____________________________________________________________________________
____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) March 28, 1995
(March 23, 1995)
NEW PLAN REALTY TRUST
____________________________________________________________________________
(Exact Name of Registrant as Specified in Charter)
Massachusetts 0-7532 13-1995781
____________________________________________________________________________
(State or Other Jurisdiction (Commission IRS Employer
of Incorporation) File Number) Identification No.)
1120 Avenue of the Americas, New York, New York 10036
____________________________________________________________________________
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (212) 869-3000
_____________
____________________________________________________________________________
(Former Name or Former Address, if Changed Since Last Report)
____________________________________________________________________________
____________________________________________________________________________
<PAGE>
Item 5. Other Events.
New Plan Realty Trust, a Massachusetts business trust (the "Company")
has commenced an offering of senior debt securities (the "Senior
Securities") in an aggregate principal amount equal to $100,000,000, as
described in the Company's Preliminary Prospectus Supplement dated March 23,
1995 to the Company's Prospectus dated March 23, 1995. The Senior
Securities were registered as part of the Company's Registration Statement
(No. 33-53311), which was declared effective by the Securities and Exchange
Commission on May 23, 1994.The Senior Securities are to be issued under a
Senior Securities Indenture to be entered into by the Company and The First
National Bank of Boston, as trustee (the "Senior Securities Trustee").
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of Businesses Acquired.
None
(b) Pro Forma Financial Information.
None
(c) Exhibits.
1. Form of Senior Securities Indenture to be entered into
by the Company and The First National Bank of Boston, as
trustee.
2. Statement of Eligibility of Senior Securities Trustee on
Form T-1.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: March 28, 1995
NEW PLAN REALTY TRUST
By: /s/ MICHAEL I. BROWN
___________________________________
Michael I. Brown
Chief Financial Officer
and Controller
DRAFT
3/27/95
_____________________________________________________
NEW PLAN REALTY TRUST
TO
THE FIRST NATIONAL BANK OF BOSTON
Trustee
__________________________
Indenture
Dated as of March __, 1995
__________________________
Senior Securities
_____________________________________________________
<PAGE>
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper. . . . . . . . . . . . . . . . . . . . . . 2
Bankruptcy Law. . . . . . . . . . . . . . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . . . . . . . 3
Board of Trustees . . . . . . . . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Common Shares . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . . . . . . . 3
Consolidated Income Available for Debt Service. . . . . . . . . 3
Consolidated Net Income . . . . . . . . . . . . . . . . . . . . 4
Conversion Event. . . . . . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office. . . . . . . . . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . . . . . . . . 4
coupon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Custodian . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . . . . . . . 5
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ECU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Euroclear . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
European Communities. . . . . . . . . . . . . . . . . . . . . . 5
European Monetary System. . . . . . . . . . . . . . . . . . . . 5
Event of Default. . . . . . . . . . . . . . . . . . . . . . . . 5
Foreign Currency. . . . . . . . . . . . . . . . . . . . . . . . 5
GAAP. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Government Obligations. . . . . . . . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indexed Security. . . . . . . . . . . . . . . . . . . . . . . . 6
interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Interest Payment Date . . . . . . . . . . . . . . . . . . . . . 7
Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Maximum Annual Service Charge . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . . . . . . . . 7
Opinion of Counsel. . . . . . . . . . . . . . . . . . . . . . . 7
Original Issue Discount Security. . . . . . . . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . . . . . . . 9
Person. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Place of Payment. . . . . . . . . . . . . . . . . . . . . . . . 9
Predecessor Security. . . . . . . . . . . . . . . . . . . . . . 9
Preferred Shares. . . . . . . . . . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . . . . . . .10
Redemption Price. . . . . . . . . . . . . . . . . . . . . . . .10
Registered Security . . . . . . . . . . . . . . . . . . . . . .10
Regular Record Date . . . . . . . . . . . . . . . . . . . . . .10
Repayment Date. . . . . . . . . . . . . . . . . . . . . . . . .10
Repayment Price . . . . . . . . . . . . . . . . . . . . . . . .10
Responsible Officer . . . . . . . . . . . . . . . . . . . . . .10
Security. . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Security Register and Security Registrar. . . . . . . . . . . .11
Significant Subsidiary. . . . . . . . . . . . . . . . . . . . .11
Special Record Date . . . . . . . . . . . . . . . . . . . . . .11
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . . .11
Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . .11
Total Assets. . . . . . . . . . . . . . . . . . . . . . . . . .11
Trust Indenture Act or TIA. . . . . . . . . . . . . . . . . . .11
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Undepreciated Real Estate Assets. . . . . . . . . . . . . . . .11
Unencumbered Total Asset Value. . . . . . . . . . . . . . . . .12
United States . . . . . . . . . . . . . . . . . . . . . . . . .12
United States person. . . . . . . . . . . . . . . . . . . . . .12
Yield to Maturity . . . . . . . . . . . . . . . . . . . . . . .12
SECTION 102. Compliance Certificates and Opinions . . . . . . . . .12
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . .13
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . .13
SECTION 105. Notices, etc., to Trustee and Company. . . . . . . . .15
