereafter in effect has been entered against the Partner, (C) the Partner
executes and delivers a general assignment for the benefit of the Partner's
creditors, (D) the Partner files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against the
Partner in any proceeding of the nature described in clause (B) above, (E) the
Partner seeks, consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for the Partner or for all or any substantial part of the
Partner's properties, (F) any proceeding seeking liquidation, reorganization or
other relief of or against such Partner under any bankruptcy, insolvency or
other similar law now or hereafter in effect has not been dismissed within one
hundred twenty (120) days after the commencement thereof, (G) the appointment
without the Partner's consent or acquiescence of a trustee, receiver or
liquidator has not been vacated or stayed within ninety (90) days of such
appointment, or (H) an appointment referred to in clause (G) which has been
stayed is not vacated within ninety (90) days after the expiration of any such
stay.
"Indemnitee" means (i) any Person made a party to a proceeding by
reason of (A) his status as the General Partner, or a director or officer of the
Partnership or the General Partner, or (B) his or its liabilities, pursuant to a
loan guarantee or otherwise, for any indebtedness of the Partnership or any
Subsidiary of the Partnership (including, without limitation, any indebtedness
which the Partnership or any Subsidiary of the Partnership has assumed or taken
assets subject to), and (ii) such other Persons (including Affiliates of the
General Partner or the Partnership) as the General Partner may designate from
time to time (whether before or after the event giving rise to potential
liability), in its sole and absolute discretion.
"Initial Limited Partner" means IRT Management Company.
"Limited Partner" means the Initial Limited Partner and any Person
named as a Limited Partner in Exhibit A attached hereto, as such Exhibit may be
amended from time to time, or any Substituted Limited Partner or Additional
Limited Partner, in such Person's capacity as a Limited Partner in the
Partnership.
"Limited Partner Interest" means a Partnership Interest of a Limited
Partner in the Partnership representing a fractional part of the Partnership
Interests of all Partners and includes
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<PAGE> 12
any and all benefits to which the holder of such a Partnership Interest may be
entitled as provided in this Agreement, together with all obligations of such
Person to comply with the terms and provisions of this Agreement. A Limited
Partner Interest may be expressed as a number of Partnership Units.
"Liquidator" has the meaning set forth in Section 13.2.
"Net Income" or "Net Loss" means, for any Partnership Year or any
portion of a Partnership Year, the excess, if any, or deficiency, if any, as the
case may be of the Partnership's items of income and gain for such Partnership
Year over the Partnership's items of loss and deduction for such Partnership
Year. For purposes of computing the amount of Net Income or Net Loss, unless
otherwise specified in this Agreement, the determination, recognition and
classification of any such item shall be the same as its determination,
recognition and classification for federal income tax purposes determined in
accordance with Section 703(a) of the Code (for this purpose all items of
income, gain, loss or deduction required to be stated separately pursuant to
Section 703(a)(1) of the Code shall be included in taxable income or loss), with
the following adjustments:
(1) Except as otherwise provided in Regulations Section
1.704-l(b)(2)(iv)(m), the computation of all items of
income, gain, loss and deduction shall be made
without regard to any election under Section 754 of
the Code which may be made by the Partnership,
provided that the amounts of any adjustments to the
adjusted bases of the assets of the Partnership made
pursuant to Section 734 of the Code as a result of
the distribution of property by the Partnership to a
Partner (to the extent that such adjustments have not
previously been reflected in the Partners' Capital
Accounts) shall be reflected in the Capital Accounts
of the Partners in the manner and subject to the
limitations prescribed in Regulations Section
1.704-1(b)(2)(iv)(m). Any income of the Partnership
that is exempt from federal income tax and not
otherwise taken into account in computing Net Income
or Net Loss pursuant to this definition shall be
added to such Net Income or Net Loss.
(2) The computation of all items of income, gain, loss
and deduction shall be made without regard to the
fact that items described in Sections 705(a)(1)(B)
and 705(a)(2)(B) of the Code are not includible in
gross income or are neither currently deductible nor
capitalized for federal income tax purposes.
(3) Any income, gain or loss attributable to the taxable
disposition of any Partnership property shall be
determined as if the adjusted basis of such property
as of such date of disposition were equal in amount
to the Partnership's Carrying Value with respect to
such property as of such date.
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(4) In lieu of the depreciation, amortization and other
cost recovery deductions taken into account in
computing such taxable income or loss, there shall be
taken into account Depreciation for such fiscal year.
(5) In the event the Carrying Value of any Partnership
Asset is adjusted pursuant to Section 1.D hereof, the
amount of any such adjustment shall be taken into
account as gain or loss from the disposition of such
asset.
(6) Any items specifically allocated under Section 6.1(c)
or Section 6.3 shall not be taken into account.
"Nonrecourse Built-in Gain" means, with respect to any Contributed
Properties or Adjusted Properties that are subject to a mortgage or negative
pledge securing a Nonrecourse Liability, the amount of any taxable gain that
would be allocated to the Partners pursuant to Section 6.3(b) if such properties
were disposed of in a taxable transaction in full satisfaction of such
liabilities and for no other consideration.
"Nonrecourse Deductions" has the meaning set forth in Regulations
Section 1.704-2(b)(1), and the amount of Nonrecourse Deductions for a
Partnership Year shall be determined in accordance with the rules of Regulations
Section 1.704-2(c).
"Nonrecourse Liability" has the meaning set forth in Regulations
Section 1.752-l(a)(2).
"Notice of Redemption" means the Notice of Redemption substantially in
the form of Exhibit E to this Agreement.
"Original Limited Partner" means a Limited Partner, other than the
General Partner and the Initial Limited Partner, who is a Partner on the date of
this Agreement and any transferee or assignee of the Units received by such a
Limited Partners on the date of this Agreement, and which has been admitted as
Limited Partner to the Partnership pursuant to, and consistent with Section
11.3.
"Partner" means a General Partner or a Limited Partner, and "Partners"
means the General Partner and the Limited Partners collectively.
"Partner Minimum Gain" means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with Regulations Section 1.704-2(i)(3).
"Partner Nonrecourse Debt" has the meaning set forth in Regulations
Section 1.704-2(b)(4).
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"Partner Nonrecourse Deductions" has the meaning set forth in
Regulations Section 1.704-2(i)(2), and the amount of Partner Nonrecourse
Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year
shall be determined in accordance with the rules of Regulations Section
1.704-2(i)(2).
"Partnership" means the limited partnership formed under the Act and
pursuant to this Agreement and any successor thereto.
"Partnership Interest" means an ownership interest in the Partnership
representing a Capital Contribution by either a Limited Partner or the General
Partner and includes any and all benefits to which the holder of such a
Partnership Interest may be entitled as provided in this Agreement, together
with all obligations of such Person to comply with the terms and provisions of
this Agreement. A Partnership Interest may be expressed as a number of
Partnership Units.
"Partnership Minimum Gain" has the meaning set forth in Regulations
Section 1.704-2(b)(2), and the amount of Partnership Minimum Gain, as well as
any net increase or decrease in a Partnership Minimum Gain, for a Partnership
Year shall be determined in accordance with the rules of Regulations Section
1.704-2(d).
"Partnership Record Date" means the record date established by the
General Partner for a distribution to its holders of REIT Shares.
"Partnership Unit" means a fractional, undivided share of the
Partnership Interests of all Partners issued pursuant to Sections 4.1 and 4.2.
The number of Partnership Units outstanding and the Percentage Interest in the
Partnership represented by such Units are set forth in Exhibit A attached
hereto, as such Exhibit may be amended from time to time. The ownership of
Partnership Units shall be evidenced as the General Partner from time to time
determines. In no event shall the holding of a Partnership Unit constitute the
holder or assignee thereof as a shareholder or creditor of IRT Property Company,
and no such person shall have any rights or privileges as a shareholder or
creditor of IRT Property Company as a result of being the holder or assignee of
such Partnership Units.
"Partnership Year" means the fiscal year of the Partnership, which
shall be the calendar year.
"Percentage Interest" means, as to a Partner, its interest in the
Partnership as determined by dividing the Partnership Units owned by such
Partner by the total number of Partnership Units then outstanding and as
specified in Exhibit A attached hereto, as such Exhibit may be amended from time
to time.
"Person" means an individual or a corporation, partnership, limited
liability company, trust, unincorporated organization, association or other
entity.
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"Prime Rate" means, on any date, a fluctuating rate of interest per
annum equal to the rate of interest most recently established by NationsBank,
N.A. (or, at the General Partner's election, another major lender to the
Partnership, at the office with which the Partnership deals), as its prime rate
of interest for loans in United States dollars.
"Priority Distribution Amount" means with respect to any Limited
Partnership Unit (other than Units held by an Affiliate Limited Partner)
outstanding on a Partnership Record Date the product of (i) the cash
distribution per REIT Share (including any distribution designated by the
General Partner as capital gain pursuant to Section 857(b)(3)(C) of the Code or
a return of capital) declared by the General Partner on the Partnership Record
Date, and (ii) the Conversion Factor.
"Recapture Income" means any gain recognized by the Partnership
(computed without regard to any adjustment required by Section 734 or Section
743 of the Code) upon the disposition of any property or asset of the
Partnership, which gain is characterized for federal income tax purposes as
ordinary income because it represents the recapture of deductions previously
taken with respect to such property or asset.
"Recourse Liabilities" has the meaning set forth in Regulations Section
1.752-1(a)(1).
"Redeeming Partner" shall have the meaning set forth in Section 8.6
hereof.
"Redemption Right" shall have the meaning set forth in Section 8.6
hereof.
"Regulations" means the Income Tax Regulations, including the Temporary
Regulations, promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"REIT" means a real estate investment trust under Section 856 of the
Code.
"REIT Share" shall mean a share of the $1.00 par value common stock of
the General Partner.
"REIT Shares Amount" shall mean a number of REIT Shares equal to the
product of the number of Partnership Units offered for redemption by a Redeeming
Partner, multiplied by the Conversion Factor, provided that in the event the
General Partner issues to all holders of REIT Shares rights, options, warrants
or convertible or exchangeable securities entitling the shareholders to
subscribe for or purchase REIT Shares, or any other securities or property
(collectively, the "Rights"), then the REIT Shares Amount shall also include
such Rights that a holder of that number of REIT Shares would be entitled to
receive. In the event that the Redeeming Partner has a positive Cumulative
Unpaid Accrued Return Account or a positive Cumulative Unpaid Priority
Distribution Account, the REIT Shares Amount shall also include the number of
REIT Shares arrived at by dividing (x) the product of the positive amounts in
the Redeeming Partner's Cumulative Unpaid Accrued Return Account and Cumulative
Unpaid
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Priority Return Account and a fraction the numerator of which is the
number of Partnership Units Offered and the denominator of which is the total
Partnership Units owned by such Redeeming Partner, by (y) the Value on the
Valuation Date of a REIT share.
"Residual Gain" or "Residual Loss" means any item of gain or loss, as
the case may be, of the Partnership recognized for federal income tax purposes
resulting from a sale, exchange or other disposition of Contributed Property or
Adjusted Property, to the extent such item of gain or loss is not allocated
pursuant to Section 6.3(g)(2)(i)(A) or 6.3(g)(2)(ii)(A) to eliminate Book-Tax
Disparities.
"704(c) Value" of any Contributed Property means the value of such
property as set forth in Exhibit B or if no value is set forth in Exhibit B, the
fair market value of such property or other consideration at the time of
contribution as determined by the General Partner using such reasonable method
of valuation as it may adopt. Subject to Section 6.2(c) hereof, the General
Partner shall, in its sole and absolute discretion, use such method as it deems
reasonable and appropriate to allocate the aggregate of the 704(c) Values of
Contributed Properties in a single or integrated transaction among the separate
properties on a basis proportional to their respective fair market values.
"Securities Act" shall mean the Federal Securities Act of 1933, as
amended, and the rules and regulations of the Securities and Exchange Commission
thereunder.
"Specified Redemption Date" means the tenth (10th) Business Day after
receipt by the General Partner of a Notice of Redemption.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, trust or other entity of which a
majority of either (i) the voting power of the voting equity securities or (ii)
the outstanding equity interests, is owned, directly or indirectly, by such
Person.
"Substituted Limited Partner" means a Person who is admitted as a
Limited Partner to the Partnership pursuant to Section 11.4.
"Terminating Capital Transaction" means any sale or other disposition
of all or substantially all of the assets of the Partnership or a related series
of transactions that, taken together, result in the sale or other disposition of
all or substantially all of the assets of the Partnership.
"Trusts" means (i) Tamarac Trust, Trust No. 101, (ii) Riverside Trust,
Trust No. 102, and (iii) Charlotte Square Trust, Trust No. 103.
"Unrealized Gain" attributable to any item of Partnership property
means, as of any date of determination, the excess, if any, of (i) the fair
market value of such property (as determined
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under Section 6.2(c) hereof) as of such date, over (ii) the Carrying Value of
such property (prior to any adjustment to be made pursuant to Section 6.2(c)
hereof) as of such date.
"Unrealized Loss" attributable to any item of Partnership property
means, as of any date of determination, the excess, if any, of (i) the Carrying
Value of such property (prior to any adjustment to be made pursuant to Section
6.2(c) hereof) as of such date, over (ii) the fair market value of such property
(as determined under Section 6.2(c) hereof) as of such date.
"Valuation Date" means the date of receipt by the General Partner of a
Notice of Redemption or, if such date is not a Business Day, the first Business
Day thereafter.
"Value" means, with respect to a REIT Share, the average of the daily
market price for the ten (10) consecutive trading days immediately preceding the
Valuation Date. The market price for each such trading day shall be: (i) the
closing prices ("regular way" pursuant to NYSE Rule 703.02 with respect to
shares trading "ex" distributions) on composite tape on the New York Stock
Exchange ("NYSE") or Nasdaq National Market, on such day, or if no such sale
takes place on such day, the average of the closing bid and asked prices on such
day; (ii) if the REIT Shares are not listed or admitted to trading on any
securities exchange or the Nasdaq National Market, the last reported sale price
on such day or, if no sale takes place on such day, the average of the closing
bid and asked prices on such day, as reported by a reliable quotation source
designated by the General Partner; or (iii) if the REIT Shares are not listed or
admitted to trading on any securities exchange or the Nasdaq National Market and
no such last reported sale price or closing bid and asked prices are available,
the average of the reported high bid and low asked prices on such day, as
reported by a reliable quotation source designated by the General Partner, or if
there shall be no bid and asked prices on such day, the average of the high bid
and low asked prices, as so reported, on the most recent day (not more than ten
(10) days prior to the date in question) for which prices have been so reported;
provided that if there are no bid and asked prices reported during the ten (10)
days prior to the date in question, the Value of the REIT Shares shall be
determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment,
appropriate. In the event the REIT Shares Amount includes rights that a holder
of REIT Shares would be entitled to receive, then the Value of such rights shall
be determined by the General Partner acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable judgment,
appropriate.
