<PAGE>
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
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Date of Report (Date of earliest event reported): June 23, 1995
Merry Land & Investment Company, Inc.
(Exact name of registrant as specified in its charter)
Georgia 001-11081
(State or other jurisdiction of incorporation) (Commission File Number)
58-0961876
(I.R.S. Employer I.D. Number)
624 Ellis Street, Augusta, Georgia 30901
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 706/722-6756
____________________________________________________________
(Former name or former address, if changed since last report)
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Filed: June 23, 1995
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ITEM 5. OTHER EVENTS. Merry Land & Investment Company, Inc. (the
"Company") has completed the offering of its $120,000,000 Senior Notes (the
"Senior Notes"). The offering of the Senior Notes was made pursuant to a
Prospectus Supplement dated June 20, 1995 relating to the Prospectus dated
February 10, 1995 filed with the Company's shelf registration statement
#33-57453 on Form S-3.
The Senior Notes bear interest at 7 1/4% from June 23, 1995, with
interest payable each December 15 and June 15 beginning December 15, 1995.
The entire principal amount of the Senior Notes is due June 15, 2005. The
Senior Notes are redeemable at any time after June 15, 2002 at the option
of the Company, in whole or in part, at a redemption price equal to the
principal amount and accrued interest of the Senior Notes being redeemed,
plus, in certain circumstances, a "Make Whole Amount".
The Senior Notes were sold under an Indenture and Supplemental
Indenture with First Union National Bank of Georgia as Trustee. The
underwriting discount was 0.75% and the price to the public was 99.562% of
the principal amount of the Senior Notes.
The net proceeds to the Company from the sale of the Senior Notes were
$118,574.400. The Company intends to use the net proceeds to acquire and
develop additional apartment properties. The Company has entered into
agreements to acquire four apartment communities in Dallas, Texas, three of
which communities recently have been completed and one of which is
currently under construction, for an aggregate purchase price of
approximately $102.1 million. If and to the extent these acquisitions are
consummated, proceeds from the offering of the Senior Notes may be used for
such acquisitions.
Delivery of the Senior Notes was made on June 23, 1995 through the
facilities of the Depository Trust Company, against payment therefor in
immediately available funds.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS. The Company is filing with this current report copies of the
following documents in connection with this Offering.
A. EXHIBIT 1: Underwriting Agreement.
B. EXHIBIT 4A: Merry Land & Investment Company, Inc. 7 1/4% Note
due 2005.
C. EXHIBIT 4B: Indenture.
D. EXHIBIT 4C: First Supplemental Indenture.
E. EXHIBIT 5: Opinion as to the legality of the Note.
F. EXHIBIT 8: Tax Opinion.
G. EXHIBIT 12: Statement regarding computation of ratios
(incorporated herein by reference to Exhibit 12 of
the Company's 1994 10-K filed March 8, 1995)
H. EXHIBIT 23: Consent of Hull, Towill, Norman & Barrett, P.C.
(contained in Exhibits 5 and 8)
I. EXHIBIT 27: Financial Data Schedule (incorporated herein by
reference to Exhibit 27 of the Company's 1994 10-K
filed March 8, 1995)
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Signature Blocks on Following Page
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Merry Land & Investment Company, Inc.
(Registrant)
By: /s/ Dorrie E. Green
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Dorrie E. Green
As Its Vice President
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MERRY LAND & INVESTMENT COMPANY, INC.
Debt Securities
Underwriting Agreement
June 20, 1995
To the Representatives named
in Schedule I hereto of the
Underwriters named in
Schedule II hereto
Dear Sirs:
Merry Land & Investment Company, Inc., a Georgia corporation (the
"Company"), proposes to issue and sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), the principal amount of its debt
securities identified in Schedule I hereto (the "Securities"), to be issued
under the indenture specified in Schedule I hereto (the "Indenture")
between the Company and the Trustee identified in such Schedule (the
"Trustee"). If the firm or firms listed in Schedule II hereto include only
the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed
to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Securities Act"), a registration
statement (the file number of which is set forth in Schedule I hereto) on
Form S-3, relating to certain securities (the "Shelf Securities") to be
issued from time to time by the Company. The Company also has filed with,
or proposes to file with, the Commission pursuant to Rule 424 under the
Securities Act a prospectus supplement specifically relating to the
Securities. The registration statement as amended to the date of this
Agreement is hereinafter referred to as the "Registration Statement" and
the related prospectus covering the Shelf Securities in the form first used
to confirm sales of the Securities is hereinafter referred to as the "Basic
Prospectus". The Basic Prospectus as supplemented by the prospectus
supplement specifically relating to the Securities in the form first used
to confirm sales of the Securities is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to
Rule 424 or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary prospectus
or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus shall be
deemed to refer to and include any documents filed under the Exchange Act
after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the
several Underwriters as hereinafter provided, and each Underwriter, on the
basis of the representations and warranties herein contained, but subject
to the conditions hereinafter stated, agrees to purchase, severally and not
jointly, from the Company the respective principal amount of Securities set
forth opposite such Underwriter's name in Schedule II hereto at the
purchase price set forth in Schedule I hereto plus accrued interest, if
any, from the date specified in Schedule I hereto to the date of payment
and delivery.
2. The Company understands that the several Underwriters intend (i)
to make a public offering of their respective portions of the Securities
and (ii) initially to offer the Securities upon the terms set forth in the
Prospectus.
3. Payment for the Securities shall be made to the Company or to its
order in immediately available funds on the date and at the time and place
set forth in Schedule I hereto (or at such other time and place on the same
or such other date, not later than the third Business Day thereafter, as
you and the Company may agree in writing). Such payment will be made upon
delivery to, or to you for the respective accounts of, such Underwriters of
the Securities registered in such names and in such denominations as you
shall request not less than two full Business Days prior to the date of
delivery, with any transfer taxes payable in connection with transfer to
the Underwriters duly paid by the Company. As used herein, the term
"Business Day" means any day other than a day on which banks are permitted
or required to be closed in New York City. The time and date of such
payment and delivery with respect to the Securities are referred to herein
as the Closing Date. The certificates for the Securities will be made
available for inspection and packaging by you by 1:00 P.M. on the Business
Day prior to the Closing Date at such place in New York City as you and the
Company shall agree.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge
of the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission thereunder (collectively,
the "Trust Indenture Act"), and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the date of the Prospectus and any amend-
ment or supplement thereto, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, will not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representatives expressly for use
therein;
(b) the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents are filed with the
Commission will conform in all material respects to the requirements
of the Exchange Act, as applicable, and will not contain an untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(c) the financial statements and the related notes thereto,
included or incorporated by reference in the Registration Statement
and the Prospectus, present fairly the financial position of the
Company as of the dates indicated and the results of its operations
and the changes in its consolidated cash flows for the periods
specified; the financial statements with respect to the properties
acquired or to be acquired by the Company, together with related notes
and schedules as set forth or incorporated by reference in the
Registration Statement or the Prospectus, present fairly the financial
position and the results of operations of such properties at the
indicated dates and for the indicated periods; the foregoing financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the
supporting schedules included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the
information required to be stated therein; the summary financial and
statistical data included or incorporated by reference in the
Registration Statement or the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent
with the financial statements presented therein; and the pro forma
financial information, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the
Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as
applicable;
(d) since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general
affairs, business, prospects, management, properties, financial
position, stockholders' equity or results of operations of the
Company, otherwise than as set forth or contemplated in the
Prospectus; and except as set forth or contemplated in the Prospectus
the Company has not entered into any transaction or agreement (whether
or not in the ordinary course of business) material to the Company;
(e) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation, with power and authority (corporate and other)
to own or lease its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, other than where the failure to be so qualified or in
good standing would not have a material adverse effect on the Company
and its subsidiaries taken as a whole; except for investments in
securities as described in the Registration Statement or Prospectus,
the Company has no equity or other interest in, or rights to acquire,
an equity or other interest in any corporation, partnership, trust or
other entity;
(f) this Agreement and the Indenture have been duly authorized,
executed and delivered by the Company and constitute the valid and
legally binding obligations of the Company enforceable in accordance
with their terms, except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(g) the Securities have been duly authorized, and, when issued,
authenticated and delivered pursuant to this Agreement and the
Indenture will have been duly and validly executed, authenticated,
issued and delivered and will constitute valid and binding obligations
of the Company entitled to the benefits provided by the Indenture; the
Indenture has been duly authorized and has been duly qualified under
the Trust Indenture Act and, when executed and delivered by the
Company and the Trustee, the Indenture will constitute a valid and
binding instrument; and the Securities and the Indenture will conform
to the statements relating thereto contained in the Prospectus;
(h) the Company is not, and with the giving of notice or lapse
of time or both would not be, in violation of or in default under, its
Articles of Incorporation or By-Laws or any indenture, mortgage, deed
of trust, loan agreement or other agreement or other instrument or
obligation to which the Company is a party or by which it or any of
its properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company or
to the holders of the Securities; the issue and sale of the Securities
and the performance by the Company of all of the provisions of its
obligations under the Securities, the Indenture and this Agreement and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or
instrument to which the Company is a party or by which the Company is
bound or to which any of the property or assets of the Company is
subject, nor will any such action result in any violation of the
provisions of the Articles of Incorporation or the By-Laws of the
Company or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations, registra-
tions or qualifications as have been obtained under the Securities
Act, the Trust Indenture Act and as may be required under state
securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(i) other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company is or may be
a party or to which any property of the Company is or may be the
subject which, if determined adversely to the Company, could
individually or in the aggregate reasonably be expected to have a
material adverse effect on the general affairs, business, prospects,
management, properties, financial position, stockholders' equity or