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . .16
SECTION 107. Effect of Headings and Table of Contents . . . . . . .17
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . .17
SECTION 109. Separability Clause. . . . . . . . . . . . . . . . . .17
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . . . .17
SECTION 111. Governing Law. . . . . . . . . . . . . . . . . . . . .17
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . .18
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. . . . . . . . . . . . . . . . . .18
SECTION 202. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . . . . . . .19
SECTION 203. Securities Issuable in Global Form . . . . . . . . . .19
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . .20
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . .24
SECTION 303. Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . . . . . . .25
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . .27
SECTION 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . .30
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . .34
SECTION 307. Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . . . . . .36
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . .38
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . .39
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . .40
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . .40
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . .41
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . .42
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . .44
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . .45
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . .46
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. . . . . . . . .47
SECTION 506. Application of Money Collected . . . . . . . . . . . .47
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . .47
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and
Additional Amounts . . . . . . . . . . . . . . . . .48
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . .48
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . .49
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . .49
SECTION 512. Control by Holders of Securities . . . . . . . . . . .49
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . .49
SECTION 514. Waiver of Usury, Stay or Extension Laws. . . . . . . .50
SECTION 515. Undertaking for Costs. . . . . . . . . . . . . . . . .50
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . .51
SECTION 602. Certain Rights of Trustee. . . . . . . . . . . . . . .51
SECTION 603. Not Responsible for Recitals or Issuance
of Securities. . . . . . . . . . . . . . . . . . . .53
SECTION 604. May Hold Securities. . . . . . . . . . . . . . . . . .53
SECTION 605. Money Held in Trust. . . . . . . . . . . . . . . . . .53
SECTION 606. Compensation and Reimbursement . . . . . . . . . . . .53
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. . . . . . . . . . . . . . . .54
SECTION 608. Resignation and Removal; Appointment of
Successor. . . . . . . . . . . . . . . . . . . . . .54
SECTION 609. Acceptance of Appointment by Successor . . . . . . . .56
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . .57
SECTION 611. Appointment of Authenticating Agent. . . . . . . . . .58
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders. . . . . . . . . . . . . . . . . . . . . . .60
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . .60
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . .60
SECTION 704. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . . . . . . .61
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. . . . . . . . . . . .62
SECTION 802. Rights and Duties of Successor
Corporation. . . . . . . . . . . . . . . . . . . . .62
SECTION 803. Officers' Certificate and Opinion of
Counsel. . . . . . . . . . . . . . . . . . . . . . .63
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . . . . . . .63
SECTION 902. Supplemental Indentures with Consent of
Holders. . . . . . . . . . . . . . . . . . . . . . .65
SECTION 903. Execution of Supplemental Indentures . . . . . . . . .66
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . .66
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . .66
SECTION 906. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . .67
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any,
Interest and Additional Amounts. . . . . . . . . . .67
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . .67
SECTION 1003. Money for Securities Payments to Be Held
in Trust . . . . . . . . . . . . . . . . . . . . . .69
SECTION 1004. Limitations on Incurrence of Debt . . . . . . . . . .71
SECTION 1005. Existence . . . . . . . . . . . . . . . . . . . . . .72
SECTION 1006. Maintenance of Properties . . . . . . . . . . . . . .73
SECTION 1007. Insurance . . . . . . . . . . . . . . . . . . . . . .73
SECTION 1008. Payment of Taxes and Other Claims . . . . . . . . . .73
SECTION 1009. Provision of Financial Information. . . . . . . . . .73
SECTION 1010. Statement as to Compliance. . . . . . . . . . . . . .74
SECTION 1011. Additional Amounts. . . . . . . . . . . . . . . . . .74
SECTION 1012. Waiver of Certain Covenants . . . . . . . . . . . . .75
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . .76
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . .76
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . . . . . . .76
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . .77
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . .78
SECTION 1106. Securities Payable on Redemption Date . . . . . . . .78
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . .80
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . .80
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . . . . . .80
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . .81
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . .81
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . .81
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . . . .82
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable . . . . . . . . . . . . . . .83
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . .84
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . .84
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . . . .84
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . .85
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . .86