ARTICLE 2
ORGANIZATIONAL MATTERS
Section 2.1 Organization and Continuation
The Partnership is a limited partnership organized pursuant to the
provisions of the Act. Except as expressly provided herein to the contrary, the
rights and obligations of the Partners and the administration and termination of
the Partnership shall be governed by the Act. The Partnership Interest of each
Partner shall be personal property for all purposes.
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Section 2.2 Name
The name of the Partnership shall be IRT Partners L.P. The
Partnership's business may be conducted under any other name or names deemed
advisable by the General Partner, including the name of the General Partner or
any Affiliate thereof. The words "Limited Partnership," "L.P.," "Ltd." or
similar words or letters shall be included in the Partnership's name where
necessary for the purposes of complying with the laws of any jurisdiction that
so requires. The General Partner in its sole and absolute discretion may change
the name of the Partnership at any time and from time to time and shall notify
the Limited Partners of such change in the next regular communication to the
Limited Partners.
Section 2.3 Registered Office and Agent; Principal Office
The address of the registered office of the Partnership in the State of
Georgia is 1201 Peachtree Street, N.E., Atlanta, Georgia 30361 and the name of
the registered agent for service of process on the Partnership at such address
is CT Corporation System. The principal office of the Partnership shall be
located at 200 Galleria Parkway, N.W., Suite 1400, Atlanta, Georgia 30339, or
such other place as the General Partner may from time to time designate by
notice to the Limited Partners. The Partnership may maintain offices at such
other place or places within or outside the State of Georgia as the General
Partner deems advisable.
Section 2.4 Power of Attorney
(a) Each Limited Partner and each Assignee hereby constitutes and
appoints the General Partner, any Liquidator, and authorized officers and
attorneys-in-fact of each, and each of those acting singly, in each case with
full power of substitution, as its true and lawful agent and attorney-in-fact,
with full power and authority in its name, place and stead to:
(1) execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices (i) all
certificates, documents and other instruments
(including, without limitation, this Agreement and
the Certificate and all amendments or restatements
thereof) that the General Partner or the Liquidator
deems appropriate or necessary to form, qualify or
continue the existence or qualification of the
Partnership as a limited partnership (or a
partnership in which the limited partners have
limited liability) in the State of Georgia and in all
other jurisdictions in which the Partnership may or
plans to conduct business or own property; (ii) all
instruments that the General Partner deems
appropriate or necessary to reflect any amendment,
change, modification or restatement of this Agreement
in accordance with its terms; (iii) all conveyances
and other instruments or documents that the General
Partner or the Liquidator deems appropriate or
necessary to reflect the dissolution
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<PAGE> 19
and liquidation of the Partnership pursuant to the
terms of this Agreement, including, without
limitation, a certificate of cancellation; (iv) all
instruments relating to the admission, withdrawal,
removal or substitution of any Partner pursuant to,
or other events described in, Articles 11, 12 or 13
hereof or the Capital Contribution of any Partner;
and (v) all certificates, documents and other
instruments relating to the determination of the
rights, preferences and privileges of a Partnership
Interest; and
(2) execute, swear to, seal, acknowledge and file all
ballots, consents, approvals, waivers, certificates
and other instruments appropriate or necessary, in
the sole and absolute discretion of the General
Partner or any Liquidator, to make, evidence, give,
confirm or ratify any vote, consent, approval,
agreement or other action which is made or given by
the Partners hereunder or is consistent with the
terms of this Agreement or appropriate or necessary,
in the sole discretion of the General Partner or any
Liquidator, to effectuate the terms or intent of this
Agreement.
Nothing contained herein shall be construed as authorizing the General Partner
or any Liquidator to amend this Agreement except in accordance with Article 14
hereof or as may be otherwise expressly provided for in this Agreement.
(b) The foregoing power of attorney is hereby declared to be
irrevocable and a power coupled with an interest, in recognition of the fact
that each of the Partners will be relying upon the power of the General Partner
and any Liquidator to act as contemplated by this Agreement in any filing or
other action by it on behalf of the Partnership, and it shall survive and not be
affected by the subsequent Incapacity of any Limited Partner or Assignee and the
transfer of all or any portion of such Limited Partner's or Assignee's
Partnership Units and shall extend to such Limited Partner's or Assignee's
heirs, successors, assigns and personal representatives. Each such Limited
Partner or Assignee hereby agrees to be bound by any representation made by the
General Partner or any Liquidator, acting in good faith pursuant to such power
of attorney, and each such Limited Partner or Assignee hereby waives any and all
defenses which may be available to contest, negate or disaffirm the action of
the General Partner or any Liquidator, taken in good faith under such power of
attorney. Each Limited Partner or Assignee shall execute and deliver to the
General Partner or the Liquidator, within fifteen (15) days after receipt of the
General Partner's or Liquidator's request therefor, such further designation,
powers of attorney and other instruments as the General Partner or the
Liquidator, as the case may be, deems necessary to effectuate this Agreement and
the purposes of the Partnership.
Section 2.5 Term
The term of the Partnership commenced on July 14, 1998, the date the
Certificate was filed in the office of the Secretary of State of Georgia in
accordance with the Act, and shall
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continue until December 31, 2098, unless the Partnership is dissolved sooner
pursuant to the provisions of Article 13 or as otherwise provided by law.
ARTICLE 3
PURPOSE
Section 3.1 Purpose and Business
The purpose and nature of the business to be conducted by the
Partnership is (i) to conduct any business that may be lawfully conducted by a
limited partnership organized pursuant to the Act, provided, however, that such
business shall be limited to and conducted in such a manner as to permit the
General Partner at all times to be classified as a REIT, unless the General
Partner elects in its sole discretion not to qualify as a REIT, or otherwise
ceases to qualify as a REIT, (ii) to enter into any partnership, joint venture
or other similar arrangement to engage in any of the foregoing or to own
interests in any entity engaged in any of the foregoing, (iii) to borrow monies,
either unsecured or secured by one or more assets of the Partnership, and (iv)
to do anything necessary or incidental to the foregoing.
Section 3.2 Powers
The Partnership is empowered to do any and all acts and things
necessary, appropriate, proper, advisable, incidental to or convenient for the
furtherance and accomplishment of the purposes and business described herein and
for the protection and benefit of the Partnership, provided that the Partnership
shall not take, or refrain from taking, any action which, in the judgment of the
General Partner, in its sole and absolute discretion, (i) could adversely affect
the ability of the General Partner to continue to qualify as a REIT, (ii) could
subject the General Partner to any additional taxes under Section 857 or Section
4981 of the Code, or (iii) could violate any law or regulation of any
governmental body or agency having jurisdiction over the General Partner, the
Partnership or their respective securities, unless such action (or inaction)
shall have been specifically consented to by the General Partner in writing.
ARTICLE 4
CAPITAL CONTRIBUTIONS
Section 4.1 Capital Contributions of the Partners
At the time of the execution of this Agreement, the Partners shall make
Capital Contributions set forth in Exhibit A to this Agreement. The Partners
shall own Partnership Units in the amounts set forth for each such Partner in
Exhibit A and shall have a Percentage Interest in the Partnership as set forth
in Exhibit A, which Percentage Interest shall be adjusted in Exhibit A from time
to time by the General Partner to the extent necessary to reflect accurately
redemptions, conversions, Capital Contributions, the issuance of additional
Partnership Units, or similar events having an effect on any Partner's
Percentage Interest. Except as provided in Sections 4.2, 10.4, and 13.3(b), the
Partners shall have no obligation to make any additional Capital Contributions
or
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loans to the Partnership. The General Partner shall maintain the information
set forth in Exhibit A to the Agreement, as such information shall change from
time to time, in such form as the General Partner deems appropriate for the
conduct of the Partnership affairs, and Exhibit A shall be deemed amended from
time to time to reflect the information so maintained by the General Partner,
whether or not a formal amendment to the Agreement has been executed amending
such Exhibit A. Such information shall reflect (and Exhibit A shall be deemed
amended from time to time to reflect) the issuance of any additional Partnership
Units to the General Partner or any other Person, the transfer of Partnership
Units and the redemption of any Partnership Units, all as contemplated in the
Agreement.
Section 4.2 Issuances of Additional Partnership Interests
The General Partner is hereby authorized to cause the Partnership from
time to time to issue to the Partners (including the General Partner) or other
Persons additional Partnership Units or other Partnership Interests in one or
more classes, or one or more series of any of such classes, with such
designations, preferences and relative, participating, optional or other special
rights, powers and duties, including rights, powers and duties senior to Limited
Partner Interests, all as shall be determined by the General Partner in its sole
and absolute discretion subject to Georgia law, including, without limitation,
(i) the allocations of items of Partnership income, gain, loss, deduction and
credit to each such class or series of Partnership Interests; (ii) the right of
each such class or series of Partnership Interests to share in Partnership
distributions; and (iii) the rights of each such class or series of Partnership
Interests upon dissolution and liquidation of the Partnership; provided,
however, that no Partnership Interest may be issued to any person that has a
priority with respect to any of the foregoing items over the Original Limited
Partners at such time as the Original Limited Partners have priority as to
distributions under Articles 5, 6 and 13 hereof and no Affiliate of the General
Partner or the General Partner may be issued Units other than Units that are
subordinate to the Units of the Original Limited Partners at such time as the
Original Limited Partners have priority as to distributions under Articles 5, 6
and 13 hereof, except (i) as provided in Section 7.4(g) hereof or (ii) the
issuance of Units to the General Partner and its Affiliates in proportion to
their holdings of Units that have such priority as to distributions. Without
limiting the foregoing, the General Partner is expressly authorized to cause the
Partnership to issue Partnership Units for less than fair market value, so long
as the General Partner concludes in good faith that such issuance is in the best
interests of the General Partner and the Partnership (for example, and not by
way of limitation, the issuance of Partnership Units pursuant to an employee
purchase plan providing for employee purchases of Partnership Units at a
discount from fair market value or employee options that have an exercise price
that is less than the fair market value of the Partnership Units, either at the
time of issuance or at the time of exercise).
Section 4.3 No Preemptive Rights
No Person shall have any preemptive, preferential or other similar
right with respect to (i) additional Capital Contributions or loans to the
Partnership; or (ii) issuance or sale of any Partnership Units or other
Partnership Interests.
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Section 4.4 No Interest
No interest shall be paid by the Partnership on Capital Contributions
or on balances in Partners' Capital Accounts.
Section 4.5 No Withdrawal
No Partner shall be entitled to withdraw any part of his Capital
Contribution or his Capital Account or to receive any distribution from the
Partnership, except as provided in Articles 4, 5, 8 and 13 hereof.
ARTICLE 5
DISTRIBUTIONS
Section 5.1 Requirement and Characterization of Distributions
(a) The General Partner shall cause the Partnership to
distribute quarterly an amount equal to 100% of Available Cash generated by the
Partnership during such quarter to the Partners who are Partners on the
Partnership Record Date with respect to such quarter as follows:
(1) First, one hundred percent (100%) to the Limited
Partners other than any Affiliate Limited Partner, pro rata
based on the number of Partnership Units held by each such
Limited Partner on the applicable Partnership Record Date,
until each has received an amount equal to the Priority
Distribution Amount for the quarter for each such Unit;
(2) Next, if any Limited Partners have a positive
Cumulative Unpaid Accrued Return Account other than to any
Affiliate Limited Partner, one hundred percent (100%) to such
Limited Partners, pro rata based on the relative amounts of
their Cumulative Unpaid Accrued Return Accounts, until each
such Cumulative Unpaid Accrued Return Account reaches zero;
(3) Next, if any Limited Partners have a positive
Cumulative Unpaid Priority Distribution Account other than to
any Affiliate Limited Partner, one hundred percent (100%) to
such Limited Partners, pro rata based on the relative amounts
of their Cumulative Unpaid Priority Distribution Accounts,
until each such Cumulative Unpaid Priority Distribution
Account reaches zero; and
(4) Thereafter, to the General Partner and any
Affiliate Partner in proportion to the respective number of
Units held by each such Partner.
(b) The General Partner shall take such reasonable efforts, as
determined by it in its sole and absolute discretion and consistent with its
qualification as a REIT, to distribute
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Available Cash to the Limited Partners so as to preclude any such distribution
or portion thereof from being treated as part of a sale of property to the
Partnership by a Limited Partner under Section 707 of the Code or the
Regulations thereunder; provided that the General Partner and the Partnership
shall not have liability to a Limited Partner under any circumstances as a
result of any distribution to a Limited Partner being so treated.
Section 5.2 Amounts Withheld
All amounts withheld pursuant to the Code or any provisions of any
state or local tax law and Section 10.4 hereof with respect to any allocation,
payment or distribution to the General Partner, the Limited Partners or
Assignees shall be treated as amounts distributed to the General Partner,
Limited Partners, or Assignees pursuant to Section 5.1 for all purposes under
this Agreement.
Section 5.3 Distributions Upon Liquidation
Proceeds from a Terminating Capital Transaction and any other cash
received or reductions in reserves made after commencement of the liquidation of
the Partnership shall be distributed to the Partners in accordance with Section
13.2.
ARTICLE 6
ALLOCATIONS
Section 6.1 Allocations For Capital Account Purposes
For purposes of maintaining the Capital Accounts and in determining the
rights of the Partners among themselves, the Partnership's Net Income and Net
Loss shall be allocated among the Partners in each taxable year (or portion
thereof) as provided hereinbelow.
(a) Net Income. After giving effect to the special allocations set
forth in Section 6.3, Net Income shall be allocated as follows:
(1) First, to the Partners in proportion to and to the
extent of distributions with respect to such taxable
year, other than distributions of amounts for which
an allocation had previously been made under
paragraph (2) below;
(2) Second, to the Limited Partners in proportion to and
to the extent of the respective credit balances in
such Limited Partners' Cumulative Unpaid Accrued
Return Account and Cumulative Unpaid Priority
Distribution Account, less prior allocations with
respect thereto under this Section 6.1(a)(2) plus any
prior allocations under Section 6.1(b)(2); and
(3) Third, one hundred percent (100%) to the General
Partner and the Affiliate Limited Partners in an
amount equal to the excess, if any, of (i) the
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cumulative Net Losses allocated to such Partners
pursuant to Section 6.1(b)(5) and the last sentence
of Section 6.1(b) for all prior fiscal years, over
(ii) the cumulative Net Income allocated pursuant to
this Section 6.1(a)(1) for all prior fiscal years
(such allocation being made in proportion to such
Partners' respective excess amounts);
(4) Fourth, one hundred percent (100%) to the Limited
Partners (other than any Affiliate Limited Partner)
in an amount equal to the excess, if any, of (i) the
cumulative Net Losses allocated to such Limited
Partners pursuant to Section 6.1(b)(4) for all prior
fiscal years, over (ii) the cumulative Net Income
allocated pursuant to this Section 6.1(a)(2) for all
prior fiscal years, which amount shall be allocated
among the Partners in the same proportions and in the
reverse order as the Net Losses were allocated
pursuant to Section 6.1(b)(4);
(5) Fifth, one hundred percent (100%) to the Limited
Partners (other than any Affiliate Limited Partner)
in an amount equal to the excess, if any, of (i) the
cumulative Net Losses allocated to such Limited
Partners pursuant to Section 6.1(b)(3) for all prior
fiscal years, over (ii) the cumulative Net Income
allocated pursuant to this Section 6.1(a)(3) for all
prior fiscal years, which amount shall be allocated
among such Partners in the same proportions and in
the reverse order as the Net Losses were allocated
pursuant to Section 6.1(b)(3);
(6) Thereafter, to the General Partner and the Affiliate
Limited Partners in proportion to their respective
number of Units.