results of operations of the Company and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and there are no
contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be described in
the Registration Statement or the Prospectus which are not filed or
described as required;
(j) the Company has good and marketable title to all of the
properties and assets reflected in the financial statements (or as
described in the Registration Statement) hereinabove described,
subject to no lien, mortgage, pledge, charge or encumbrance of any
kind except those reflected in such financial statements (or as
described in the Registration Statement) or which are not material in
amount. The Company occupies its leased properties under valid and
binding leases conforming to the description thereof set forth in the
Registration Statement;
(k) the Company has filed all Federal, State and foreign income
tax returns which have been required to be filed and have paid all
taxes indicated by said returns and all assessments received by it to
the extent that such taxes have become due and are not being contested
in good faith;
(l) the Company holds all material licenses, certificates and
permits from governmental authorities which are necessary to the
conduct of its business; and the Company has not infringed any
patents, patent rights, trade names, trademarks or copyrights, which
infringement is material to the business of the Company;
(m) Arthur Andersen LLP, who have certified certain of the
financial statements filed with the Commission as part of, or
incorporated by reference in, the Registration Statement, are
independent public accountants as required by the Securities Act;
(n) the Company has never been, is not now, and immediately
after the sale of the Securities under this Agreement will not be, an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(o) with respect to all tax periods regarding which the Internal
Revenue Service is or will be entitled to assert any claim, the
Company has met the requirements for qualification as a real estate
investment trust under Sections 856 through 860 of the Internal
Revenue Code, as amended, and the Company's present and contemplated
operations, assets and income continue to meet such requirements; and
(p) the conditions for the use of a registration statement on
Form S-3 set forth in the General Instructions on Form S-3 have been
satisfied and the Company is entitled to use such form for the
transactions contemplated herein.
5. The Company covenants and agrees with the several Underwriters as
follows:
(a) to file the Prospectus in a form approved by you pursuant to
Rule 424 under the Securities Act not later than the Commission's
close of business on the second Business Day following the date of
determination of the offering price of the Securities;
(b) to deliver to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to each of the Underwriters as many copies of the Prospectus
(including all amendments and supplements thereto) and documents
incorporated by reference therein as you may reasonably request, when
filed with Commission.
(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of the Securities, and during
such same period, to advise you promptly, and to confirm such advice
in writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the
receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its best efforts to prevent the issuance
of any such stop order or notification and, if issued, to obtain as
soon as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by
law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur as a result of which it is necessary to
amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with law, forthwith to
prepare and furnish, at the expense of the Company, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
such amendments or supplements to the Prospectus as may be necessary
so that the statements in the Prospectus as so amended or supplemented
will not, in the light of the circumstances when the Prospectus is
delivered to a purchaser, be misleading or so that the Prospectus will
comply with law;
(f) to endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request and to continue such qualification in effect
so long as reasonably required for distribution of the Securities and
to pay all fees and expenses (including fees and disbursements of
counsel to the Underwriters) reasonably incurred in connection with
such qualification and in connection with the determination of the
eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate; provided that the Company shall
not be required to file a general consent to service of process in any
jurisdiction;
(g) to make generally available to its security holders and to
you as soon as practicable but not later than 15 months after the
effective date of the Registration Statement (as defined in Rule
158(c)) an earnings statement covering a period of at least twelve
months beginning with the first fiscal quarter of the Company
occurring after the effective date of the Registration Statement,
which shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder;
(h) so long as the Securities are outstanding, to furnish to you
copies of all reports or other communications (financial or other)
furnished to holders of Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange;
(i) during the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, not to offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Company which are
substantially similar to the Securities without your prior written
consent; and
(j) to pay all costs and expenses incident to the performance of
its obligations hereunder, including without limiting the generality
of the foregoing, all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate (including fees of counsel for the Underwriters and
their disbursements), (iv) in connection with the listing of the
Securities on any stock exchange, (v) related to any filing with
National Association of Securities Dealers, Inc., (vi) in connection
with the printing (including word processing and duplication costs)
and delivery of this Agreement, the Indenture, the Preliminary and
Supplemental Blue Sky Memoranda and any Legal Investment Survey and
the furnishing to Underwriters and dealers of copies of the
Registration Statement and the Prospectus, including mailing and ship-
ping, as herein provided and (vii) payable to rating agencies in
connection with the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company contained
herein are true and correct on and as of the Closing Date as if made
on and as of the Closing Date and the Company shall have complied with
all agreements and all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been
complied with to your satisfaction;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended
or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company by any "nationally
recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been any material adverse
change or any development involving a material adverse change, in or
affecting the general affairs, business, prospects, management,
properties, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus, the
effect of which in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or
the delivery of the Securities on the terms and in the manner
contemplated in the Prospectus;
(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company
satisfactory to you to the effect set forth in subsections (a) through
(c) of this Section and to the further effect that there has not
occurred any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general af-
fairs, business, prospects, management, properties, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement.
(f) Hull, Towill, Norman & Barrett, P.C., counsel for the
Company, shall have furnished to you its written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
that:
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus as then amended or
supplemented;
(ii) the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse
effect on the Company;
(iii) other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending or, to the best of such counsel's knowledge, threatened
to which the Company is or may be a party or to which any
property of the Company is or may be the subject which, if
determined adversely to the Company, could individually or in the
aggregate reasonably be expected to have a material adverse
effect on the general affairs, business, prospects, management,
properties, financial position, stockholders' equity or results
of operations of the Company; to the best of such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as
required;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of
the Company, except as rights to indemnity and contribution
hereunder may be limited by applicable law;
(v) the Securities have been duly authorized, and when
executed and authenticated in accordance with the terms of the
Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company entitled to the
benefits provided by the Indenture, enforceable in accordance
with their terms, except that the enforceability thereof may be
limited by or subject to (a) bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other similar
laws now or hereafter existing which affect the rights and
remedies of creditors generally and (b) equitable principles of
general applicability;
(vi) the Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding
instrument of the Company enforceable in accordance with its
terms, except that the enforceability thereof may be limited by
or subject to (a) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws now or
hereafter existing which affect the rights and remedies of
creditors generally and (b) equitable principles of general
applicability; and the Indenture has been duly qualified under
the Trust Indenture Act;
(vii) the Company is not, and with the giving of notice or
lapse of time or both would not be, in violation of or in default
under, its Articles of Incorporation or By-Laws or any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party
or by which it or any of its respective properties is bound,
except for violations and defaults which individually and in the
aggregate are not material to the Company or to the holders of
the Securities; the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which
any of the property or assets of the Company is subject, nor will
any such action result in any violation of the provisions of the
Articles of Incorporation or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties;
(viii) the Company has authorized and outstanding stock
as set forth under the caption "Capitalization" in the
Prospectus;
(ix) no consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale of
the Securities or the consummation of the other transactions
contemplated by this Agreement or the Indenture, except such
consents, approvals, authorizations, registrations or
qualifications as have been obtained under the Securities Act and
the Trust Indenture Act and as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter;
(x) the statements in the Prospectus under the captions
"Management's Discussion and Analysis of Financial Condition -
Liquidity and Capital Resources," "Description of Notes,"
"Description of Debt Securities," "Description of Common Stock,"
"Description of Preferred Stock," "Description of Common Stock
Warrants," and "Description of Depositary Shares" in the
Prospectus and each document incorporated by reference from Item
3 of Part 1 of the Company's Annual Report on Form 10-K for the
year ended December 31, 1994 and in the Registration Statement in
Item 15, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such
legal matters, documents or proceedings;
(xi) such counsel (A) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (except for the financial statements included therein
as to which such counsel need express no opinion) complied as to
form in all material respects with the Exchange Act when filed
with Commission, (B) believes that (except for the financial
statements included therein as to which such counsel need express
no belief) each part of the Registration Statement (including the
documents incorporated by reference therein) filed with the
Commission pursuant to the Securities Act relating to the
Securities, when such part became effective, did not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading, (C) is of the opinion that the
Registration Statement and the Prospectus and any amendments and
supplements thereto (except for the financial statement included
therein as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and (D) believes that
(except for the financial statements included therein as to which
such counsel need express no belief) the Registration Statement
and the Prospectus, on the date of this Agreement, did not
contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and that the
Prospectus as amended or supplemented, if applicable, does not
contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and
(xii) the Company is not, and will not become as a
result of the consummation of the transactions contemplated by
this Agreement, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and has not been an
"investment company" at any time since 1988.