(b) Net Losses. After giving effect to the special
allocations set forth in Section 6.3, Net Losses shall be allocated as follows:
(1) First, one hundred percent (100%) to the General
Partner and the Affiliate Limited Partners in an
amount equal to the excess, if any, of (i) the
cumulative Net Income allocated pursuant to Section
6.1(a)(6) hereof for all prior fiscal years to such
Partner, over (ii) the cumulative Net Losses
allocated pursuant to this Section 6.1(b)(1) for all
prior fiscal years to such Partner (such allocation
being made in proportion to such Partner's respective
excess amounts);
(2) Second, to the Limited Partners until the cumulative
allocations of Net Losses under this Section
6.1(b)(2) equal the excess, if any, of the cumulative
allocations of Net Income under Section 6.1(a)(2) to
such Partners for all prior fiscal years over the
cumulative distributions to such Partners under
Section 5.1(a)(2) and (3) for the current and all
prior fiscal
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years (such allocation being made in proportion to
such Partners' respective excess amounts);
(3) Third, to the Limited Partners with positive Adjusted
Capital Account balances (determined, solely for
purposes of this Section 6.2(b)(3), without regard to
any obligation of a Partner to restore a negative
Capital Account under Section 13.3(b), in proportion
to such balances, until such balances are reduced to
zero;
(4) Fourth, to the Limited Partners in proportion to
their relative Percentage Interests; provided,
however, that to the extent that an allocation under
this Section 6.1(b)(4) would cause or increase an
Adjusted Capital Account Deficit for such Partner,
such Net Loss shall be allocated to those Limited
Partners (in proportion to their relative Percentage
Interests) for whom such allocation would not cause
or increase an Adjusted Capital Account Deficit; and
(5) Any remaining Net Loss shall be allocated to the
General Partner and any Affiliate Limited Partner in
proportion to their respective number of Units.
Notwithstanding the foregoing, Net Losses shall not be allocated to any Limited
Partner pursuant to this Section 6.1(b) to the extent that such allocation would
cause such Limited Partner to have an Adjusted Capital Account Deficit at the
end of such taxable year (or increase any existing Adjusted Capital Account
Deficit). All Net Losses in excess of the limitations set forth in the preceding
sentence of this Section 6.1(b) shall be allocated to the General Partner.
(c) REIT Shares Amount Allocation. In the event that a Limited Partner
exercises his Redemption Right and receives payment of the REIT Shares Amount
with respect to some or all of his Units, such Limited Partner shall
notwithstanding the provisions of subsections 6.1(a) and 6.1(b) above be
allocated an amount of Net Income, or, if necessary, items of income or gain,
equal to the amount of any Cumulative Unpaid Accrued Return Account and any
Cumulative Unpaid Priority Return Account paid in connection with payment of
such amounts and for which such Limited Partner had not previously received an
allocation of Net Income not offset by an allocation of Net Loss.
Section 6.2 Other Allocation Rules
(a) Excess Nonrecourse Liabilities. For purposes of determining a
Partner's proportionate share of the "excess nonrecourse liabilities" of the
Partnership within the meaning of Regulations Section 1.752-3(a)(3), such
"excess nonrecourse liabilities" shall be allocated in accordance with such
Partner's share of Partnership profits; provided, however, that each such share
shall be determined by the General Partner in its reasonable discretion under
any method permitted under applicable Regulations.
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(b) Recapture Income. Any gain allocated to the Partners upon the sale
or other taxable disposition of any Partnership asset to the extent possible,
after taking into account other required allocations of gain pursuant to Section
6.3, shall be characterized as Recapture Income in the same proportions and to
the same extent as such Partners have been allocated any deductions directly or
indirectly giving rise to the treatment of such gains as Recapture Income.
(c) Carrying Value Adjustments.
(1) Consistent with the provisions of Regulations Section
1.704-l(b)(2)(iv)(f), and as provided in Section
6.2(c)(2) below, the Carrying Value of all
Partnership assets shall be adjusted upward or
downward to reflect any Unrealized Gain or Unrealized
Loss attributable to such Partnership property, as of
the times of the adjustments provided in Section
6.2(c)(2) below, as if such Unrealized Gain or
Unrealized Loss had been recognized on an actual sale
of each such property and allocated pursuant to
Section 6.1 of the Agreement.
(2) Such adjustments shall be made as of the following
times: (i) immediately prior to the acquisition of an
additional interest in the Partnership by any new or
existing Partner in exchange for more than a de
minimis Capital Contribution; (ii) immediately prior
to distribution by the Partnership to a Partner of
more than a de minimis amount of property as
consideration for an interest in the Partnership; and
(iii) immediately prior to the liquidation of the
Partnership within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g), provided, however, that
adjustments pursuant to clauses (i) and (ii) above
shall be made only if the General Partner determines
that such adjustments are necessary or appropriate to
reflect the relative economic interests of the
Partners in the Partnership.
(3) In accordance with Regulations Section
1.704-l(b)(2)(iv)(e), the Carrying Value of
Partnership assets distributed in kind shall be
adjusted upward or downward to reflect any Unrealized
Gain or Unrealized Loss attributable to such
Partnership property, as of the time any such asset
is distributed.
(4) In determining Unrealized Gain or Unrealized Loss,
the aggregate cash amount and fair market value of
all Partnership assets (including cash or cash
equivalents) shall be determined by the General
Partner using such reasonable method of valuation as
it may adopt, or in the case of a liquidating
distribution pursuant to Article 13 of the Agreement,
shall be determined and allocated by the Liquidator
using such reasonable methods of valuation as it may
adopt. The General Partner, or the Liquidator, as the
case may be, shall allocate such aggregate value
among the assets of the Partnership (in such manner
as it determines in its sole and absolute discretion
to arrive at a fair market value for individual
properties).
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Section 6.3 Special Allocation Rules
Notwithstanding any other provision of the Agreement, the following
special allocations shall be made in the following order:
(a) Minimum Gain Chargeback. Notwithstanding the provisions of Section
6.1 of the Agreement or any other provisions of this Section 6.3, if there is a
net decrease in Partnership Minimum Gain during any Partnership Year, each
Partner shall be specially allocated items of Partnership income and gain for
such year (and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partnership Minimum Gain, as determined
under Regulations Section 1.704-2(g). Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Partner pursuant thereto. The items to be so allocated shall
be determined in accordance with Regulations Section 1.704-2(f)(6). This Section
6.3(a) is intended to comply with the minimum gain chargeback requirements in
Regulations Section 1.704-2(f) and shall be interpreted consistently therewith.
Solely for purposes of this Section 6.3(a), each Partner's Adjusted Capital
Account Deficit shall be determined prior to any other allocations pursuant to
Section 6.1 with respect to such fiscal year and without regard to any decrease
in Partner Minimum Gain during such Partnership Year.
(b) Partner Minimum Gain Chargeback. Notwithstanding any provision of
Section 6.1 of this Agreement or any other provisions of this Section 6.3
(except paragraph (a) hereof), if there is a net decrease in Partner Minimum
Gain attributable to a Partner Nonrecourse Debt during any Partnership Year,
each Partner who has a share of the Partner Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5), shall be specially allocated items of Partnership income and gain
for such year (and, if necessary, subsequent years) in an amount equal to such
Partner's share of the net decrease in Partner Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5). Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each Partner
pursuant thereto. The items to be so allocated shall be determined in accordance
with Regulations Section 1.704-2(i)(4). This Section 6.3(b) is intended to
comply with the minimum gain chargeback requirement in such Section of the
Regulations and shall be interpreted consistently therewith. Solely for purposes
of this Section 6.3(b), each Partner's Adjusted Capital Account Deficit shall be
determined prior to any other allocations pursuant to Section 6.1 of the
Agreement with respect to such Partnership Year, other than allocations pursuant
to paragraph (a) hereof.
(c) Qualified Income Offset. In the event any Partner unexpectedly
receives any adjustments, allocations or distributions described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5) or
1.704-1(b)(2)(ii)(d)(6), and after giving effect to the allocations required
under Sections 6.3(a) and 6.3(b) hereof, such Partner has an Adjusted Capital
Account Deficit, items of Partnership income and gain (consisting of a pro rata
portion of each item of Partnership income, including gross income and gain for
the Partnership Year) shall be specifically allocated
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to such Partner in an amount and manner sufficient to eliminate, to the extent
required by the Regulations, its Adjusted Capital Account Deficit created by
such adjustments, allocations or distributions as quickly as possible.
(d) Nonrecourse Deductions. Nonrecourse Deductions for any Partnership
Year shall be allocated to the Partners in accordance with their respective
Percentage Interests. If the General Partner determines in its good faith
discretion that the Partnership's Nonrecourse Deductions must be allocated in a
different ratio to satisfy the safe harbor requirements of the Regulations
promulgated under Section 704(b) of the Code, the General Partner is authorized,
upon notice to the Limited Partners, to revise the prescribed ratio to the
numerically closest ratio for such Partnership Year which would satisfy such
requirements.
(e) Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions
for any Partnership Year shall be specially allocated to the Partner who bears
the economic risk of loss with respect to the Partner Nonrecourse Debt to which
such Partner Nonrecourse Deductions are attributable in accordance with
Regulations Section 1.704-2(i).
(f) Code Section 754 Adjustments. To the extent an adjustment to the
adjusted tax basis of any Partnership asset pursuant to Section 734(b) or 743(b)
of the Code is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m),
to be taken into account in determining Capital Accounts, the amount of such
adjustment to the Capital Accounts shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis), and such item of gain or loss shall be specially
allocated to the Partners in a manner consistent with the manner in which their
Capital Accounts are required to be adjusted pursuant to such Section of the
Regulations.
(g) Allocations for Tax Purposes
(1) Except as otherwise provided in this Section 6.3(g), for
federal income tax purposes, each item of income, gain, loss and deduction shall
be allocated among the Partners in the same manner as its correlative item of
"book" income, gain, loss or deduction is allocated.
(2) In an attempt to eliminate Book-Tax Disparities
attributable to a Contributed Property or Adjusted Property, items of income,
gain, loss, and deduction shall be allocated for federal income tax purposes
among the Partners as follows:
(i) (A) In the case of a Contributed Property, such
items attributable thereto shall be
allocated among the Partners consistent with
the principles of Section 704(c) of the Code
to take into account the variation between
the 704(c) Value of such property and its
adjusted basis at the time of contribution;
and
(B) any item of Residual Gain or Residual Loss
attributable to a Contributed Property shall
be allocated among the Partners in the
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same manner as its correlative item of
"book" gain or loss is allocated.
(ii) (A) In the case of an Adjusted Property, such
items shall
(1) first, be allocated among the
Partners in a manner consistent with
the principles of Section 704(c) of
the Code to take into account the
Unrealized Gain or Unrealized Loss
attributable to such property and
the allocations thereof, and
(2) second, in the event such property
was originally a Contributed
Property, be allocated among the
Partners in a manner consistent with
Section 6.3(g)(2)(i) above; and
(B) any item of Residual Gain or Residual Loss
attributable to an Adjusted Property shall
be allocated among the Partners in the same
manner its correlative item of "book" gain
or loss is allocated.
(iii) all other items of income, gain loss and deduction
shall be allocated among the Partners in the same
manner as their correlative item of "book" gain or
loss is allocated.
(iv) Any elections or other decisions relating to Code
Section 704(c) allocations shall be made by the
General Partner; provided, however, that the
"traditional method" of making Section 704(c)
allocations without curative allocations described in
Section 1.704-3(b) of the Regulations shall be used.
Allocations pursuant to Sections (i), (ii) and (iii)
hereof are solely for purposes of federal, state, and
local taxes and shall not affect, or in any way be
taken into account in computing, any Partner's
Capital Account or share of Net Income, Net Losses,
other items, or distributions pursuant to any
provision of this Agreement.