In rendering such opinions, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and the States of Georgia, to the extent such counsel
deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (in form and substance reasonably
satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to the Underwriters' counsel, familiar with the applicable
laws; (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of the Company and
certificates or other written statements of officials of jurisdictions
having custody of documents respecting the corporate existence or good
standing of the Company. The opinion of such counsel for the Company
shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in such counsel's opinion, the
Underwriters and they are justified in relying thereon. With respect
to the matters to be covered in subparagraph (xi) above counsel may
state its opinion and belief is based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendment or supplement thereto (other than the documents incorporated
by reference therein) and review and discussion of the contents
thereof (including the documents incorporated by reference therein)
but is without independent check or verification except as specified.
(g) Hull, Towill, Norman & Barrett, P.C., tax counsel for the
Company, shall have delivered to you its written opinion, dated the
Closing Date, in form and substance satisfactory to you, to the effect
that:
(i) the Company met the requirements for qualification and
taxation as a real estate investment trust ("REIT") for the taxable
years 1987, 1988, 1989, 1990, 1991, 1992, 1993 and 1994 subject to the
qualification noted in subparagraph (ii) below;
(ii) there is an issue as to whether the Company satisfied the
95%-distribution requirement of Section 857(a)(1) of the Code with
respect to the taxable year 1989. Such counsel believes, however, that
if the Internal Revenue Service were to assert successfully that the
Company did not meet the 95%-distribution requirement on the basis of
the foregoing issue, the Company nevertheless would be entitled to use
the deficiency dividend procedures of Section 860 of the Code to
preserve its status as a qualified REIT for 1989 and subsequent
taxable years by paying deficiency dividends to its shareholders
sufficient to meet the 95%-distribution requirement and by otherwise
complying with the requirements of Section 860 of the Code;
(iii) the Company's diversity of stock ownership and proposed
method of operation should allow it to qualify as a REIT for 1995; and
(iv) the discussion contained under the caption "Certain Federal
Income Tax Considerations to the Company of its REIT Election" in the
Prospectus forming a part of the Registration Statement, accurately
reflects existing law and fairly addresses the material federal income
tax issues described therein.
In rendering such opinions, Hull, Towill, Norman & Barrett,
P.C. may rely as to matters of fact, to the extent they deem
proper, on certificates of officers of the Company and public
officials so long as such counsel states that no facts have come
to the attention of such counsel which lead them to believe that
they are not justified in relying on such certificates. In
addition, Hull, Towill, Norman & Barrett, P.C. may state that
their opinions are based upon the procedures and assumptions set
forth in such opinion letter and that it is limited to the tax
matters specifically covered thereby and that they have not
addressed any other tax consequences.
(h) on the Closing Date, Arthur Andersen LLP shall have
furnished to you letters, dated such date, in form and substance
satisfactory to you, containing statements and information of the type
customarily included in accountants "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the
Prospectus;
(i) on the Closing Date, Arthur Andersen LLP shall have
furnished to you a letter confirming the matters set forth in clauses
(i), (ii) and (iii) of subparagraph (g) of this Section 6;
(j) you shall have received on and as of the Closing Date an
opinion of Piper & Marbury L.L.P., counsel to the Underwriters, with
respect to the validity of the Indenture and the Securities, the
Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters; and
(k) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents confirming the representations and warranties contained
herein and related matters as the Representatives shall reasonably
request.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in
all material respects satisfactory to the Representatives and to Piper &
Marbury L.L.P., counsel for the Underwriters.
7. The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including without limitation the legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
provided, that the foregoing indemnity with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter (or to the
benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Securi-
ties if such untrue statement or omission or alleged untrue statement or
omission made in such preliminary prospectus is eliminated or remedied in
the Prospectus (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) and, if required by law, a
copy of the Prospectus (as so amended or supplemented) shall not have been
furnished to such person at or prior to the written confirmation of the
sale of such Securities to such person.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through
the Representatives expressly for use in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "Indemnified
Person") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Person") in writing, and the Indemnifying
Person, upon request of the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed
to the contrary, (ii) the Indemnifying Person has failed within a
reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying Person and
the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the
same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be reimbursed as they
are incurred. Any such separate firm for the Underwriters and such control
persons of Underwriters shall be designated in writing by the first of the
named Representatives on Schedule I hereto and any such separate firm for
the Company, its directors, its officers who sign the Registration
Statement and such control persons of the Company or authorized repre-
sentatives shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there
be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse the Indemnified Person for fees and
expenses of counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect
any settlement of any pending or threatened proceeding in respect of which
any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such
settlement includes an unconditional release of such Indemnified Person
from all liability on claims that are the subject matter of such
proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such
Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the
Underwriters bear to the aggregate public offering price of the Securities.
The relative fault of the Company on the one hand and the Underwriters on
the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by
such Indemnified Person in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 7, in
no event shall an Underwriter be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their
names in Schedule I hereto, and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth
in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Company, its officers or directors or
any other person controlling the Company and (iii) acceptance of and
payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice
given to the Company, if after the execution and delivery of this Agreement
and prior to the Closing Date (i) there shall have occurred, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting
the condition, financial or otherwise, of the Company or the earnings,
business affairs, properties, management or business prospects of the
Company, whether or not arising in the ordinary course of business, (ii)
trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (iii) trading of any securities of or guaranteed by the
Company shall have been suspended on any exchange or in any over-the-
counter market, (iv) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities; (v) there has occurred any downgrading in the rating of the
Company's debt securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Exchange
Act; or (vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Representatives, is material and adverse and
which, in the judgment of the Representatives, makes it impracticable to
market the Designated Securities on the terms and in the manner
contemplated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Securities which it or they have agreed to
purchase under this Agreement, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Securities, the other Underwriters shall be obli-
gated severally in the proportions that the principal amount of Securities
set forth opposite their respective names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the principal amount
of Securities that any Underwriter has agreed to purchase pursuant to
Section 1 be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate
principal amount of Securities with respect to which such default occurs is
more than one-tenth of the aggregate principal amount of Securities to be
purchased, and arrangements satisfactory to you and the Company for the
purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either you
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement or any condition of the Underwriters'
obligations cannot be fulfilled, the Company agrees to reimburse the Under-
writers or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including
the fees and expenses of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering of
Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, the Underwriters, any controlling persons referred to herein
and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein con-
tained. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule
I hereto alone on behalf of the Underwriters, and any such action taken by
you jointly or by the first of the named Representatives set forth in
Schedule I hereto alone shall be binding upon the Underwriters. All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be given at
the address set forth in Schedule II hereto. Notices to the Company shall
be given to it at Merry Land & Investment Company, 624 Ellis Street,
Augusta, Georgia, Attention: Peter S. Knox III.