ARTICLE 7
MANAGEMENT AND OPERATIONS OF BUSINESS
Section 7.1 Management
(a) Except as otherwise expressly provided in this Agreement, all
management powers over the business and affairs of the Partnership are and shall
be exclusively vested in the General Partner, and no Limited Partner shall have
any right to participate in or exercise control or management power over the
business and affairs of the Partnership. The General Partner may not be removed
by the Limited Partners with or without cause. In addition to the powers now or
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hereafter granted to a general partner of a limited partnership under applicable
law or which are granted to the General Partner under any other provision of
this Agreement, the General Partner shall have full power and authority to do
all things deemed necessary or desirable by it to conduct the business of the
Partnership, to exercise all powers set forth in Section 3.2 hereof and to
effectuate the purposes set forth in Section 3.1 hereof, including, without
limitation:
(1) the making of any expenditures, the lending or
borrowing of money (including, without limitation,
making prepayments on loans and borrowing money to
permit the Partnership to make distributions to its
Partners in such amounts as will permit the General
Partner (so long as the General Partner qualifies as
a REIT) to avoid the payment of any federal income
tax (including, for this purpose, any excise tax
pursuant to Section 4981 of the Code) and to make
distributions to the General Partner such that the
General Partner can distribute to its shareholders
amounts sufficient to permit the General Partner to
maintain REIT status), the assumption or guarantee
of, or other contracting for, indebtedness and other
liabilities, the issuance of evidence of indebtedness
(including the securing of same by deed to secure
debt, mortgage, deed of trust or other lien or
encumbrance on the Partnership's assets) and the
incurring of any obligations it deems necessary for
the conduct of the activities of the Partnership;
(2) the making of tax, regulatory and other filings, or
rendering of periodic or other reports to
governmental or other agencies having jurisdiction
over the business or assets of the Partnership;
(3) the acquisition, disposition, mortgage, pledge,
encumbrance, hypothecation or exchange of any assets
of the Partnership (including the exercise or grant
of any conversion, option, privilege or subscription
right or other right available in connection with any
assets at any time held by the Partnership) or the
combination of the Partnership with or into another
entity (all of the foregoing without any prior
approval);
(4) the use of the assets of the Partnership (including,
without limitation, cash on hand) for any purpose
consistent with the terms of this Agreement and on
any terms it sees fit, including, without limitation,
the financing of the conduct of the operations of the
General Partner, the Partnership or any of the
Partnership's Subsidiaries, the lending of funds to
other Persons (including, without limitation, the
Subsidiaries of the Partnership and/or the General
Partner) and the repayment of obligations of the
Partnership and its Subsidiaries and any other Person
in which it has
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an equity investment, and the making of capital
contributions to its Subsidiaries;
(5) the management, operation, leasing, landscaping,
repair, expansion, alteration, renovation, demolition
or improvement of any real property or improvements
owned by the Partnership or any Subsidiary of the
Partnership;
(6) the negotiation, execution, and performance of any
contracts, conveyances or other instruments that the
General Partner considers useful or necessary to the
conduct of the Partnership's operations or the
implementation of the General Partner's powers under
this Agreement, including contracting with the
General Partner, any Subsidiary or Affiliate of the
General Partner, contractors, developers,
consultants, accountants, legal counsel, other
professional advisors and other agents and the
payment of their expenses and compensation out of the
Partnership's assets;
(7) the distribution of Partnership cash or other
Partnership assets in accordance with this Agreement;
(8) holding, managing, investing and reinvesting cash and
other assets of the Partnership;
(9) the collection and receipt of revenues and income of
the Partnership;
(10) the establishment of one or more divisions of the
Partnership, the selection and dismissal of employees
of the Partnership, any division of the Partnership,
or the General Partner (including, without
limitation, employees having titles such as
"president," "vice president," "secretary" and
"treasurer" of the Partnership, any division of the
Partnership, or the General Partner), and agents,
outside attorneys, accountants, consultants and
contractors of the General Partner or the Partnership
or any division of the Partnership, and the
determination of their compensation and other terms
of employment or hiring;
(11) the maintenance of such insurance for the benefit of
the Partnership and the Partners as it deems
necessary or appropriate;
(12) the formation of, or acquisition of an interest in,
and the contribution of property to, any further
limited or general partnerships, joint ventures,
Subsidiaries or other relationships that
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it deems desirable (including, without limitation,
the acquisition of interests in, and the
contributions of property to, its Subsidiaries and
any other Person in which it has an equity investment
from time to time);
(13) the control of any matters affecting the rights and
obligations of the Partnership, including the
settlement, compromise, submission to arbitration or
any other form of dispute resolution, or abandonment
of, any claim, cause of action, liability, debt or
damages, due or owing to or from the Partnership, the
commencement or defense of suits, legal proceedings,
administrative proceedings, arbitration or other
forms of dispute, resolution, and the representation
of the Partnership in all suits or legal proceedings,
administrative proceedings, arbitrations or other
forms of dispute resolution, the incurring of legal
expense, and the indemnification of any Person
against liabilities and contingencies to the extent
permitted by law;
(14) the undertaking of any action in connection with the
Partnership's direct or indirect investment in its
Subsidiaries or any other Person (including, without
limitation, the contribution or loan of funds by the
Partnership to such Persons);
(15) the determination of the fair market value of any
Partnership property distributed in kind using such
reasonable method of valuation as the General Partner
may adopt;
(16) the exercise, directly or indirectly, through any
attorney-in-fact acting under a general or limited
power of attorney, of any right, including the right
to vote, appurtenant to any asset or investment held
by the Partnership;
(17) the exercise of any of the powers of the General
Partner enumerated in this Agreement on behalf of or
in connection with any Subsidiary of the Partnership
or any other Person in which the Partnership has a
direct or indirect interest, or jointly with any such
Subsidiary or other Person;
(18) the exercise of any of the powers of the General
Partner enumerated in this Agreement on behalf of any
Person in which the Partnership does not have an
interest pursuant to contractual or other
arrangements with such Person; and
(19) the making, execution and delivery of any and all
deeds, leases, notes, deeds to secure debt,
mortgages, deeds of trust, security
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agreements, conveyances, contracts, guarantees,
warranties, indemnities, waivers, releases or legal
instruments or agreement in writing necessary or
appropriate in the judgment of the General Partner
for the accomplishment of any of the powers of the
General Partner enumerated in this Agreement.
(b) Each of the Limited Partners agrees that the General Partner is
authorized to execute, deliver and perform the above-mentioned agreements and
transactions on behalf of the Partnership without any further act, approval or
vote of the Partners, notwithstanding any other provision of this Agreement, the
Act or any applicable law, rule or regulation, to the fullest extent permitted
under the Act or other applicable law. The execution, delivery or performance by
the General Partner or the Partnership of any agreement authorized or permitted
under this Agreement shall not constitute a breach by the General Partner of any
duty that the General Partner may owe the Partnership or the Limited Partners or
any other Persons under this Agreement or of any duty stated or implied by law
or equity.
(c) From and after the date hereof, the General Partner may cause the
Partnership to obtain and maintain (i) casualty, liability and other insurance
on the properties of the Partnership and (ii) liability insurance for the
Indemnities hereunder.
(d) From and after the date hereof, the General Partner may cause the
Partnership to establish and maintain at any and all times working capital
accounts and other cash or similar balances in such amounts as the General
Partner, in its sole and absolute discretion, deems appropriate and reasonable
from time to time.
(e) In exercising its authority under this Agreement and except as
provided at Section 5.1, the General Partner may, but shall be under no
obligation to, take into account the tax consequences to any Partner of any
action taken by it. The General Partner and the Partnership shall not have
liability to a Limited Partner under any circumstances as a result of an income
tax liability incurred by such Limited Partner as a result of an action (or
inaction) by the General Partner pursuant to its authority under this Agreement.
Notwithstanding the foregoing, the General Partner is authorized to enter into
agreements and understandings with Limited Partners regarding property
contributed to the Partnership and conditions under which such property may be
sold, transferred or refinanced.
(f) Notwithstanding anything contained in this Agreement to the
contrary, the General Partner, acting as fiduciary, shall use its reasonable
best efforts and act in good faith to operate the Partnership's assets and
manage the Partnership's business, including its indebtedness, so as to produce
sufficient Available Cash to fund to the Limited Partners the Priority
Distribution Amount on a current basis and any balance in the Cumulative Unpaid
Accrued Return Accounts and Cumulative Unpaid Priority Distribution Accounts of
the Limited Partners.
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Section 7.2 Certificate of Limited Partnership
The General Partner has previously filed the Certificate with the
Secretary of State of Georgia as required by the Act. The General Partner shall
use all reasonable efforts to cause to be filed such other certificates or
documents as may be reasonable and necessary or appropriate for the formation,
continuation, qualification and operation of a limited partnership (or a
partnership in which the limited partners have limited liability) in the State
of Georgia and any other state, or the District of Columbia, in which the
Partnership may elect to do business or own property. To the extent that such
action is determined by the General Partner to be reasonable and necessary or
appropriate, the General Partner shall file amendments to and restatements of
the Certificate and do all the things to maintain the Partnership as a limited
partnership (or a partnership in which the limited partners have limited
liability) under the laws of the State of Georgia and each other state or the
District of Columbia in which the Partnership may elect to do business or own
property. Subject to the terms of Section 8.5(a)(4) hereof, the General Partner
shall not be required, before or after filing, to deliver or mail a copy of the
Certificate or any amendment thereto to any Limited Partner.
Section 7.3 Reimbursement of the General Partner
(a) The General Partner shall be entitled to reasonable compensation,
for services provided to the Partnership; provided, however, that compensation
shall be deferred hereunder so long as any Limited Partner has a positive
Cumulative Unpaid Priority Distribution Account.
(b) The General Partner shall be reimbursed on a monthly basis, or such
other basis as the General Partner may determine in its sole and absolute
discretion, for all expenses that it incurs relating to the ownership and
operation of, or for the benefit of, the Partnership. Such reimbursements shall
be in addition to any reimbursement to the General Partner as a result of
indemnification pursuant to Section 7.5 hereof.
(c) The General Partner shall be treated as having made a Capital
Contribution in the amount of all expenses that it incurs relating to the
organization and/or reorganization of the Partnership and the General Partner,
and any other issuance of additional Partnership Interests or REIT Shares
pursuant to Section 4.2 hereof.
(d) In the event that the General Partner shall have transferred
substantially all of its assets to the Partnership, and the General Partner
elects to purchase from the shareholders of the General Partner REIT Shares for
the purpose of delivering such REIT Shares to satisfy an obligation under any
distribution or dividend reinvestment program or similar program adopted by the
General Partner, any employee stock purchase plan adopted by the General
Partner, or any similar obligation or arrangement undertaken by the General
Partner in the future, if the General Partner so elects, the purchase price paid
by the General Partner for such REIT Shares and any other expenses incurred by
the General Partner in connection with such purchase shall be considered
expenses of the Partnership and shall be reimbursed to the General Partner,
subject to the condition that: (i) if such REIT Shares subsequently are to be
sold by the General Partner, the
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General Partner shall pay to the Partnership any proceeds received by the
General Partner for such REIT Shares (provided that a transfer of REIT Shares
for Units pursuant to Section 8.6 would not be considered a sale for such
purposes); and (ii) if such REIT Shares are not retransferred by the General
Partner within 30 days after the purchase thereof, the General Partner shall
cause the Partnership to cancel a number of Partnership Units held by the
General Partner equal to the product obtained by multiplying the Conversion
Factor by the number of such REIT Shares.
Section 7.4 Contracts with Affiliates
(a) The Partnership may lend or contribute funds or other assets to its
Subsidiaries or other Persons in which it has an equity investment and such
Persons may borrow funds from the Partnership, on terms and conditions
established in the sole and absolute discretion of the General Partner. The
foregoing authority shall not create any right or benefit in favor of any
Subsidiary or any other Person.
(b) The Partnership may transfer assets to joint ventures, other
partnerships, corporations or other business entities in which it is or thereby
becomes a participant upon such terms and subject to such conditions consistent
with this Agreement and applicable law as the General Partner, in its sole and
absolute discretion, believes are advisable.
(c) Neither the General Partner nor any of its Affiliates shall sell,
transfer or convey any property to, or purchase any property from, the
Partnership, directly or indirectly, obtain from or furnish goods or services to
the Partnership, directly or indirectly, or engage in any transactions with the
Partnership, directly or indirectly, except pursuant to transactions that are
determined by the General Partner in good faith to be fair and reasonable and no
less favorable to the Partnership than would be obtained from an unaffiliated
third party.
(d) The General Partner, in its sole and absolute discretion and
without the approval of the Limited Partners, may propose and adopt on behalf of
the Partnership employee benefit plans, stock option plans, and similar plans
funded by the Partnership for the benefit of employees of the General Partner,
the Partnership, Subsidiaries of the Partnership or any Affiliate of any of them
in respect of services performed, directly or indirectly, for the benefit of the
Partnership, the General Partner, or any of the Partnership's Subsidiaries.
(e) The General Partner is expressly authorized to enter into, in the
name and on behalf of the Partnership, a right of first opportunity arrangement
and other conflict avoidance agreements with various Affiliates of the
Partnership and the General Partner, on such terms as the General Partner, in
its sole and absolute discretion, shall determine.
(f) The General Partner is expressly authorized to enter into, in the
name and on behalf of the Partnership, such guarantees of debt or of other
obligations of the General Partner, and/or of any Subsidiary or Affiliate of the
General Partner, as the General Partner, in its sole and absolute discretion,
shall determine.
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(g) Notwithstanding any other provision of this Agreement, in the event
the General Partner transfers all or substantially all of its assets to the
Partnership and as a result all or substantially all of the General Partner's
assets are owned through the Partnership, then (i) the Units of the General
Partner and its Affiliates will assume an equal priority with Units held by the
Original Limited Partners and for all purposes of this Agreement its Units shall
be treated on a pari passu basis with Units held by the Original Limited
Partners and the allocation and distribution provisions of this Agreement shall
be amended appropriately pursuant to the provisions of Section 14.1(b)(5), and
(ii) the General Partner will be authorized to issue interests to itself
superior to those held by any other Limited Partner to the extent the General
Partner at substantially the same time issues similar interests in its own
securities or obligations and provides the proceeds of such issuance to the
Partnership in exchange for such superior interests in the Partnership, provided
that such superior Partnership interests provide only for payments in respect of
such General Partner's securities or obligations in accordance with their terms.
Section 7.5 Indemnification
(a) The Partnership shall indemnify each Indemnitee from and against
any and all losses, claims, damages, liabilities, joint or several, expenses
(including, without limitation, attorneys' fees and other legal fees and
expenses), judgments, fines, settlements, and other amounts arising from any and
all claims, demands, actions, suits or proceedings, civil, criminal,
administrative or investigative, that relate to the operations of the
Partnership, the General Partner as set forth in this Agreement in which such
Indemnitee may be involved, or is threatened to be involved, as a party or
otherwise, unless it is conclusively established by a final unappealable order
of a court of competent jurisdiction that: (i) the act or omission of the
Indemnitee was material to the matter giving rise to the proceeding and either
was committed in bad faith or was the result of active and deliberate
dishonesty; (ii) the Indemnitee actually received an improper personal benefit
in money, property or services; or (iii) in the case of any criminal proceeding,
the Indemnitee had reasonable cause to believe that the act or omission was
unlawful. Without limitation, the foregoing indemnity shall extend to any
liability of any Indemnitee, pursuant to a loan guaranty or otherwise for any
indebtedness of the Partnership or any Subsidiary of the Partnership (including
without limitation, any indebtedness which the Partnership or any Subsidiary of
the Partnership has assumed or taken subject to), and the General Partner is
hereby authorized and empowered, on behalf of the Partnership, to enter into one
or more indemnity agreements consistent with the provisions of this Section 7.5
in favor of any Indemnitee having or potentially having liability for any such
indebtedness. The termination of any proceeding by judgment, order or settlement
does not create a presumption that the Indemnitee did not meet the requisite
standard of conduct set forth in this Section 7.5(a) with respect to the subject
matter of such proceeding. The termination of any proceeding by conviction of an
Indemnitee or upon a plea of nolo contendere or its equivalent by an Indemnitee,
or an entry of an order of probation against an Indemnitee prior to judgment,
creates a rebuttable presumption that such Indemnitee acted in a manner contrary
to that specified in this Section 7.5(a). Any indemnification pursuant to this
Section 7.5 shall be made only out of the assets of the Partnership, and neither
the General Partner nor any Limited Partner shall have any obligation to
contribute to the capital of the Partnership or otherwise provide funds, to
enable the Partnership to fund its obligations under this Section 7.5.
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(b) Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding may be paid or reimbursed by the Partnership in advance of the final
disposition of the proceeding upon receipt by the Partnership of (i) a written
affirmation by the Indemnitee of the Indemnitee's good faith belief that the
standard of conduct necessary for indemnification by the Partnership as
authorized in Section 7.5(a) has been met, and (ii) a written undertaking by or
on behalf of the Indemnitee to repay the amount if it shall ultimately be
determined that the standard of conduct has not been met.
(c) The indemnification provided by this Section 7.5 shall be in
addition to any other rights to which an Indemnitee or any other Person may be
entitled under any agreement, pursuant to any vote of the Partners, as a matter
of law or otherwise, and shall continue as to an Indemnitee who has ceased to
serve in such capacity unless otherwise provided in a written agreement pursuant
to which such Indemnitee is indemnified.