<PAGE>
13. Miscellaneous. This Agreement may be signed in counterparts,
each of which shall be an original and all of which together shall
constitute one and the same instrument. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York,
without giving effect to the conflicts of laws provisions thereof.
Very truly yours,
MERRY LAND & INVESTMENT COMPANY, INC.
By:
-------------------------------------
Name: Peter S. Knox III
-------------------------------------
Title: Chairman of the Board
-------------------------------------
Accepted: June 20, 1995
J.P. MORGAN SECURITIES INC.
Acting severally on behalf of
themselves and the several
Underwriters listed in Schedule II
hereto.
By:
- -------------------------------------
Name:
- -------------------------------------
Title:
- -------------------------------------
<PAGE>
SCHEDULE I
Representatives: J.P. Morgan Securities Inc.
Underwriting Agreement dated: June 20, 1995
Registration Statement No.: 33-57453
Title of Securities: 7 1/4 % Notes due 2005
Aggregate principal amount: $120,000,000
Price to Public: 99.562% of the
principal amount of the Securities, plus
accrued interest, if any, from June 23,
1995 to the Closing Date.
Underwriting Discount: .75%
Indenture: Indenture dated as of February 1, 1995,
and the Supplemental Indenture dated
June 1, 1995, both between Merry Land &
Investment Company, Inc. and First Union
National Bank of North Carolina
Maturity: June 15, 2005
Interest Rate: 7 1/4%
Interest Payment Dates: June 15 and December 15
Optional Redemption Provisions: Redeemable at anytime after June 15,
2002 at the option of the Company, in
whole or in part, at a redemption price
equal to the sum of (i) the principal
amount of the Notes being redeemed plus
accrued interest to the redemption date,
plus (ii) the Make Whole Amount, if any
Sinking Fund Provisions: None
Other Provisions: As specified in the Prospectus
Supplement dated June 20, 1995 relating
to the Securities.
Closing Date and Time of Delivery: June 23, 1995
Closing Location: Piper & Marbury L.L.P.,
36 South Charles Street
Baltimore, Maryland
Address for Notices
to Underwriters: c/o J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
<PAGE>
SCHEDULE II
Underwriter Principal Amount of Securities
To Be Purchased
J.P. Morgan Securities Inc. $30,000,000
Alex. Brown & Sons Incorporated $30,000,000
Goldman, Sachs & Co. $30,000,000
PaineWebber Incorporated $15,000,000
Interstate/Lane Johnson Corporation $15,000,000
===========
Total. . . . . . . . . . . . . . . . . . . .$120,000,000
<PAGE>
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN
THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
MERRY LAND & INVESTMENT COMPANY, INC.
7 1/4% NOTE DUE 2005
REGISTERED PRINCIPAL AMOUNT
No.: 1 $120,000,000
CUSIP No.: 590438-AC1
MERRY LAND & INVESTMENT COMPANY, INC., a corporation organized and
existing under the laws of the State of Georgia (hereinafter called the
"Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to
pay to CEDE & Co., or registered assigns, upon presentation, the principal
sum of One Hundred Twenty Million Dollars ($120,000,000) on June 15, 2005
at the office or agency of the Company referred to below, and to pay
interest thereon from June 23, 1995, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on June 15 and December 15 in each year,
commencing December 15, 1995, at the rate of 7 1/4% per annum, until the
entire principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for on any
Interest Payment Date will, as provided for in the Indenture, be paid to
the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest which shall be the June 1 or December 1 (whether or
not a Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such Regular
Record Date, and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities of this series not more than 15 days and not less
than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this Series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
Payment of the principal of, Make-Whole Amount, if any, on, and
interest on this Security will be made at the office or agency of the
Company maintained for that purpose in the City of New York, Borough of
Manhattan, or elsewhere as provided in the Indenture, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided; however, that at
the option of the Company payment of interest may be made by (i) check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer of funds to an
account of the Person entitled thereto maintained within the United States.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of February 1, 1995, as
supplemented by the First Supplemental Indenture, dated as of June 1, 1995
(as so supplemented, herein called the "Indenture"), between the Company
and First Union National Bank of Georgia, as Trustee (herein called the
"Trustee," which term includes any successor trustee under the Indenture
with respect to the series of which this Security is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated
on the first page hereof, limited in aggregate principal amount to
$120,000,000.
Securities of this series may be redeemed at any time after June 15,
2002 at the option of the Company, in whole or in part, upon notice of not
more than 60 nor less than 30 days prior to the Redemption Date, at a
redemption price equal to the sum of (i) the principal amount of the
Securities being redeemed plus accrued interest thereon to the Redemption
Date and (ii) the Make-Whole Amount, if any, with respect to such
Securities.
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Security, the excess, if any, of (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount
of interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of such dollar
if such redemption or accelerated payment had not been made, determined by
discounting, on a semi-annual basis, such principal and interest at the
Reinvestment Rate (determined on the third Business Day preceding the date
such notice of redemption is given or declaration of acceleration is made)
from the respective dates on which such principal and interest would have
been payable if such redemption or accelerated payment had not been made,
over (ii) the aggregate principal amount of the Securities being redeemed
or paid.
"Reinvestment Rate" means .25% (twenty-five one hundredths of one
percent) plus the arithmetic mean of the yields under the respective
headings "This Week" and "Last Week" published in the Statistical Release
under the caption "Treasury Constant Maturities" for the maturity (rounded
to the nearest month) corresponding to the remaining life to maturity, as
of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate
shall be interpolated or extrapolated from such yields on a straight-line
basis, rounding in each of such relevant periods to the nearest month. For
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole
Amount shall be used.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded
United States government securities adjusted to constant maturities or, if
such statistical release is not published at the time of any determination
under the Indenture, then such other reasonably comparable index which
shall be designated by the Company.
The Indenture contains provisions for defeasance at any time of (a)
the entire indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related defaults and Events of Default
applicable to the Company, in each case, upon compliance by the Company
with certain conditions set forth in the Indenture, which provisions apply
to this Security.
If any Event of Default with respect to Securities of this series
shall occur and be continuing, the principal of, and the Make-Whole Amount,
if any, on, the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing
Event of Default with respect to the Securities of this series, the Holders
of not less than 25% in principal amount of the Securities of this series
at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee,
offered the Trustee reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal amount of Securities
of this series at the time Outstanding a direction inconsistent with such
request, and the Trustee shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal
hereof (and premium or Make-Whole Amount, if any) or any interest on and
any Additional Amounts in respect thereof on or after the respective due
dates expressed herein.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of
the Company and the rights of the Holders of the Securities of each series
to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of not less than a majority in
principal amount of the Securities of each series at the time Outstanding
affected thereby. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of, Make-Whole
Amount, if any, on, and interest on this Security at the times, place and
rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any Place of Payment
where the principal of, Make-Whole Amount, if any, on, and interest on this
Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this
series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture or in this Security, or because of any
indebtedness evidenced thereby, shall be had against any promoter, as such
or, against any past, present or future stockholder, 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 this Security by the Holder
thereof and as part of the consideration for the issue of the Securities of
this series.
All terms used in this security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THE SECURITIES, INCLUDING THIS SECURITY, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
GEORGIA.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused "CUSIP" numbers
to be printed on the Securities of this series as convenience to the
Holders of such Securities. No representation is made as to the
correctness or accuracy of such CUSIP numbers as printed on the Securities,
and reliance may be placed only on the other identification numbers printed
hereon.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee by manual signature, this Security shall not be
entitled to any benefit under the Indenture or be valid or obligatory for
any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
MERRY LAND & INVESTMENT COMPANY, INC.
By:
-------------------------------------
Name: Peter S. Knox
-------------------------------------
Title: Chairman of the Board
-------------------------------------
Attest:
By:
- -------------------------------------
Name: W. Hale Barrett
- -------------------------------------
Title: Assistant Secretary
- -------------------------------------
[SEAL]
Dated: June 23, 1995
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST UNION NATIONAL BANK OF GEORGIA,
as Trustee
By:
- -------------------------------------
Authorized Officer
<PAGE>
[Rider 1a]
J.P. Morgan Securities Inc., Alex. Brown & Sons Incorporated, Goldman,
Sachs & Co., PaineWebber Incorporated and Interstate/Johnson Lane
Corporation are
MERRY LAND & INVESTMENT COMPANY, INC.