(d) The Partnership may, but shall not be obligated to, purchase and
maintain insurance, on behalf of the Indemnities and such other Persons as the
General Partner shall determine, against any liability that may be asserted
against or expenses that may be incurred by such Person in connection with the
Partnership's activities, regardless of whether the Partnership would have the
power to indemnify such Person against such liability under the provisions of
this Agreement.
(e) Any liabilities which an Indemnitee incurs as a result of acting on
behalf of the Partnership or the General Partner (whether as a fiduciary or
otherwise) in connection with the operation, administration or maintenance of an
employee benefit plan or any related trust or funding mechanism (whether such
liabilities are in the form of excise taxes assessed by the Internal Revenue
Service, penalties assessed by the Department of Labor, restitutions to such a
plan or trust or other funding mechanism or to a participant or beneficiary of
such plan, trust or other funding mechanism, or otherwise) shall be treated as
liabilities or judgments or fines under this Section 7.5 unless such liabilities
arise as a result of (i) such Indemnitee's intentional misconduct or knowing
violations of the law, or (ii) any transaction in which such Indemnitee received
a personal benefit in violation or breach of any provision of this Agreement or
applicable law.
(f) In no event may an Indemnitee subject any of the Partners to
personal liability by reason of the indemnification provisions set forth in this
Agreement.
(g) An Indemnitee shall not be denied indemnification in whole or in
part under this Section 7.5 because the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if the transaction
was otherwise permitted by the terms of this Agreement.
(h) The provisions of this Section 7.5 are for the benefit of the
Indemnities, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons. Any
amendment, modification or repeal of this Section 7.5 or any provision hereof
shall be prospective only and shall not in any way affect the limitations on the
Partnership's
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liability to any Indemnitee under this Section 7.5 as in effect
immediately prior to such amendment, modification, or repeal with respect to
claims arising from or relating to matters occurring, in whole or in part, prior
to such amendment, modification or repeal, regardless of when such claims may
arise or be asserted.
Section 7.6 Liability of the General Partner
(a) Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner shall not be liable for monetary damages to the
Partnership, any Partners or any Assignees for losses sustained or liabilities
incurred as a result of errors in judgment or of any act or omission if the
General Partner acted in good faith and with due care and loyalty.
(b) The Limited Partners expressly acknowledge that the General Partner
is acting on behalf of the Partnership and the General Partner's shareholders
collectively, that the General Partner is under no obligation, except as
provided at Section 5.1 and 7.1(f), to consider the separate interests of the
Limited Partners (including, without limitation, the tax consequences to Limited
Partners or Assignees) in deciding whether to cause the Partnership to take (or
decline to take) any actions, and that the General Partner shall not be liable
for monetary damages for losses sustained, liabilities incurred, or benefits not
derived by Limited Partners in connection with such decisions, provided that the
General Partner has acted in good faith.
(c) Subject to its obligations and duties as General Partner set forth
in Section 7.1(a) hereof, the General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties imposed upon it
hereunder either directly or by or through its agents. The General Partner shall
not be responsible for any misconduct or negligence on the part of any such
agent appointed by the General Partner in good faith.
(d) Any amendment, modification or repeal of this Section 7.6 or any
provision hereof shall be prospective only and shall not in any way affect the
limitations on the General Partner's liability to the Partnership and the
Limited Partners under this Section 7.6 as in effect immediately prior to such
amendment, modification or repeal with respect to claims arising from or
relating to matters occurring, in whole or in part, prior to such amendment,
modification or repeal, regardless of when such claims may arise or be asserted.
Section 7.7 Other Matters Concerning the General Partner
(a) The General Partner may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, or other
paper or document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties.
(b) The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers, architects, engineers,
environmental consultants and other consultants and advisers selected by it, and
any act taken or omitted to be taken in reliance
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upon the opinion of such Persons as to matters which such General Partner
reasonably believes to be within such Person's professional or expert competence
shall be conclusively presumed to have been done or omitted in good faith and in
accordance with such opinion.
(c) The General Partner shall have the right, in respect of any of its
powers or obligations hereunder, to act through any of its duly authorized
officers and a duly appointed attorney or attorneys-in-fact. Each such attorney
shall, to the extent provided by the General Partner in the power of attorney,
have full power and authority to do and perform all and every act and duty which
is permitted or required to be done by the General Partner hereunder.
(d) Notwithstanding any other provisions of this Agreement or the Act,
any action of the General Partner on behalf of the Partnership or any decision
of the General Partner to refrain from acting on behalf of the Partnership,
undertaken in the good faith belief that such action or omission is necessary or
advisable in order (i) to protect the ability of the General Partner to continue
to qualify as a REIT or (ii) to avoid the General Partner incurring any taxes
under Section 857 or Section 4981 of the Code, is expressly authorized under
this Agreement and is deemed approved by all of the Limited Partners.
Section 7.8 Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Partnership
as an entity, and no Partner, individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title to
any or all of the Partnership assets may be held in the name of the Partnership,
the General Partner or one or more nominees, as the General Partner may
determine, including Affiliates of the General Partner. The General Partner
hereby declares and warrants that any Partnership assets for which legal title
is held in the name of the General Partner or any nominee or Affiliate of the
General Partner shall be held by the General Partner or such nominee or
Affiliate for the use and benefit of the Partnership in accordance with the
provisions of this Agreement; provided, however, that the General Partner shall
use its best efforts to cause beneficial and record title to such assets to be
vested in the Partnership as soon as reasonably practicable. All Partnership
assets shall be recorded as the property of the Partnership in its books and
records, irrespective of the name in which legal title to such Partnership
assets is held.
Section 7.9 Reliance by Third Parties
Notwithstanding anything to the contrary in this Agreement, any Person
dealing with the Partnership shall be entitled to assume that the General
Partner has full power and authority, without consent or approval of any other
Partner or Person, to encumber, sell or otherwise use in any manner any and all
assets of the Partnership and to enter into any contracts on behalf of the
Partnership, and take any and all actions on behalf of the Partnership and such
Person shall be entitled to deal with the General Partner as if the General
Partner were the Partnership's sole party in interest, both legally and
beneficially. Each Limited Partner hereby waives any and all defenses or other
remedies which may be available against such Person to contest, negate or
disaffirm any
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action of the General Partner in connection with any such dealing. In no event
shall any Person dealing with the General Partner or its representatives be
obligated to ascertain that the terms of this Agreement have been complied with
or to inquire into the necessity or expedience of any act or action of the
General Partner or its representatives. Each and every certificate, document or
other instrument executed on behalf of the Partnership by the General Partner or
its representatives shall be conclusive evidence in favor of any and every
Person relying thereon or claiming thereunder that (i) at the time of the
execution and delivery of such certificate, document or instrument, this
Agreement was in full force and effect, (ii) the Person executing and delivering
such certificate, document or instrument was duly authorized and empowered to do
so for and on behalf of the Partnership and (iii) such certificate, document or
instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
ARTICLE 8
RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS
Section 8.1 Limitation of Liability
The Limited Partners shall have no liability under this Agreement
except as expressly provided in this Agreement, including Sections 10.4 and
13.2(b) hereof, or under the Act.
Section 8.2 Management of Business
No Limited Partner or Assignee (other than the General Partner, any of
its Affiliates or any officer, director, employee, partner, agent or trustee of
the General Partner, the Partnership or any of their Affiliates, in their
capacity as such) shall take part in the operation, management or control
(within the meaning of the Act) of the Partnership's business, transact any
business in the Partnership's name or have the power to sign documents for or
otherwise bind the Partnership. The transaction of any such business by the
General Partner, any of its Affiliates or any officer, director, employee,
partner, agent or trustee of the General Partner, the Partnership or any of
their Affiliates, in their capacity as such, shall not affect, impair or
eliminate the limitations on the liability of the Limited Partners or Assignees
under this Agreement.
Section 8.3 Outside Activities of Limited Partners
Subject to any agreements entered into pursuant to Section 7.4(e)
hereof and any other agreements entered into by a Limited Partner or its
Affiliates with the Partnership or a Subsidiary, any Limited Partner (other than
the General Partner) and any officer, director, employee, agent, trustee,
Affiliate or shareholder of any Limited Partner (other than the General Partner)
shall be entitled to and may have business interests and engage in business
activities in addition to those relating to the Partnership, including business
interests and activities that are in direct competition with the Partnership or
that are enhanced by the activities of the Partnership. Neither the Partnership
nor any Partners shall have any rights by virtue of this Agreement in any
business ventures of any Limited Partner or Assignee. None of the Limited
Partners (other than the
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General Partner) nor any other Person shall have any rights by virtue of this
Agreement or the Partnership relationship established hereby in any business
ventures of any other Person (other than the General Partner to the extent
expressly provided herein) and such Person shall have no obligation pursuant to
this Agreement to offer any interest in any such business ventures to the
Partnership, any Limited Partner or any such other Person, even if such
opportunity is of a character which, if presented to the Partnership, any
Limited Partner or such other Person, could be taken by such Person.
Section 8.4 Return of Capital
Except pursuant to the right of redemption set forth in Section 8.6, no
Limited Partner shall be entitled to the withdrawal or return of its Capital
Contribution, except to the extent of distributions made pursuant to this
Agreement or upon termination of the Partnership as provided herein. Except to
the extent otherwise expressly provided in this Agreement, no Limited Partner or
Assignee shall have priority over any other Limited Partner or Assignee either
as to the return of Capital Contributions or as to profits, losses or
distributions.
Section 8.5 Rights of Limited Partners Relating to the
Partnership
(a) In addition to other rights provided by this Agreement or by the
Act, and except as limited by Section 8.5(c) hereof, each Limited Partner shall
have the right, for a purpose reasonably related to such Limited Partner's
interest as a limited partner in the Partnership, upon written demand with a
statement of the purpose of such demand and at such Limited Partner's own
expense (including such copying and administrative charges as the General
Partner may establish from time to time):
(1) to obtain a copy of the most recent annual and
quarterly reports filed with the Securities and
Exchange Commission by the General Partner pursuant
to the Securities Exchange Act of 1934;
(2) to obtain a copy of the Partnership's federal, state
and local income tax returns for each Partnership
Year;
(3) to obtain a current list of the name and last known
business, residence or mailing address of each
Partner;
(4) to obtain a copy of this Agreement and the
Certificate and all amendments thereto, together with
executed copies of all powers of attorney pursuant to
which this Agreement, the Certificate and all
amendments thereto have been executed; and
(5) to obtain true and full information regarding the
amount of cash and a description and statement of any
other property or services contributed by
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each Partner and which each Partner has agreed to
contribute in the future, and the date on which each
became a Partner.
(b) The Partnership shall notify each Limited Partner upon request of
the then current and applicable Conversion Factor.
(c) Notwithstanding any other provision of this Section 8.5, the
General Partner may keep confidential from the Limited Partners, for such period
of time as the General Partner determines in its sole and absolute discretion to
be reasonable, any information that: (i) the General Partner reasonably believes
to be in the nature of trade secrets or other information the disclosure of
which the General Partner in good faith believes is not in the best interests of
the Partnership or could damage the Partnership or its business; (ii) the
Partnership is required by law or by agreements with an unaffiliated third party
to keep confidential; or (iii) has not been publicly disclosed by the General
Partner.
Section 8.6 Redemption Right
(a) Subject to Sections 8.6(b) and 8.6(c), each Limited Partner, other
than any Affiliate Limited Partner, shall have the right (the "Redemption
Right") to require the Partnership to redeem on a Specified Redemption Date all
or a portion of the Partnership Units held by such Limited Partner at a
redemption price equal to and in the form of the Cash Amount to be paid by the
Partnership. The Redemption Right shall be exercised pursuant to a Notice of
Redemption delivered to the Partnership (with a copy to the General Partner) by
the Limited Partner who is exercising the redemption right (the "Redeeming
Partner"); provided, however, that the Partnership shall not be obligated to
satisfy such Redemption Right if the General Partner purchases the Partnership
Units subject to the Notice of Redemption pursuant to Section 8.6(b). A Limited
Partner may not exercise the Redemption Right for less than one thousand (1,000)
Partnership Units or, if such Limited Partner holds less than one thousand
(1,000) Partnership Units, all of the Partnership Units held by such Partner.
The Redeeming Partner shall have no right, with respect to any Partnership Units
so redeemed, to receive any Partnership distributions paid on or after the
Specified Redemption Date, except in the event that the Specified Redemption
Date occurs after a Partnership Record Date and prior to the payment of the
distribution of Available Cash relating to such Partnership Record Date. The
Assignee of any Limited Partner may exercise the rights of such Limited Partner
pursuant to this Section 8.6, and such Limited Partner shall be deemed to have
assigned such rights to such Assignee and shall be bound by the exercise of such
rights by such Assignee. In connection with any exercise of such rights by such
Assignee on behalf of such Limited Partner, the Cash Amount shall be paid by the
Partnership directly to such Assignee and not to such Limited Partner.
(b) Notwithstanding the provisions of Section 8.6(a), a Limited Partner
that exercises the Redemption Right shall be deemed to have offered to sell the
Partnership Units described in the Notice of Redemption to the General Partner
and the General Partner may, in its sole and absolute discretion, elect to
purchase directly and acquire such Partnership Units by paying to the Redeeming
Partner either the Cash Amount or the REIT Shares Amount, as elected by the
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General Partner (in its sole and absolute discretion), on the Specified
Redemption Date, whereupon the General Partner shall acquire the Partnership
Units offered for redemption by the Redeeming Partner and shall be treated for
all purposes of this Agreement as the owner of such Partnership Units. If the
General Partner shall elect to exercise its right to purchase Partnership Units
under this Section 8.6(b) with respect to a Notice of Redemption, it shall so
notify the Redeeming Partner within five (5) Business Days after the receipt by
the General Partner of such Notice of Redemption. Unless the General Partner (in
its sole and absolute discretion) shall exercise its right to purchase
Partnership Units from the Redeeming Partner pursuant to its right to purchase
Partnership Units under this Section 8.6(b), the General Partner shall not have
any obligation to the Redeeming Partner or the Partnership with respect to the
Redeeming Partner's exercise of the Redemption Right except as expressly
provided to the contrary herein. In the event the General Partner shall exercise
its right to purchase Partnership Units with respect to the exercise of a
Redemption Right in the manner described in the first sentence of this Section
8.6(b), the Partnership shall have no obligation to pay any amount to the
Redeeming Partner with respect to such Redeeming Partner's exercise of such
Redemption Right, and each of the Redeeming Partner, the Partnership, and the
General Partner shall treat the transaction between the General Partner and the
Redeeming Partner for federal income tax purposes as a sale of the Redeeming
Partner's Partnership Units to the General Partner. Each Redeeming Partner
agrees to execute such documents as the General Partner may reasonably require
in connection with the issuance of REIT Shares upon exercise of the Redemption
Right.
(c) The Partnership shall not redeem for cash any Partnership Interest
held by the General Partner or any of its Affiliates.