TO
FIRST UNION NATIONAL BANK OF GEORGIA
Trustee
Indenture
Dated as of February 1, 1995
Senior Debt Securities
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . .9
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Additional Amounts. . . . . . . . . . . . . . . . . . . . 10
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 10
Authenticating Agent. . . . . . . . . . . . . . . . . . . 10
Authorized Newspaper. . . . . . . . . . . . . . . . . . . 10
Bankruptcy Law. . . . . . . . . . . . . . . . . . . . . . 10
Bearer Security . . . . . . . . . . . . . . . . . . . . . 10
Board of Directors. . . . . . . . . . . . . . . . . . . . 10
Board Resolution. . . . . . . . . . . . . . . . . . . . . 11
Business Day. . . . . . . . . . . . . . . . . . . . . . . 11
Capital Stock . . . . . . . . . . . . . . . . . . . . . . 11
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Commission. . . . . . . . . . . . . . . . . . . . . . . . 11
Common Depository . . . . . . . . . . . . . . . . . . . . 11
Company . . . . . . . . . . . . . . . . . . . . . . . . . 11
Company Request and Company Order . . . . . . . . . . . . 11
Conversion Event. . . . . . . . . . . . . . . . . . . . . 12
Corporate Trust Office. . . . . . . . . . . . . . . . . . 12
corporation . . . . . . . . . . . . . . . . . . . . . . . 12
coupon. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Custodian . . . . . . . . . . . . . . . . . . . . . . . . 12
Defaulted Interest. . . . . . . . . . . . . . . . . . . . 12
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . 12
DTC . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . 12
European Communities. . . . . . . . . . . . . . . . . . . 12
European Monetary System. . . . . . . . . . . . . . . . . 12
Event of Default. . . . . . . . . . . . . . . . . . . . . 12
Exchange Act. . . . . . . . . . . . . . . . . . . . . . . 13
Foreign Currency. . . . . . . . . . . . . . . . . . . . . 13
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Government Obligations. . . . . . . . . . . . . . . . . . 13
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . 13
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 13
Indexed Security. . . . . . . . . . . . . . . . . . . . . 14
interest. . . . . . . . . . . . . . . . . . . . . . . . . 14
Interest Payment Date . . . . . . . . . . . . . . . . . . 14
Make-Whole Amount . . . . . . . . . . . . . . . . . . . . 14
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . 14
Officers' Certificate . . . . . . . . . . . . . . . . . . 14
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . 14
Original Issue Discount Security. . . . . . . . . . . . . 15
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 15
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . 16
Person. . . . . . . . . . . . . . . . . . . . . . . . . . 16
Place of Payment. . . . . . . . . . . . . . . . . . . . . 16
Predecessor Security. . . . . . . . . . . . . . . . . . . 16
Redemption Date . . . . . . . . . . . . . . . . . . . . . 17
Redemption Price. . . . . . . . . . . . . . . . . . . . . 17
Registered Security . . . . . . . . . . . . . . . . . . . 17
Regular Record Date . . . . . . . . . . . . . . . . . . . 17
Repayment Date. . . . . . . . . . . . . . . . . . . . . . 17
Repayment Price . . . . . . . . . . . . . . . . . . . . . 17
Responsible Officer . . . . . . . . . . . . . . . . . . . 17
Securities Act. . . . . . . . . . . . . . . . . . . . . . 17
Security. . . . . . . . . . . . . . . . . . . . . . . . . 17
Security Register and Security Registrar. . . . . . . . . 17
Significant Subsidiary. . . . . . . . . . . . . . . . . . 17
Special Record Date . . . . . . . . . . . . . . . . . . . 18
Stated Maturity . . . . . . . . . . . . . . . . . . . . . 18
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . 18
Trust Indenture Act or TIA. . . . . . . . . . . . . . . . 18
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States . . . . . . . . . . . . . . . . . . . . . . 18
United States person. . . . . . . . . . . . . . . . . . . 18
Yield to Maturity . . . . . . . . . . . . . . . . . . . . 18
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . 19
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . 19
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . 20
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . 22
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . 22
SECTION 107. Effect of Headings and Table of Contents. . . . . . . . . 23
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . . . 23
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . 24
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . 24
SECTION 111. No Personal Liability . . . . . . . . . . . . . . . . . . 24
SECTION 112. Governing Law . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . 25
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . 25
SECTION 203. Securities Issuable in Global Form. . . . . . . . . . . . 25
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . 27
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 303. Execution, Authentication Delivery and Dating . . . . . . 31
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . 33
SECTION 305. Registration, Registration of Transfer and Exchange
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . 40
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . 41
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . 44
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . 45
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . 45
SECTION 402. Application of Trust Funds. . . . . . . . . . . . . . . . 47
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . 47
SECTION 502. Acceleration of Maturity; Rescission and Annulment
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . . . . . . . . . . 50
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . 51
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . 52
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . 53
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium or Make-
Whole Amount, if any, Interest and
Additional Amounts. . . . . . . . . . . . . . . . . . . . 54
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . 54
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . 54
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . 54
SECTION 512. Control by Holders of Securities. . . . . . . . . . . . . 55
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . 55
SECTION 514. Waiver of Usury, Stay or Extension Laws . . . . . . . . . 55
SECTION 515. Undertaking for Costs . . . . . . . . . . . . . . . . . . 56
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . . . . . 56
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . . 57
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . . 58
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . . 59
SECTION 606. Compensation and Reimbursement. . . . . . . . . . . . . . 59
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests . . . . . . . . . . . . . . . . . . 59
SECTION 608. Resignation and Removal; Appointment of Successor . . . . 60
SECTION 609. Acceptance of Appointment By Successor. . . . . . . . . . 61
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . . 63
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND TRUST
SECTION 701. Disclosure of Names and Addresses of Holders. . . . . . . 65
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . . . . . 65
SECTION 703. Reports by Company. . . . . . . . . . . . . . . . . . . . 65
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders . . . . . . . . . . . . . . . . . . . . . . . . . 66
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. . . . . . . . . . . . . . . . . . . . 67
SECTION 802. Rights and Duties of Successor Corporation. . . . . . . . 67
SECTION 803. Officers' Certificate and Opinion of Counsel. . . . . . . 68
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 902. Supplemental Indentures With Consent of Holders . . . . . 70
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . 71
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . 71
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . 71
SECTION 906. Reference in Securities to Supplemental Indentures
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 907. Notice of Supplemental Indentures . . . . . . . . . . . . 72
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium or
Make Whole Amount, if any, Interest
and Additional Amounts. . . . . . . . . . . . . . . . . . 72
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . 73
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . 74
SECTION 1004. {OMITTED} . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . . . . 76
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . . . . 77
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . . . . . . 77
SECTION 1009. Provision of Financial Information. . . . . . . . . . . . 77
SECTION 1010. Statement as to Compliance. . . . . . . . . . . . . . . . 77
SECTION 1011. Additional Amounts. . . . . . . . . . . . . . . . . . . . 78
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . . . . 79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . 79
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . 79
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . 80
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . 80
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . 82
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . 82
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . 83
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . 83
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . 84
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . . . . 85
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . 85
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . . . . . . 85
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable. . . . . . . . . . . 85, 86
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . 87
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance . . . . . . . . . . . . . . . . . . . 88
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . . . . . . 88
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . 89
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . 89
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions. . . . . . . . . . . . . . 91
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . . . 93
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . . . . . . 93
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . . . . . . 93
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . 94
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . 96
SECTION 1507. Evidence of Action Taken by Holders . . . . . . . . . . . 96
SECTION 1508. Proof of Execution of Instruments . . . . . . . . . . . . 97
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
MERRY LAND & INVESTMENT COMPANY, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as
amended (the "1939 Act"), and Indenture, dated as of February 1,
1995
Trust Indenture Act Section Indenture Section
(Section)310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 607(a)
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 607(a)
(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . .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)(i) . . . . . . . . . . . . . . . . . . . . . . . . . . .503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .504
(Section)318(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .112
__________________
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the
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.