ARTICLE 9
BOOKS, RECORDS, ACCOUNTING AND REPORTS
Section 9.1 Records and Accounting
The General Partner shall keep or cause to be kept at the principal
office of the Partnership those records and documents required to be maintained
by the Act and other books and records deemed by the General Partner to be
appropriate with respect to the Partnership's business, including, without
limitation, all books and records necessary to provide to the Limited Partners
any information, lists and copies of documents required to be provided pursuant
to Sections 8.5(a) and 9.3 hereof. Any records maintained by or on behalf of the
Partnership in the regular course of its business may be kept on, or be in the
form of, punch cards, magnetic tape, photographs, micrographics or any other
information storage device, provided that the records so maintained are
convertible into clearly legible written form within a reasonable period of
time. The books of the Partnership shall be maintained, for financial and tax
reporting purposes, on an accrual basis and in accordance with generally
accepted accounting principles, or such other basis as the General Partner
determines to be necessary or appropriate.
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Section 9.2 Partnership Year
The fiscal year of the Partnership shall be the calendar year.
Section 9.3 Reports
As soon as practicable, the General Partner shall cause to be mailed to
each Limited Partner, as of the last day of the calendar quarter, a report
containing unaudited financial statements of the Partnership or of the General
Partner, if such statements are prepared solely on a consolidated basis with the
General Partner, and such other information as may be required by applicable law
or regulation, or as the General Partner determines to be appropriate. Limited
Partners shall receive all annual and quarterly reports, proxy statements and
other shareholder communications transmitted from time to time by the General
Partner to holders of REIT Shares.
ARTICLE 10
TAX MATTERS
Section 10.1 Preparation of Tax Returns
The General Partner shall arrange for the preparation and
timely filing of all returns of Partnership income, gains, deductions, losses
and other items required of the Partnership for federal and state income tax
purposes and shall use all reasonable efforts to furnish the tax information
reasonably required by Limited Partners for federal and state income tax
reporting purposes.
Section 10.2 Tax Elections
Except as otherwise provided herein, the General Partner shall, in its
sole and absolute discretion, determine whether to make any available election
pursuant to the Code. The General Partner shall have the right to seek to revoke
any such election (including, without limitation, the election under Section 754
of the Code) upon the General Partner's determination in its sole and absolute
discretion that such revocation is in the best interests of the Partners.
Section 10.3 Tax Matters Partner
(a) The General Partner shall be the "tax matters partner" of the
Partnership for federal income tax purposes. Pursuant to Section 6230(e) of the
Code, upon receipt of notice from the IRS of the beginning of an administrative
proceeding with respect to the Partnership, the tax matters partner shall
furnish the IRS with the name, address, taxpayer identification number, and
profit interest of each of the Limited Partners and the Assignees; provided,
however, that such information is provided to the Partnership by the Limited
Partners and the Assignees.
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(b) The tax matters partner is authorized, but not required:
(1) to enter into any settlement with the IRS with
respect to any administrative or judicial proceedings
for the adjustment of Partnership items required to
be taken into account by a Partner for income tax
purposes (such administrative proceedings being
referred to as a "tax audit" and such judicial
proceedings being referred to as "judicial review"),
and in the settlement agreement the tax matters
partner may expressly state that such agreement shall
bind all Partners, except that such settlement
agreement shall not bind any Partner (i) who (within
the time prescribed pursuant to the Code and
Regulations) files a statement with the IRS providing
that the tax matters partner shall not have the
authority to enter into a settlement agreement on
behalf of such Partner or (ii) who is a "notice
partner" (as defined in Section 6231(a)(8) of the
Code) or a member of a "notice group" (as defined in
Section 6223(b)(2) of the Code);
(2) in the event that a notice of a final administrative
adjustment at the Partnership level of any item
required to be taken into account by a Partner for
tax purposes (a "final adjustment") is mailed to the
tax matters partner, to seek judicial review of such
final adjustment, including the filing of a petition
for readjustment with the Tax Court or the filing of
a complaint for refund with the United States Claims
Court or the District Court of the United States for
the district in which the Partnership's principal
place of business is located;
(3) to intervene in any action brought by any other
Partner for judicial review of a final adjustment;
(4) to file a request for an administrative adjustment
with the IRS and, if any part of such request is not
allowed by the IRS, to file an appropriate pleading
(petition or complaint) for judicial review with
respect to such request;
(5) to enter into an agreement with the IRS to extend the
period for assessing any tax which is attributable to
any item required to be taken into account by a
Partner for tax purposes, or any item affected by
such item; and
(6) to take any other action on behalf of the Partners or
the Partnership in connection with any tax audit or
judicial review proceeding to the extent permitted by
applicable law or regulations.
The taking of any action and the incurring of any expense by the tax
matters partner in connection with any such proceeding, except to the extent
required by law, is a matter in the sole and absolute discretion of the tax
matters partner and the provisions relating to indemnification of
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the General Partner set forth in Section 7.5 of this Agreement shall be fully
applicable to the tax matters partner in its capacity as such.
(c) The tax matters partner shall receive no compensation for its
services as such. All third party costs and expenses incurred by the tax matters
partner in performing its duties as such (including legal and accounting fees
and expenses) shall be borne by the Partnership. Nothing herein shall be
construed to restrict the Partnership from engaging an accounting firm to assist
the tax matters partner in discharging its duties hereunder, so long as the
compensation paid by the Partnership for such services is reasonable.
Section 10.4 Withholding
Each Limited Partner hereby authorizes the Partnership to withhold from
or pay on behalf of or with respect to such Limited Partner any amount of
federal, state, local, or foreign taxes that the General Partner determines that
the Partnership is required to withhold or pay with respect to any amount
distributable or allocable to such Limited Partner pursuant to this Agreement,
including, without limitation, any taxes required to be withheld or paid by the
Partnership pursuant to Sections 1441, 1442, 1445, or 1446 of the Code. Any such
amount paid on behalf of or with respect to a Limited Partner shall constitute a
loan by the Partnership to such Limited Partner, which loan shall be repaid by
such Limited Partner within fifteen (15) days after notice from the General
Partner that such repayment must be made. Any amounts payable by a Limited
Partner hereunder shall bear interest at the lesser of (A) the base rate on
corporate loans at large United States money center commercial banks, as
published from time to time in The Wall Street Journal, plus four (4) percentage
points, or (B) the maximum lawful rate of interest on such obligation, such
interest to accrue from the date such amount is due (i.e., fifteen (15) days
after demand) until such amount is paid in full.
ARTICLE 11
TRANSFERS AND WITHDRAWALS
Section 11.1 Transfer
(a) The term "transfer", when used in this Article 11 with respect to a
Partnership Unit, shall be deemed to refer to a transaction by which the General
Partner purports to assign all or any part of its General Partner Interest to
another Person or by which a Limited Partner purports to assign all or any part
of its Limited Partner Interest to another Person, and includes a sale,
assignment, gift, pledge, encumbrance, hypothecation, mortgage, exchange or any
other disposition by law or otherwise. The term "transfer" when used in this
Article 11 does not include any redemption of Partnership Interests by the
Partnership from a Limited Partner or any acquisition of Partnership Units from
a Limited Partner by the General Partner or from the General Partner pursuant to
Section 8.6.
(b) No Partnership Interest shall be transferred, in whole or in part,
except in accordance with the terms and conditions set forth in this Article 11
and Article 17 hereof. Any
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transfer or purported transfer of a Partnership Interest not made in accordance
with this Article 11 and Article 17 shall be null and void.
Section 11.2 Transfer of General Partner's Partnership Interests
(a) The General Partner may not transfer any of its General Partner
Interest or withdraw as General Partner except as provided in Section 11.2(b) or
Article 16.
(b) The General Partner may transfer any of its General Partner
Interest to any Subsidiary or other Affiliate of the General Partner, or to any
other Person or Persons if the General Partner consolidates or merges into such
Person or Persons or if the General Partner sells or otherwise transfers (or one
or more of its Subsidiaries sells or otherwise transfers) to such Person or
Persons, in one or more transactions, substantially all of the assets or earning
power of the General Partner or the Partnership, provided, however, nothing
contained herein shall restrict the General Partner's right to pledge,
hypothecate, encumber or grant bona fide security interests in the General
Partner's interests in this Partnership.
Section 11.3 Limited Partners' Rights to Transfer
(a) Subject to the provisions of any subscription agreement and
contribution agreement or similar agreement related to a Limited Partner's
acquisition of Partnership Units, and Sections 11.3(c), 11.3(d), 11.3(e), 11.4
and 11.5 hereof, a Limited Partner may transfer, with or without the consent of
the General Partner, all or any portion of its Partnership Interest, or any of
such Limited Partner's economic rights as a Limited Partner.
(b) If a Limited Partner is subject to Incapacity, the executor,
administrator, trustee, committee, guardian, conservator or receiver of such
Limited Partner's estate shall have all the rights of a Limited Partner, but not
more rights than those enjoyed by other Limited Partners, for the purpose of
selling or managing the estate and such power as the Incapacitated Limited
Partner possessed to transfer all or any part of his or its interest in the
Partnership. The Incapacity of a Limited Partner, in and of itself, shall not
dissolve or terminate the Partnership.
(c) The General Partner may prohibit any transfer by a Limited Partner
of its Partnership Units if, in the opinion of legal counsel to the Partnership,
such transfer would (i) not be exempt from registration under the Securities Act
of 1933; (ii) otherwise violate any federal or state securities laws or
regulations applicable to the Partnership or the Partnership Unit; or (iii)
cause the Partnership to register the Partnership Units under Section 12(g) of
the Securities Exchange Act of 1934, as amended or any successor provision, and
the General Partner may condition any such transfer upon its receipt of a
no-action letter from the Securities and Exchange Commission or an opinion of
counsel in each case in form and substance reasonably satisfactory to the
General Partner.
(d) No transfer by a Limited Partner of its Partnership Units may be
made to any Person if (i) in the opinion of legal counsel for the Partnership,
it would result in the Partnership
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being treated as an association taxable as a corporation, or (ii) such transfer
is effectuated through an "established securities market" or a "secondary
market" (or the substantial equivalent thereof) within the meaning of Section
7704 of the Code.
(e) No transfer of any Partnership Units may be made to a lender to the
Partnership or any Person who is related (within the meaning of Regulations
Section 1.752-4(b)) to any lender to the Partnership whose loan constitutes a
Nonrecourse Liability, without the consent of the General Partner, in its sole
and absolute discretion, provided that as a condition to such consent the lender
will be required to enter into an arrangement with the Partnership and the
General Partner to exchange or redeem for the Cash Amount any Partnership Units
in which a security interest is held simultaneously with the time at which such
lender would be deemed to be a partner in the Partnership for purposes of
allocating liabilities to such lender under Section 752 of the Code.
Section 11.4 Substituted Limited Partners
(a) No Limited Partner shall have the right to substitute a transferee
as a Limited Partner in his place. The General Partner shall, however, have the
right to consent to the admission of a transferee of the interest of a Limited
Partner pursuant to this Section 11.4 as a Substituted Limited Partner, which
consent may be given or withheld by the General Partner in its sole and absolute
discretion. The General Partner's failure or refusal to permit a transferee of
any such interests to become a Substituted Limited Partner shall not give rise
to any cause of action against the Partnership or any Partner.
(b) A transferee who has been admitted as a Substituted Limited Partner
in accordance with this Article 11 shall have all the rights and powers and be
subject to all the restrictions and liabilities of a Limited Partner under this
Agreement.
(c) Upon the admission of a Substituted Limited Partner, the General
Partner shall amend Exhibit A to reflect the name, address, number of
Partnership Units, and Percentage Interest of such Substituted Limited Partner
and to eliminate or adjust, if necessary, the name, address and interest of the
predecessor of such Substituted Limited Partner.
Section 11.5 Assignees
If the General Partner, in its sole and absolute discretion, does not
consent to the admission of any permitted transferee under Section 11.3 as a
Substituted Limited Partner, as described in Section 11.4, such transferee shall
be considered an Assignee for purposes of this Agreement. An Assignee shall be
deemed to have had assigned to it, and shall be entitled to receive
distributions from the Partnership and the share of Net Income, Net Losses,
Recapture Income, and any other items, gain, loss deduction and credit of the
Partnership attributable to the Partnership Units assigned to such transferee,
but shall not be deemed to be a holder of Partnership Units for any other
purpose under this Agreement except as provided in Section 8.6, and shall not be
entitled to vote such Partnership Units in any matter presented to the Limited
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Partners for a vote (such Partnership Units being deemed to have been voted on
such matter in the same proportion as all other Partnership Units held by
Limited Partners are voted). In the event any such transferee desires to make a
further assignment of any such Partnership Units, such transferee shall be
subject to all the provisions of this Article 11 to the same extent and in the
same manner as any Limited Partner desiring to make an assignment of Partnership
Units.
Section 11.6 General Provisions
(a) No Limited Partner may withdraw from the Partnership other than as
a result of a permitted transfer of all of such Limited Partner's Partnership
Units in accordance with this Article 11 or pursuant to redemption of all of its
Partnership Units under Section 8.6.
(b) Any Limited Partner who shall transfer all of its Partnership Units
in a transfer permitted pursuant to this Article 11 shall cease to be a Limited
Partner upon the admission of all Assignees of such Partnership Units as
Substituted Limited Partners. Similarly, any Limited Partner who shall transfer
all of its Partnership Units pursuant to a redemption of all of its Partnership
Units under Section 8.6 shall cease to be a Limited Partner.
(c) Transfers pursuant to this Article 11 may only be made on the first
day of a fiscal quarter of the Partnership, unless the General Partner otherwise
agrees.
(d) If any Partnership Interest is transferred or assigned during any
quarterly segment of the Partnership Year in compliance with the provisions of
this Article 11 or redeemed or transferred pursuant to Section 8.6, on any day
other than the first day of a Partnership Year, then Net Income, Net Losses,
each item thereof and all other items attributable to such interest for such
Partnership Year shall be divided and allocated between the transferor Partner
and the transferee Partner by taking into account their varying interests during
the Partnership Year in accordance with Section 706(d) of the Code, using any
method permitted under the applicable Regulations and selected by the General
Partner in its sole and absolute discretion. All distributions of Available Cash
attributable to such Partnership Unit with respect to which the Partnership
Record Date is before the date of such transfer, assignment, or redemption shall
be made to the transferor Partner or the Redeeming Partner, as the case may be,
and in the case of a transfer or assignment other than a redemption, all
distributions of Available Cash thereafter attributable to such Partnership Unit
shall be made to the transferee Partner.
ARTICLE 12
ADMISSION OF PARTNERS
Section 12.1 Admission of Successor General Partner
A permitted successor to all of the General Partner Interest who is
proposed to be admitted as a successor General Partner shall be admitted to the
Partnership as the General Partner, effective upon such transfer. Any such
transferee shall carry on the business of the Partnership without dissolution.
In each case, the admission shall be subject to the successor General Partner
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executing and delivering to the Partnership an acceptance of all of the terms
and conditions of this Agreement and such other documents or instruments as may
be required to effect the admission. In the case of such admission on any day
other than the first day of a Partnership Year, all items attributable to the
General Partner Interest for such Partnership year shall be allocated between
the transferring General Partner and such successor as provided in Section
11.6(d) hereof.
Section 12.2 Admission of Additional Limited Partners
(a) After the admission to the Partnership of the Initial Limited
Partner on the date hereof, a Person who makes a Capital Contribution to the
Partnership in accordance with this Agreement shall be admitted to the
Partnership as an Additional Limited Partner only upon furnishing to the General
Partner (i) evidence of acceptance in form satisfactory to the General Partner
of all of the terms and conditions of this Agreement, including, without
limitation, the power of attorney granted in Section 2.4 hereof and (ii) such
other documents or instruments as may be required in the discretion of the
General Partner in order to effect such Person's admission as an Additional
Limited Partner.
(b) Notwithstanding anything to the contrary in this Section 12.2, no
Person shall be admitted as an Additional Limited Partner without the consent of
the General Partner, which consent may be given or withheld in the General
Partner's sole and absolute discretion. The admission of any Person as an
Additional Limited Partner shall become effective on the date upon which the
name of such Person is recorded on the books and records of the Partnership,
following the consent of the General Partner to such admission.
(c) If any Additional Limited Partner is admitted to the Partnership on
any day other than the first day of a Partnership Year, then Net Income, Net
Losses, each item thereof and all other items allocable among Partners and
Assignees for such Partnership Year shall be allocated among such Additional
Limited Partner and all other Partners and Assignees by taking into account
their varying interests during the Partnership Year in accordance with Section
706(d) of the Code, using any method permitted under the applicable Regulations
and selected by the General Partner in its sole and absolute discretion. All
distributions of Available Cash with respect to which the Partnership Record
Date is before the date of such admission shall be made solely to Partners and
Assignees other than the Additional Limited Partner and all distributions of
Available Cash thereafter shall be made to all of the Partners and Assignees
including such Additional Limited Partner.
Section 12.3 Amendment of Agreement and Certificate of Limited
Partnership
For the admission to the Partnership of any Partner, the General
Partner shall, subject to the requirements of Section 4.2, take all steps
necessary and appropriate under the Act to amend the records of the Partnership
and, if necessary, to prepare as soon as practical an amendment of this
Agreement (including an amendment of Exhibit A) and, if required by law, shall
prepare and file an amendment to the Certificate and may for this purpose
exercise the power of attorney granted pursuant to Section 2.4 hereof.
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ARTICLE 13
DISSOLUTION, LIQUIDATION AND TERMINATION
Section 13.1 Dissolution
The Partnership shall not be dissolved by the admission of Substituted
Limited Partners or Additional Limited Partners or by the admission of a
successor General Partner in accordance with the terms of this Agreement. Upon
the withdrawal of the General Partner, any successor General Partner shall
continue the business of the Partnership. The Partnership shall dissolve, and
its affairs shall be wound up, upon the first to occur of any of the following
("Dissolution Events"):
(a) the expiration of its term as provided in Section 2.5 hereof.
(b) an event of withdrawal of the General Partner, as defined in the
Act (other than an event of bankruptcy), unless within ninety (90) days after
such event of withdrawal a majority in interest of the remaining Partners agree
in writing to continue the business of the Partnership and to the appointment,
effective as of the date of withdrawal, of a successor General Partner;
(c) an election to dissolve the Partnership made by the General
Partner, in its sole and absolute discretion;
(d) entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
(e) the sale of all or substantially all of the assets and properties
of the Partnership; or
(f) a final and non-appealable judgment is entered by a court of
competent jurisdiction ruling that the General Partner is bankrupt or insolvent,
or a final and non-appealable order for relief is entered by a court with
appropriate jurisdiction against the General Partner, in each case under any
federal or state bankruptcy or insolvency laws as now or hereafter in effect,
unless prior to the entry of such order or judgment all of the remaining
Partners agree in writing to continue the business of the Partnership and to the
appointment, effective as of a date prior to the date of such order or judgment,
of a substitute General Partner.
Section 13.2 Winding Up
(a) The General Partner shall provide written notice to the Limited
Partners of the occurrence of a Dissolution Event, giving them at least 20 days
in which to exercise the Redemption Right prior to the distribution of any
proceeds from the liquidation of the Partnership pursuant to this Section
13.2(a), unless such occurs by virtue of events described in paragraphs (a), (b)
(if involuntary), (d) or (f) of Section 13.1, in which case the General Partner
shall provide written notice to the Limited Partners promptly after the
occurrence of such event.
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Upon the occurrence of a Dissolution Event or a Terminating Capital Transaction,
the Partnership shall continue solely for the purposes of winding up its affairs
in an orderly manner, liquidating its assets, and satisfying the claims of its
creditors and Partners. No Partner shall take any action that is inconsistent
with, or not necessary to or appropriate for, the winding up of the
Partnership's business and affairs. The General Partner, or, in the event there
is no remaining General Partner, any Person elected by a majority in interest of
the Limited Partners (the General Partner or such other Person being referred to
herein as the "Liquidator"), shall be responsible for overseeing the winding up
and dissolution of the Partnership and shall take full account of the
Partnership's liabilities and property and the Partnership property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof,
and the proceeds therefrom (which may, to the extent determined by the General
Partner, include shares of stock in the General Partner) shall be applied and
distributed in the following order:
(1) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors
other than the Partners;
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the Partners,
pro rata in accordance with amounts owed to each such
Partner;
(3) Third, one hundred percent (100%) to the Limited
Partners, other than any Affiliate Limited Partner,
pro rata based on the number of Limited Partner Units
held by such Partners, until each such Partner has
received an amount equal to the amount, if any, in
such Partner's Cumulative Unpaid Accrued Return
Account and Cumulative Unpaid Priority Distribution
Account plus the aggregate Priority Distribution
Amounts for each Partnership Record Date (if any)
occurring subsequent to the Dissolution Event;
(4) The balance, if any, after giving effect to all
contributions, distributions, and allocations for all
periods, to those Partners with positive Capital
Account balances, to the extent of such positive
Capital Account balances.
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13.
(b) Notwithstanding the provisions of Section 13.2(a) hereof which
require liquidation of the assets of the Partnership, but subject to the order
of priorities set forth therein, if prior to or upon dissolution of the
Partnership, the Liquidator determines that an immediate sale of part or all of
the Partnership's assets would be impractical, would cause undue loss to the
Partners, or would be inconsistent with the terms of any binding agreement into
which the Partnership entered prior to the Dissolution Event or Terminating
Capital Transaction, the Liquidator may, in its sole and absolute discretion,
defer for a reasonable time the liquidation of any assets except those necessary
to satisfy liabilities of the Partnership (including those to Partners as
creditors) and/or distribute to the Partners, in lieu of cash, in accordance
with the provisions of Section 13.2(a)
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hereof, interests in such Partnership assets as the Liquidator deems not
suitable for liquidation. Any such distributions in kind shall be made only if,
in the good faith judgment of the Liquidator, such distributions in kind are in
the best interest of the Partners, and shall be subject to such conditions
relating to the disposition and management of such properties as the Liquidator
deems reasonable and equitable and to any agreements governing the operation or
disposition of such properties at such time. The Liquidator shall determine the
fair market value of any property distributed in kind using such reasonable
method of valuation as it may adopt.
(c) In the discretion of the Liquidator, a pro rata portion of the
distributions that would otherwise be made to the General Partner and Limited
Partners pursuant to this Article 13 may be:
(1) distributed to a trust established for the benefit of
the General Partner and Limited Partners for the
purposes of liquidating Partnership assets,
collecting amounts owed to the Partnership, and
paying any contingent or unforeseen liabilities or
obligations of the Partnership or the General Partner
arising out of or in connection with the Partnership.
The assets of any such trust shall be distributed to
the General Partner and Limited Partners from time to
time, in the reasonable discretion of the Liquidator,
in the same proportions as the amount distributed to
such trust by the Partnership would otherwise have
been distributed to the General Partner and Limited
Partners pursuant to this Agreement; or
(2) withheld or escrowed to provide a reasonable reserve
for Partnership liabilities (contingent or otherwise)
and to reflect the unrealized portion of any
installment obligations owed to the Partnership,
provided that such withheld or escrowed amounts shall
be distributed to the General Partner and Limited
Partners in the manner and order of priority set
forth in Section 13.2.A as soon as practicable.
Section 13.3 Negative Capital Accounts
(a) Except as provided in Section 13.3(b), no Partner, General or
Limited, shall be liable to the Partnership or to any other Partner for any
negative balance outstanding in each such Partner's Capital Account, whether
such negative Capital Account results from the allocation of Net Losses or other
items of deduction and loss to such Partner or from distributions to such
Partner.
(b) If any Limited Partner who elects to be added to Exhibit F (an
"Electing Partner"), on the date of the "liquidation" of his respective interest
in the Partnership (within the meaning of Regulations Section
1.704-1(b)(2)(ii)(g)), has a negative balance in his Capital Account, then such
Electing Partner shall contribute in cash to the capital of the Partnership the
lesser of (i) the maximum amount (if any such maximum amount is stated) listed
beside such Electing Partner's name on Exhibit F or (ii) the amount required to
increase his Capital Account as of such date to
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zero. Any such contribution required of a Partner hereunder shall be made on or
before the later of (i) the end of the Partnership fiscal year in which the
interest of such Partner is liquidated or (ii) the ninetieth (90th) day
following the date of such liquidation. Notwithstanding any provision hereof to
the contrary, all amounts so contributed by a Partner to the capital of the
Partnership shall, upon the liquidation of the Partnership under this Article
13, be first paid to any then creditors of the Partnership, including Partners
that are Partnership creditors (in the order provided in Section 13.2), and any
remaining amount shall be distributed to the other Partners then having positive
balances in their respective Capital Accounts in proportion to such positive
balances. After the death of an Electing Partner, the executor of the estate of
such an Electing Partner may elect to reduce (or eliminate) the deficit Capital
Account restoration obligation of such an Electing Partner pursuant to this
Section 13.3(b). Such election may be made by such executor by delivering to the
General Partner within two hundred seventy (270) days of the death of such an
Electing Partner a written notice setting forth the maximum deficit balance in
his Capital Account that such executor agrees to restore under this Section
13.3(b), if any. If such executor does not make such a timely election (whether
or not the balance in his Capital Account is negative at such time), then such
Electing Partner's estate (and the beneficiaries thereof who receive
distribution of Partnership Units therefrom) shall be deemed to have a deficit
Capital Account restoration obligation as set forth pursuant to the terms of
this Section 13.3(b).
Section 13.4 Deemed Distribution and Recontribution
Notwithstanding any other provision of this Article 13, in the event
the Partnership is considered liquidated within the meaning of Regulations
Section 1.704-l(b)(2)(ii)(g), but no Dissolution Event has occurred, the
Partnership's property shall not be liquidated, the Partnership's liabilities
shall not be paid or discharged, and the Partnership's affairs shall not be
wound up.
Section 13.5 Rights of Limited Partners
Except as otherwise provided in this Agreement, each Limited Partner
shall look solely to the assets of the Partnership for the return of its Capital
Contributions and shall have no right or power to demand or receive property
other than cash from the Partnership, and shall have no rights as a shareholder
or as a creditor of the General Partner by virtue of being a Limited Partner.
Except as otherwise provided in this Agreement, no Limited Partner shall have
priority over any other Partner as to the return of its Capital Contributions,
distribution or allocations.
Section 13.6 Notice of Dissolution
In the event a Dissolution Event occurs or an event occurs that would,
but for the provisions of an election or objection by one or more Partners
pursuant to Section 13.1, result in a dissolution of the Partnership, the
General Partner shall provide within thirty (30) days thereafter written notice
thereof to each of the Partners.
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Section 13.7 Termination of Partnership and Cancellation of
Certificate of Limited Partnership
Upon the completion of the liquidation of the Partnership cash and
property as provided in Section 13.2 hereof, the Partnership shall be
terminated, a certificate of cancellation shall be filed, and all qualifications
of the Partnership as a foreign limited partnership in jurisdictions other than
the State of Georgia shall be canceled and such other actions as may be
necessary to terminate the Partnership shall be taken.
Section 13.8 Reasonable Time for Winding-Up
A reasonable time shall be allowed for the orderly winding-up of the
business and affairs of the Partnership and the liquidation of its assets
pursuant to Section 13.2 hereof, in order to minimize any losses otherwise
attendant upon such winding-up, and the provisions of this Agreement shall
remain in effect between the Partners during the period of liquidation.
Section 13.9 Waiver of Partition
Each Partner hereby waives any right to partition of the Partnership
property.
ARTICLE 14
AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS
Section 14.1 Amendments
(a) Amendments to this Agreement may be proposed by the General Partner
or by any Limited Partners holding twenty-five percent (25%) or more of the
Partnership Interests. Following such proposal, the General Partner shall submit
any proposed amendment to the Limited Partners. The General Partner shall seek
the written vote of the Partners on the proposed amendment or shall call a
meeting to vote thereon and to transact any other business that it may deem
appropriate. For purposes of obtaining a written vote, the General Partner may
require a response within a reasonable specified time, but not less than fifteen
(15) Business Days, and failure to respond in such time period shall constitute
a vote which is consistent with the General Partner's recommendation with
respect to the proposal. Except as provided in Section 14.1(b), 14.1(c) or
14.1(d), a proposed amendment shall be adopted and be effective as an amendment
hereto if it (i) is approved by the General Partner and it receives the Consent
of Partners holding a majority of the Percentage Interests of the Limited
Partners (including Limited Partner Interests held by the General Partner,
except as provided in Section 14.1(d)), and except as provided in Section
14.1(b) or 14.1(c).
(b) Notwithstanding Section 14.1(a), the General Partner shall have the
power, without the consent of the Limited Partners, to amend this Agreement as
may be required to facilitate or implement any of the following purposes:
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(1) to add to the obligations of the General Partner or
surrender any right or power granted to the General
Partner or any Affiliate of the General Partner for
the benefit of the Limited Partners;
(2) to reflect the admission, substitution, termination,
or withdrawal of Partners in accordance with this
Agreement;
(3) to set forth the designations, rights, powers,
duties, and preferences of the holders of any
additional Partnership Interests issued pursuant to
Section 4.2 hereof;
(4) to reflect a change that is of an inconsequential
nature and does not adversely affect the Limited
Partners in any material respect, or to cure any
ambiguity, correct or supplement any provision in
this Agreement not inconsistent with law or with the
other provisions of this Agreement, or make other
changes with respect to matters arising under this
Agreement that will not be inconsistent with law or
with the provisions of this Agreement;
(5) to reflect the contribution to the Partnership of
substantially all assets of the General Partner
(which amendments in such case may include, without
limitation, the elimination of all provisions of this
Agreement providing for distribution and allocations
priorities with respect to the Limited Partners); and
(6) to satisfy any requirements, conditions, or
guidelines contained in any order, directive,
opinion, ruling or regulation of a federal or state
agency or contained in federal or state law.