<PAGE>
INDENTURE
INDENTURE, dated as of February 1, 1995, between MERRY LAND &
INVESTMENT COMPANY, INC., a Georgia corporation (hereinafter called
the "Company"), having its principal office at 624 Ellis Street,
August, Georgia 30903, and FIRST UNION NATIONAL BANK OF GEORGIA, a
national banking association, as Trustee hereunder (hereinafter
called the "Trustee"), having its Corporate Trust Office at 999
Peachtree Street, NE, Suite 1100, Atlanta, GA 30309.
RECITALS OF THE TRUST
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:
"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 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.
"Capital Stock" means, with respect to any Person, any capital
stock (including preferred stock), shares, interests,
participations or other ownership interests (however designated) of
such Person and any rights (other than debt securities convertible
into or exchangeable for corporate stock), warrants or options to
purchase any thereof.
"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.
"Consolidated Income Available for Debt Service" for any
period means Funds from Operations of the Company and its
Subsidiaries plus amounts which have been deducted for interest on
Debt of the Company and its Subsidiaries.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency (other than the ECU or other currency unit) both by the
government of the country which issued such currency and for the
settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the
settlement of transactions by public institutions of or within the
European Communities or (iii) any currency unit (or composite
currency) other than the ECU for the purposes for which it was
established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall
be principally administered, which office at the date hereof is
located at Suite 1100, 999 Peachtree Street N.E., Atlanta, GA
30309.
"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.
"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 Communities" 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.
"Event of Default" has the meaning specified in Article Five.
"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, including, without limitation, the ECU, issued
by the government of one or more countries other than the United
States of America or by any recognized confederation or association
of such governments.
"GAAP" means generally accepted accounting principles as used
in the United States applied on a consistent basis 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.
"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 Trust) 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 into Capital Stock of the Company
pursuant to or in accordance with this Indenture if the
terms of such Securities provide for convertibility
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 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 by or pursuant to
this Indenture.
"Responsible Officer" means, when used with respect to the
Trustee, any officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"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 (a) the voting
power of the voting equity securities or (b) 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 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 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
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 Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed,
as depository, by any trust 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
Company in reliance thereon, whether or not notation of such action
is made upon such Security.
SECTION 105. Notices, etc., to 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.
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
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 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, but
may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity, provided that
no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
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
executing such Securities or coupons, as evidenced by their
execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of
Authentication.
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Union National Bank of Georgia,
as Trustee
By:___________________________________
Authorized Signatory
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then,
notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein
and may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities of
such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be
made by the Trustee in such manner and upon instructions given by
such Person or Persons as shall be specified therein or in the
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
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 and need not be accompanied by an
Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such
Security was never issued and sold by the 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
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 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
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 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
conversion of the Securities of such series into shares of Capital
Stock of the Company and the terms and conditions upon which such
conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any
adjustment of the applicable conversion price or rate and any
requirements relative to the reservation of such shares for
purposes of conversion);
(24) if convertible, any applicable limitations on the
ownership or transferability of the Capital Stock into which such
Securities are convertible; 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(4) and (5)).
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
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 such Securities, and-accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject
to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon:
(i) an Opinion of Counsel 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
(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.
The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties, obligations
or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to
be issued at one time, it shall not be necessary to deliver 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.
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 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 shall, unless otherwise
provided therein, be delivered to the London 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 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 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
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 in 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 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, in proper cases, 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.
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 Cede & Co.
or the Common Depository, 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 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 his address as it
appears in the Security Register not less than 10 days prior to
such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Company, cause a similar notice
to be published at least once in an Authorized Newspaper in each
place of payment, but such publications shall not be a condition
precedent to the establishment of such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security of any series
is 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
to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the 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
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 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
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 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 Fund.
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
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 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 any bond, debenture, note, mortgage,
indenture or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness 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 an
aggregate principal amount outstanding of at least $10,000,000,
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 10 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 10% 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 entry by a court of competent jurisdiction of one or
more judgments, orders or decrees against the Company or any of its
Subsidiaries in an aggregate amount (excluding amounts covered by
insurance) in excess of $10,000,000 and such judgments, orders or
decrees remain undischarged, unstayed and unsatisfied in an
aggregate amount (excluding amounts covered by insurance) in excess
of $10,000,000 for a period of 30 consecutive days; or
(7) 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
(8) 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
(9) 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 principal amount of the Outstanding Securities of that series
may declare the principal (or, if any Securities are Original Issue
Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of, 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 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.
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
reasonable indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of,
or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to
obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium 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) 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 had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders
of Securities or coupons is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right
or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount of
the Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might 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 waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium 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 Usury, 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
usury, stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the
performance of this Indenture; and the 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 any
undertaking to pay the costs of such suit, and that such court may
in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit having due
regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium 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).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall
transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee,
unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of
the principal of (or premium 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;
(2) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(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 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 reasonable security
or indemnity 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 or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(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 adequate indemnity 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 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) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by 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 negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability
or expense, 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 it's powers or duties hereunder
except to the extent any such loss, liability or expense may be
attributable to its own 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.
The provisions of this Section shall survive the termination
of this Indenture.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests.
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall
have a combined capital and surplus of at least $50,000,000 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 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 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 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.
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
redemption or repayment thereof, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to
the 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 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
reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of
authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Union National Bank of Georgia,
as Trustee
By:____________________________________
as Authenticating Agent
By:____________________________________
Authorized Officer
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 shall be held
accountable by reason of the disclosure of any information as to
the names and addresses of the Holders of Securities in accordance
with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request
made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after December 31 of each year commencing with
the first December 31 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 December 31 if 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
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) and (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.<PAGE>
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, 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 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 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 Capital Stock; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture which
shall not be inconsistent with the provisions of this Indenture 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
(10) 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
(11) 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(1) 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.
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 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.
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 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 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 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 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 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:
(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 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
premiums 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 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
for value 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 of its insurable Properties insured against loss or damage
at least equal to their then full insurable value with financially
sound and reputable insurance companies.
SECTION 1008. Payment of Taxes and Other Claims.
The Company 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 (i) transmit by mail to all Holders, as their
names and addresses appear in the Security Register, without cost
to such Holders, copies of the annual reports and quarterly reports
which the Company would have been required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act if
the Company were subject to such Sections, and (ii) file with the
Trustee copies of 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
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 abovementioned 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
for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or
omitted by any of them 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 1004 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.
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 of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities of any series issued on the
same day with the same terms are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series issued on such date with the same terms
not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of
such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
The Trustee shall promptly notify the 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
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;
(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; and
(11) if applicable, that a Holder of Securities who desires to
convert Securities to be redeemed must satisfy the requirements for
conversion contained in such Securities, the then existing
conversion price or rate and the date and time when the option to
convert shall expire.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company request, by the Trustee in
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, if
any, to the Redemption Date), and from and after such date (unless
the Company shall default in the payment of the Redemption Price
and accrued interest) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender
of any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, however, that installments
of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender
of coupons for such interest; and provided further that except as
otherwise provided with respect to Securities convertible into
Capital Stock, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the
Redemption Date, such Security may be paid after deducting from the
Redemption Price an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons
may be waived by the 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.
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 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 optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and
credited. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking
fund payment, the 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. 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.
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) 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
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.<PAGE>
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 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(9) 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 (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust
funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2)
Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment
of principal of (and premium or Make-Whole Amount, if any) and
interest, 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 (or other
qualifying 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(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 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 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 Borough of
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 Borough of Manhattan, The City of New York, or in London for
such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities
of any series, a Person shall be (1) a Holder of one or more
Outstanding Securities of such series, or (2) a Person appointed by
an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel,
any representatives of the Trustee and its counsel and any
representatives of the 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
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 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.
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.
MERRY LAND & INVESTMENT
COMPANY, INC.
By:
Name:
Title:
FIRST UNION NATIONAL BANK OF
GEORGIA, as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be
delivered}
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our
account (i) are owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject
to United States federal income taxation regardless of its source
("United States person(s)"), (ii) are owned by United States
person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in United States
Treasury Regulations Section 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 related to {U.S.$} of such interest in the above-
captioned Securities in respect of which we are not able to certify
and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest)
cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in
connection with which this certificate is or would be relevant, we
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated: _______________, 19___ {To be dated no earlier than the
15th day prior to 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>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
{Insert title or sufficient description of Securities to be
delivered}
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or
by electronic transmission from each of the persons appearing in
our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, (U.S.$)
principal amount of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States Federal income
taxation regardless of its source-("United States person(s)"), (ii)
is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institutions, as
defined in 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
irrevocably authorize you to produce this certificate or a copy
thereof to any interested party in such proceedings.
Dated:_________________________ , 19___
{To be dated no earlier than the earlier of the
Exchange Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as applicable}
,
as
By:
<PAGE>
[Letterhead of Hull, Towill, Norman & Barrett, P.C.]
June 23, 1995
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
RE: Public Offering of 7 1/4% Notes due 2005 of
Merry Land & Investment Company, Inc. (the "Offering")
Ladies and Gentlemen:
We have acted as counsel to Merry Land & Investment Company, Inc. (the
"Company") in connection with the referenced Offering with respect to the
proposed sale of up to $120,000,000 aggregate principal amount of the
Company's 7 1/4% Notes due 2005 (the "Senior Notes").
We are familiar with the articles of incorporation, as amended, and
by-laws of the Company, the Prospectus Supplement dated June 20, 1995 filed
with Registration Statement #33-57453 (the "Prospectus Supplement"), and
have examined such additional records and public documents as we have
deemed necessary for the opinion hereinafter expressed.
Based upon the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized, existing and in good
standing under the laws of the State of Georgia.
2. All proceedings necessary to authorize the offering of the Senior
Notes have been taken.
3. The Senior Notes have been duly authorized, and when executed and
authenticated in accordance with the terms of the Indenture and delivered
to and paid for by the Underwriters in accordance with the terms of this
Agreement, will constitute valid and binding obligations of the Company
entitled to the benefits provided by the Indenture, enforceable in
accordance with their terms, except that the enforceability thereof may be
limited by or subject to (a) bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other similar laws now or hereafter
existing which affect the rights and remedies of creditors generally and
(b) equitable principles of general applicability;
We hereby consent to the filing of this opinion as an exhibit to the
Form 8-K filed with respect to the Offering and reference to this opinion
in the Prospectus Supplement.
HULL, TOWILL, NORMAN
& BARRETT, P.C.
<PAGE>
[Letterhead of Hull, Towill, Norman & Barrett, P.C.]
June 23, 1995
MERRY LAND & INVESTMENT COMPANY, INC.
624 Ellis Street
Augusta, GA 30901
RE: Public Offering of 7 1/4% Notes due 2005 of
Merry Land and Investment Company, Inc. (the "Offering")
Ladies and Gentlemen:
We have acted as counsel to Merry Land & Investment Company, Inc. (the
"Company") in connection with the referenced Offering with respect to the
proposed sale of up to $120,000,000 aggregate principal amount of the
Company's 7 1/4% Notes due 2005 (the "Debt Securities").
We are familiar with the articles of incorporation, as amended, and
by-laws of the Company and have examined such additional records and public
documents as we have deemed necessary for the opinion hereinafter
expressed. We have been counsel to the Company for many years and are
generally familiar with its affairs. Where facts have not been
independently verified, we have relied upon statements of the Company's
officers, certificates of public officials, and records of the Company.
In rendering the opinions expressed herein, we have examined such
documents as we have deemed appropriate, including without limitation the
Company's Registration Statement on Form S-3 (File #33-57453) and the
amendments thereto, the Preliminary Prospectus Supplement dated June 13,
1995, the Prospectus Supplement dated June 20, 1995, the Company's federal
income tax returns for the taxable periods to which our opinion relates,
and Company-prepared schedules which relate to the Company's compliance
with various real estate investment trust ("REIT") qualification tests. In
our examination of documents, we have assumed, with your consent, that all
documents submitted to us are authentic originals, or if submitted as
photocopies, that they faithfully reproduce the originals thereof, that all
such documents have been or will be duly executed to the extent required,
that all representations and statements set forth in such documents are
true and correct, and that all obligations imposed by any such documents on
the parties thereto have been or will be performed or satisfied in
accordance with their terms. We have also obtained such additional
information and representations as we have deemed relevant and necessary
through consultation with the officers of the Company and with the
Company's independent public accountants.
In rendering our opinion, we have assumed that during the relevant
taxable periods all persons who were required under the Securities and
Exchange Act of 1934 to file or amend Schedules 13D and 13G with respect to
the Company's outstanding shares appropriately made such filings and that
the Company was duly apprised of all such filings.
Based upon the foregoing, we are of the opinion that:
1. The Company met the requirements for qualification and taxation
as a REIT for the taxable years 1987, 1988, 1989, 1990, 1991, 1992, 1993
and 1994, subject to the qualification noted in paragraph 2 below.
2. There is an issue as to whether the Company satisfied the "95%-
distribution" requirement of Section 857(a)(1) of the Code with respect to
the taxable year 1989. We believe, however, that if the Internal Revenue
Service were to assert successfully that the Company did not meet the 95%-
distribution requirement on the basis of the foregoing issue, the Company
nevertheless would be entitled to use the deficiency dividend procedures of
Section 860 of the Code to preserve its status as a qualified REIT for 1989
and subsequent taxable years by paying deficiency dividends to its
shareholders sufficient to meet the 95%-distribution requirement and by
otherwise complying with the requirements of Section 860 of the Code.
3. The Company's diversity of stock ownership and proposed method of
operation should allow it to qualify as a REIT for 1995.
4. The discussion contained in that portion of the Company's
Prospectus Supplement dated June 20, 1995 to that Prospectus filed with
Registration Statement #33-57453 (the "Prospectus Supplement") under the
caption "Certain Federal Income Tax Considerations to the Company of its
REIT Election" accurately reflects existing law and fairly addresses the
material federal income tax issues described therein. Such discussion is
hereby incorporated herein by this reference.
The opinions expressed herein are based upon the Code, the U.S.
Treasury Regulations promulgated thereunder, current administrative
positions of the U.S. Internal Revenue Service, and existing judicial
decisions, any of which could be changed at any time, possibly on a
retroactive basis. Any such changes could adversely affect the opinions
rendered herein and the tax consequences to the Company and the investors
in the Debt Securities. In addition, as noted above, our opinions are based
solely on the documents that we have examined, the additional information
that we have obtained, and the representations that have been made to us,
and cannot be relied upon if any of the facts contained in such documents
or in such additional information is, or later becomes, inaccurate or if
any of the representations made to us is, or later becomes, inaccurate. No
facts have come to our attention which lead us to believe that we are not
justified in relying upon such representations.
Finally, our opinion is limited to the tax matters specifically
covered thereby, and we have not been asked to address, nor have we
addressed, any other tax consequences of an investment in the Debt
Securities.
We hereby consent to the filing of this opinion as an exhibit to the
Form 8-K filed with respect to the Offering.
HULL, TOWILL, NORMAN
& BARRETT, P.C.
<PAGE>
MERRY LAND & INVESTMENT COMPANY, INC.
AND
FIRST UNION NATIONAL BANK OF GEORGIA
--------------------
First Supplemental Indenture
Dated as of June 1, 1995
--------------------
Supplemental to Indenture dated as of
February 1, 1995
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of June 1, 1995, between Merry
Land & Investment Company, Inc., a Georgia corporation (hereinafter called
the "Company"), having its principal office at 624 Ellis Street, Augusta,
Georgia 30903, and First Union National Bank of Georgia, a national banking
association (hereinafter called the "Trustee"), having its Corporate Trust
Office at 999 Peachtree Street, NE, Suite 1100, Atlanta, Georgia 30309, as
Trustee under the Indenture (as hereinafter defined).
RECITALS
The Company and the Trustee have heretofore entered into an Indenture,
dated as of February 1, 1995 (hereinafter called the "Indenture"),
providing for the issuance by the Company from time to time of its senior
debt securities evidencing its unsecured and unsubordinated indebtedness
(the "Securities");
No Securities have been issued under the Indenture; and.
The Company desires to issue senior debt securities under the
Indenture, and has duly authorized the execution and delivery of this
Supplemental Indenture to modify the Indenture and provide certain
additional provisions and definitions as hereinafter described.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and the Trustee
covenant and agree, for the equal and proportionate benefit of all Holders
of the Securities, as follows:
ARTICLE ONE
1.01 Section 101 of the Indenture is amended as follows:
The following definitions supplement, and, to the extent
inconsistent with, replace the definitions in Section 101 of the Indenture:
"Acquired Debt" means Debt of a Person (i) existing at the
time such Person becomes a Subsidiary or (ii) assumed in
connection with the acquisition of assets from such Person, in
each case, other than Debt incurred in connection with, or in
contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the
date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Subsidiary.