The General Partner shall provide notice to the Limited Partners when any action
under this Section 14.1(b) is taken.
(c) Notwithstanding Section 14.1(a) and 14.1(b) hereof, this Agreement
shall not be amended without the Consent of each Partner adversely affected if
such amendment would (i) convert a Limited Partner's interest in the Partnership
into a General Partner Interest, (ii) modify the limited liability of a Limited
Partner, (iii) alter rights of the Partner to receive distributions pursuant to
Article 5 or Article 13, or the allocations specified in Article 6 (except as
permitted pursuant to Section 4.2 and Section 14.1(b)(3) hereof), (iv) alter or
modify the Redemption Right and REIT Shares Amount as set forth in Section 8.6,
and the related definitions, (v) cause the termination of the Partnership prior
to the time set forth in Sections 2.5 or 13.1, or (vi) amend this Sections 4.2,
7.4(f) or 14.1(c).
(d) Notwithstanding Section 14.1(a) or Section 14.1(b) hereof, the
General Partner shall not amend Article 16 or Sections 7.3, 7.4, 7.5, 11.3,
13.2(a) (to the extent that any
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Partnership Units are outstanding that entitle the Partners (other than the
General Partner and its Affiliates) holding such Partnership Units to priority
distributions under Section 13.2(a)(3)), 14.1(a) or 14.2 without the Consent of
a majority of the Percentage Interests of the Limited Partners other than an
Affiliate Limited Partner.
Section 14.2 Meetings of the Partners
(a) Meetings of the Partners may be called by the General Partner and
shall be called upon the receipt by the General Partner of a written request by
Limited Partners holding twenty percent (20%) or more of the Percentage
Interests. The call shall state the nature of the business to be transacted and
notice of any such meeting shall be given to all Partners not less than seven
(7) days nor more than thirty (30) days prior to the date of such meeting.
Partners may vote in person or by proxy at such meeting. Whenever the vote or
Consent of the Partners is permitted or required under this Agreement, such vote
or Consent may be given at a meeting of the Partners or may be given in
accordance with the procedure prescribed in Section 14.1(a) hereof. Except as
otherwise expressly provided in this Agreement, the Consent of holders of a
majority of the Percentage Interests held by Limited Partners (including Limited
Partnership Interests held by the General Partner) shall control.
(b) Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth the
action so taken is signed by a majority of the Percentage Interests of the
Partners (or such other percentage as is expressly required by this Agreement).
Such consent may be in one instrument or in several instruments and shall have
the same force and effect as a vote of a majority of the Percentage Interests of
the Partners (or such other percentage as is expressly required by this
Agreement). Such consent shall be filed with the General Partner. An action so
taken shall be deemed to have been taken at a meeting held on the effective date
so certified.
(c) Each Limited Partner may authorize any Person or Persons to act for
him by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or participating
at a meeting. Every proxy must be signed by the Limited Partner or his
attorney-in-fact. No proxy shall be valid after the expiration of eleven (11)
months from the date thereof unless otherwise provided in the proxy. Every proxy
shall be revocable at the pleasure of the Limited Partner executing it, such
revocation to be effective upon the Partnership's receipt of written notice of
such revocation from the Limited Partner executing such proxy.
(d) Each meeting of the Partners shall be conducted by the General
Partner or such other Person as the General Partner may appoint pursuant to such
rules for the conduct of the meeting as the General Partner or such other Person
deems appropriate. Without limitation, meetings of Partners may be conducted in
the same manner as meetings of the shareholders of the General Partner and may
be held at the same time, and as part of, meetings of the shareholders of the
General Partner.
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ARTICLE 15
GENERAL PROVISIONS
Section 15.1 Addresses and Notice
Any notice, demand, request or report required or permitted to be given
or made to a Partner or Assignee under this Agreement shall be in writing and
shall be deemed given or made when delivered to the Partner or Assignee at the
address set forth in Exhibit A or such other address of which the Partner shall
notify the General Partner in writing (or if delivery is refused, when delivery
is attempted but refused.)
Section 15.2 Titles and Captions
All article or section titles or captions in this Agreement are for
convenience only. They shall not be deemed part of this Agreement and in no way
define, limit, extend or describe the scope or intent of any provisions hereof.
Except as specifically provided otherwise, references to "Articles" and
"Sections" are to Articles and Sections of this Agreement.
Section 15.3 Pronouns and Plurals
Whenever the context may require, any pronoun used in this Agreement
shall include the plural and vice versa.
Section 15.4 Further Action
The parties shall execute and deliver all documents, provide all
information and take or refrain from taking action as may be necessary or
appropriate to achieve the purpose of this Agreement.
Section 15.5 Binding Effect
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns.
Section 15.6 Creditors
Other than as expressly set forth herein with respect to the
Indemnities, none of the provisions of this Agreement shall be for the benefit
of, or shall be enforceable by, any creditors of the Partnership.
Section 15.7 Waiver
No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a
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breach thereof shall constitute waiver of any such breach or any other covenant,
duty, agreement or condition.
Section 15.8 Counterparts
This Agreement may be executed in counterparts, all of which together
shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Agreement immediately
upon affixing its signature hereto.
Section 15.9 Applicable Law
This Agreement shall be construed and enforced in accordance with and
governed by the laws of the State of Georgia, without regard to the principles
of conflicts of law.
Section 15.10 Invalidity of Provisions
If any provision of this Agreement is or becomes invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
Section 15.11 Entire Agreement
This Agreement contains the entire understanding and agreement among
the Partners with respect to the subject matter hereof and supersedes any other
prior written or oral understandings or agreement among them with respect
thereto.
ARTICLE 16
CONSOLIDATION, MERGER OR SALE OF
ASSETS OF THE GENERAL PARTNER
Section 16.1 Triggering Events
For the purposes of this Article 16, the effective date and time of any
of the following events shall be deemed to be a "Triggering Event": (w) if the
General Partner consolidates with, or merges into, any other Person, and the
General Partner is not the continuing or surviving corporation of such
consolidation or merger, (x) if any Person consolidates with, or merges into,
the General Partner, and the General Partner is the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding REIT Shares are
converted into or exchanged for stock or other securities of any other Person or
cash or any other property, or (y) if the General Partner sells or otherwise
transfers (or one or more of its Subsidiaries sells or otherwise transfers) to
any Person or Persons, in one or more transactions, substantially all of the
assets or earning power of the General Partner or the Partnership.
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Section 16.2 From and After the Occurrence of a Triggering Event
Effective on the date of each Triggering Event, the Redemption Right
shall be adjusted as provided in this Section 16.2.
(a) From and after a Triggering Event and until the occurrence, if any,
of a subsequent Triggering Event (in which case a further adjustment shall be
made pursuant to this Section 16.2), each and every reference contained in this
Agreement to a "REIT Share" or "REIT Shares" shall be deemed to be a reference
to a share or shares, respectively (each, a "Replacement Share"; collectively,
"Replacement Shares"), of the common stock, or, if such Person shall have no
common stock, the equity securities or other equity interest having power to
control or direct the management (the "Common Stock") of: (a) in the case of a
Triggering Event described in clause (w) or (x) of the first sentence of Section
16.1, (1) the Person that is the issuer of any securities into which the REIT
Shares are converted in such merger or consolidation, and (2) if no securities
are so issued, the Person that is the other party to such merger or
consolidation; or (b) in the event of a Triggering Event described in clause (y)
of the first sentence of Section 16.1, the Person that is the party receiving
the largest portion of the assets or earning power transferred pursuant to such
transaction or transactions. Any issuer of "Replacement Shares" shall be
referred to as an "Issuer."
(b) From and after a Triggering Event, the "Conversion Factor" shall be
adjusted in a manner to have the same effect as though the Units had been
exchanged for REIT Shares immediately prior to consummation of the Triggering
Event and the holder had received the same consideration in the Triggering Event
as was received by holders of REIT Shares.
(c) In the event that on the date of a Triggering Event, the shares of
a Person are not publicly held or not so listed or traded or if, for the ten
days prior to such date, no market maker is making a market in the shares of a
Person, the Average Trading Price of the shares of such Person shall be the fair
value of the shares as determined in good faith by the General Partner, which
determination shall be binding on all of the Limited Partners.
(d) From and after a Triggering Event, each and every reference to the
"General Partner" in Section 8.6 shall be deemed to be a reference to the Issuer
of the Replacement Shares. From and after a Triggering Event, the "Average
Trading Price" of a REIT Share or a Replacement Share, as applicable shall be
substituted for the "Value" of the same for the purposes of determining the Cash
Amount.
Section 16.3 Application to Later Transactions
This Article 16 shall apply to the initial Triggering Event and shall
continue to apply to each subsequent Triggering Event.
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Section 16.4 Waivers and Amendments
This Article 16 shall only be amended as provided in Section 14.1(d) of
this Agreement and shall be deemed included in such section for all purposes;
provided that the General Partner may amend this Article 16, without the consent
of the Limited Partners for the purposes set forth at Section 14.1(b)(4) prior
to a Triggering Event.
ARTICLE 17
INVESTMENT REPRESENTATION
17.1 Investment. The Limited Partners represent to the Partnership and
to the General Partner that they are acquiring their respective Units for their
own accounts for investment purposes only, and without a view to any
distribution of their Units.
17.2 Restrictive Legend. If at any time the Units are evidenced by
certificates or other documents, each such certificate or other document will
contain a legend stating that (i) such Units (1) have not been registered under
the Securities Act of 1933 or the securities or blue sky laws of any state or
other jurisdiction, (2) have been issued pursuant to one or more claims of
exemption from the registration provisions of the Securities Act and any state
or other jurisdiction's securities laws which may be applicable, and (3) may not
be sold, transferred or assigned without compliance with the registration
provisions of the Securities Act or in compliance with one or more available
exemptions therefrom, and (ii) the sale, transfer or assignment of such Units is
further subject to restrictions contained in this Agreement and a subscription
agreement, contribution agreement or other agreement with the Partnership or its
General Partner pursuant to which Limited Partner subscribed for his or her
Units, and such Units may not be sold, transferred or assigned unless and to the
extent permitted by, and in accordance with, the provisions of this Agreement
and such subscription, contribution and other agreements with the Partnership or
the General Partner.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
GENERAL PARTNER:
IRT PROPERTY COMPANY
By: /s/ James G. Levy
----------------------------------
Name: James G. Levy
Title: Vice President & Treasurer
LIMITED PARTNER:
IRT MANAGEMENT COMPANY
By: /s/ Mary M. Thomas
----------------------------------
Name: Mary M. Thomas
Title: Executive Vice President
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<PAGE> 63
LIMITED PARTNERS:
TAMARAC TRUST, TRUST NO. 101, BY
MIBEF CORPORATE SERVICES, INC., AS
TRUSTEE
By: /s/ James S. Levin
-----------------------------------
Name: James S. Levin
-----------------------------------
Title: Agent
-----------------------------------
RIVERSIDE TRUST, TRUST NO. 102,
BY MIBEF CORPORATE SERVICES, INC., AS
TRUSTEE
By: /s/ James S. Levin
-----------------------------------
Name: James S. Levin
-----------------------------------
Title: Agent
-----------------------------------
CHARLOTTE SQUARE TRUST,
TRUST NO. 103, BY MIBEF CORPORATE
SERVICES, INC., AS TRUSTEE
By: /s/ James S. Levin
-----------------------------------
Name: James S. Levin
-----------------------------------
Title: Agent
-----------------------------------
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FIRST AMENDMENT
TO THE
AGREEMENT OF
LIMITED PARTNERSHIP
OF
IRT PARTNERS L.P.
THIS FIRST AMENDMENT TO THE AGREEMENT OF LIMITED PARTNERSHIP OF IRT
PARTNERS L.P. (the "Amendment"), dated as of August 12, 1998, is entered into by
and among IRT PROPERTY COMPANY, a Georgia corporation (the "General Partner"),
IRT MANAGEMENT COMPANY, a Georgia corporation (the "Initial Limited Partner"),
and MIBEF CORPORATE SERVICES, INC., as Trustee of (i) the Tamarac Trust No. 101
(the "Tamarac Trust"), (ii) Riverside Trust No. 102 (the "Riverside Trust"), and
(iii) Charlotte Square Trust, Trust No. 103 (the "Charlotte Trust"), together
with any other Persons who become Partners in the Partnership as provided herein
(as such terms are defined hereinafter).
WHEREAS, the parties hereto entered into that certain Agreement of
Limited Partnership of IRT Partners L.P. (the "Agreement"), dated as of July 14,
1998; and
WHEREAS, the parties hereto wish to clarify the Agreement in certain
respects;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
1. Definitions. The terms, phrases or other references set forth in the
Agreement shall have the same meaning when used herein, unless otherwise
indicated, and they are hereby incorporated herein and made a part hereof.
2. Amendment of Article 1. The definition of "Priority Distribution
Amount" in Article 1 of the Agreement is hereby amended to read in its entirety
as follows:
"'Priority Distribution Amount' means with respect to any Limited
Partnership Unit (other than Units held by an Affiliate Limited Partner)
outstanding on a Partnership Record Date the product of: (i) the cash
distribution per REIT Share (including any distribution designated by
the General Partner as capital gain pursuant to Section 857(b)(3)(C) of
the Code or a return of capital) declared by the General Partner on the
Partnership Record Date; (ii) the Conversion Factor; and (iii) a
fraction, the denominator of which is the actual number of days in the
quarter or other period subsequent to the date the last cash dividend or
distribution was paid with respect to the REIT Shares through the
payment date for the cash dividend or distribution for the REIT Shares
to which such Partnership
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Record Date relates, and the numerator of which is the actual number of
days in such quarter or such other period that such Limited Partnership
Unit was outstanding."
3. Effect of Amendment. Except as expressly provided in this Amendment,
the provisions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have entered into this Amendment
as of the date first above written.
GENERAL PARTNER:
IRT PROPERTY COMPANY
By:
---------------------------------
Name: James G. Levy
Title: Vice President & Treasurer
LIMITED PARTNER:
IRT MANAGEMENT COMPANY
By:
---------------------------------
Name: Mary M. Thomas
Title: Executive Vice President
and Chief Financial Officer
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<PAGE> 66
LIMITED PARTNERS:
TAMARAC TRUST, TRUST NO.
101, BY MIBEF CORPORATE
SERVICES, INC., AS TRUSTEE
By: /s/ JAMES S. LEVIN
---------------------------------
Name: James S. Levin
---------------------------------
Title: Agent
---------------------------------
RIVERSIDE TRUST, TRUST NO.
102, BY MIBEF CORPORATE
SERVICES, INC., AS TRUSTEE
By: /s/ JAMES S. LEVIN
---------------------------------
Name: James S. Levin
---------------------------------
Title: Agent
---------------------------------
CHARLOTTE SQUARE TRUST,
TRUST NO. 103, BY MIBEF
CORPORATE SERVICES, INC., AS
TRUSTEE
By: /s/ JAMES S. LEVIN
---------------------------------
Name: James S. Levin
---------------------------------
Title: Agent
---------------------------------
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