"Annual Service Charge" as of any date means the maximum
amount which is payable in any period for interest on, and
original issue discount of, Debt of the Company and its
Subsidiaries and the amount of dividends which are payable in
respect of any Disqualified Stock.
"Consolidated Income Available for Debt Service" for any
period means Earnings from Operations of the Company and its
Subsidiaries plus amounts which have been deducted, and minus
amounts which have been added, for the following (without
duplication): (i) interest on Debt of the Company and its
Subsidiaries, (ii) provision for taxes of the Company and its
Subsidiaries based on income, (iii) amortization of debt
discount, (iv) provisions for gains and losses on properties and
property depreciation and amortization, (v) the effect of any
noncash charge resulting from a change in accounting principles
in determining Earnings from Operations for such period and (vi)
amortization of deferred charges.
"Debt" of the Company or any Subsidiary means any
indebtedness of the Company or any Subsidiary, whether or not
contingent, in respect of (i) borrowed money or evidenced by
bonds, notes, debentures or similar instruments, (ii)
indebtedness for borrowed money secured by any Encumbrance
existing on property owned by the Company or any Subsidiary,
(iii) the reimbursement obligations, contingent or otherwise, in
connection with any letters of credit actually issued or amounts
representing the balance deferred and unpaid of the purchase
price of any property or services, except any such balance that
constitutes an accrued expense or trade payable, or all
conditional sale obligations or obligations under any title
retention agreement, (iv) the principal amount of all obligations
of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock or (v)
any lease of property by the Company or any Subsidiary as lessee
which is reflected on the Company's Consolidated Balance Sheet as
a capitalized lease in accordance with GAAP, to the extent, in
the case of items of indebtedness under (i) through (iii) above,
that any such items (other than letters of credit) would appear
as a liability on the Company's Consolidated Balance Sheet in
accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation by the Company or any
Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary
course of business), Debt of another Person (other than the
Company or any Subsidiary) (it being understood that Debt shall
be deemed to be incurred by the Company or any Subsidiary
whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any
Capital Stock of such Person which by the terms of such Capital
Stock (or by the terms of any security into which it is
convertible or for which it is exchangeable or exercisable), upon
the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise (other than Capital Stock which is redeemable solely in
exchange for Common Stock), (ii) is convertible into or
exchangeable or excercisable for Debt or Disqualified Stock or
(iii) is redeemable at the option of the holder thereof, in whole
or in part (other than Capital Stock which is redeemable solely
in exchange for Common Stock), in each case on or prior to the
Stated Maturity of the Securities.
"Earnings from Operations" for any period means net earnings
excluding gains and losses on sales of investments, as reflected
in the financial statements of the Company and its Subsidiaries
for such period determined on a consolidated basis in accordance
with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or
security interest of any kind.
"Total Assets" as of any date means the sum of (i) the
Undepreciated Real Estate Assets and (ii) all other assets of the
Company and its Subsidiaries determined in accordance with GAAP
(but excluding accounts receivable and intangibles).
"Total Unencumbered Assets" means the sum of (i) those
Undepreciated Real Estate Assets not subject to an Encumbrance
for borrowed money and (ii) all other assets of the Company and
its Subsidiaries not subject to an Encumbrance for borrowed money
determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the
cost (original cost plus capital improvements) of real estate
assets of the Company and its Subsidiaries on such date, before
depreciation and amortization determined on a consolidated basis
in accordance with GAAP.
"Unsecured Debt" means Debt which is not secured by an
Encumbrance upon any of the properties of the Company or any
Subsidiary.
1.02 A new Section 1004 is created and added to the Indenture to read
as follows:
SECTION 1004. Limitations on Incurrence of Debt.
(a) The Company will not, and will not permit any
Subsidiary to, incur any Debt if, immediately after giving effect
to incurrence of such additional Debt and the application of the
proceeds thereof, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries on a
consolidated basis determined in accordance with GAAP is greater
than 60 % of the sum of (without duplication) (i) the Total
Assets of the Company and its Subsidiaries as of the end of the
calendar quarter covered in the Company's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, most
recently filed with the Commission (or, if such filing is not
permitted under the Exchange Act, with the Trustee) prior to the
incurrence of such additional Debt and (ii) the purchase price of
any real estate assets or mortgages receivable acquired, and the
amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate
assets or mortgages receivable or used to reduce Debt), by the
Company or any Subsidiary since the end of such calendar quarter,
including those proceeds obtained in connection with the
incurrence of such additional Debt.
(b) In addition to the limitations set forth in subsection
(a) of this Section 1004, the Company will not, and will not
permit any Subsidiary to, incur any Debt secured by any
Encumbrance upon any of the property of the Company or any
Subsidiary if, immediately after giving effect to the incurrence
of such additional Debt and the application of the proceeds
thereof, the aggregate principal amount of all outstanding Debt
of the Company and its Subsidiaries on a consolidated basis which
is secured by any Encumbrance is greater than 40 % of the sum of
(without duplication) (i) the Total Assets of the Company and its
Subsidiaries as of the end of the calendar quarter covered in the
Company's Annual Report on Form 10-K or Quarterly Report on Form
10-Q, as the case may be, most recently filed with the Commission
(or, if such filing is not permitted under the Exchange Act, with
the Trustee) prior to the incurrence of such additional Debt and
(ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering
proceeds received (to the extent that such proceeds were not used
to acquire real estate assets or mortgages receivable or used to
reduce Debt), by the Company or any Subsidiary since the end of
such calendar quarter, including those proceeds obtained in
connection with the incurrence of such additional Debt.
(c) In addition to the limitations set forth in subsection
(a) and (b) of this Section 1004, the Company and its
Subsidiaries may not at any time own Total Unencumbered Assets
equal to less than 150% of the aggregate outstanding principal
amount of the Unsecured Debt of the Company and its Subsidiaries
on a consolidated basis.
(d) In addition to the limitations set forth in subsection
(a), (b) and (c) of this Section 1004, the Company will not, and
will not permit any Subsidiary to, incur any Debt if, the ratio
of Consolidated Income Available for Debt Service to the Annual
Service Charge for the four consecutive fiscal quarters most
recently ended prior to the date on which such additional Debt is
to be incurred shall have been less than 1.5:1, on a pro forma
basis giving effect thereto and to the application of the
proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred by the Company and its
Subsidiaries since the first day of such four-quarter period and
the application of the proceeds therefrom, including to refinance
other Debt, had occurred at the beginning of such period; (ii)
the repayment or retirement of any other Debt by the Company and
its Subsidiaries since the first day of each such four-quarter
period had been repaid or retired at the beginning of such period
(except that, in making such computation, the amount of Debt
under any revolving credit facility shall be computed based upon
the average daily balance of such Debt during such period); (iii)
in the case of Acquired Debt or Debt incurred in connection with
any acquisition since the first day of such four-quarter period,
the related acquisition had occurred as of the first day of such
period with the appropriate adjustments with respect to such
acquisition being included in such pro forma calculation; and
(iv) in the case of any acquisition or disposition by the Company
or its Subsidiaries of any asset or group of assets since the
first day of such four-quarter period, whether by merger, stock
purchase or sale, or asset purchase or sale, such acquisition or
disposition or any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments
with respect to such acquisition or disposition being included in
such pro forma calculation.
ARTICLE TWO
2.01 All capitalized terms which are used herein and not otherwise
defined herein are defined in the Indenture and are used herein with the
same meanings as in the Indenture.
2.02 This First Supplemental Indenture shall be effective as of the
date first above written and upon the execution and delivery hereof by each
of the parties hereto.
2.03 This First Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
2.04 This First Supplemental Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and
the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers
hereunto duly authorized, all as of the day and year first above written.
MERRY LAND & INVESTMENT COMPANY, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
Attest:
By:__________________________________
FIRST UNION NATIONAL BANK OF GEORGIA,
as Trustee
By:__________________________________
Name:________________________________
Title:_______________________________
Attest:
By:__________________________________