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions . . . . . . . . . . . . . .88
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . . . . . . . .89
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . . . .89
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . . . .90
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . . . .90
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings. . . . . . . . . . . . .91
SECTION 1506. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . . . . . .92
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
NEW PLAN REALTY TRUST
Reconciliation and tie between Trust Indenture Act of 1939
(the "1939 Act") and Indenture, dated as of March __, 1995
1939 Act Section Indenture Section
Section 310(a)(1) ................................. 607
(a)(2) ................................. 607
(b) .................................... 607, 608
Section 312(c) .................................... 701
Section 313(a) .................................... 702
(c) .................................... 702
Section 314(a) .................................... 703
(a)(4) ................................. 1010
(c)(1) ................................. 102
(c)(2) ................................. 102
(e) .................................... 102
Section 315(b) .................................... 601
Section 316(a) (last sentence) .................... 101 ("Outstanding")
(a)(1)(A) .............................. 502, 512
(a)(1)(B) .............................. 513
(b) .................................... 508
Section 317(a)(1) ................................. 503
(a)(2) ................................. 504
Section 318(a) .................................... 111
(c) .................................... 111
_______________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 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, dated as of March __, 1995, between NEW PLAN
REALTY TRUST, a Massachusetts business trust (hereinafter called the
"Company"), having its principal office at 1120 Avenue of the Americas, New
York, New York 10036 and THE FIRST NATIONAL BANK OF BOSTON, a national
banking association organized under the laws of the United States of
America, as Trustee hereunder (hereinafter called the "Trustee"), having
its Corporate Trust Office at 150 Royall Street, Canton, Massachusetts
02021.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing its unsecured and unsubordinated indebtedness, and
has duly authorized the execution and delivery of this Indenture to provide
for the issuance from time to time of the Securities, unlimited as to
principal amount, to bear interest at the rates or formulas, to mature at
such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are deemed to be incorporated into
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement
of the 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 unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to
them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned
to them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the 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 any Security established pursuant to
Section 201 which is payable to bearer.
"Board of Trustees" means the board of trustees of the Company,
the executive committee or any committee of that board duly authorized to
act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Trustees and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any
Securities pursuant to Section 301, any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking
institutions in that Place of Payment or particular location are authorized
or required by law, regulation or executive order to close.
"CEDEL" means 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 Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such date.
"Common Shares" means, with respect to any Person, capital stock
or shares of beneficial interest issued by such Person other than Preferred
Shares.
"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 its Chairman
of the Board, the President or a Vice President, and by its 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 Consolidated Net Income of the Company and its Subsidiaries plus
amounts which have been deducted for (a) interest on Debt of the Company
and its Subsidiaries, (b) provision for taxes of the Company and its
Subsidiaries based on income, (c) amortization of debt discount, (d)
property depreciation and amortization and (e) the effect of any noncash
charge resulting from a change in accounting principles in determining
Consolidated Net Income for such period.
"Consolidated Net Income" for any period means the amount of
consolidated net income (or loss) of the Company and its Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country 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 150
Royall Street, Canton, Massachusetts 02021 and, for purposes of the Place
of Payment provisions of Section 1002, is located at c/o BancBoston Trust
Company of New York, 55 Broadway, New York, New York 10006.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Custodian" has the meaning specified in Section 501.
"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 secured by any mortgage, pledge, lien,
charge, encumbrance or any security interest existing on property owned by
the Company or any Subsidiary, (iii) letters of credit or amounts
representing the balance deferred and unpaid of the purchase price of any
property except any such balance that constitutes an accrued expense or
trade payable or (iv) 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, in the case
of items of indebtedness under (i) through (iii) above to the extent that
any such items (other than letters of credit) would appear as a liability
on 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), indebtedness of another person (other than
the Company or any Subsidiary).
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"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.
"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 in
effect from time to time, as used in the United States applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued
the Foreign Currency in which the Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such
government which issued the Foreign Currency in which the Securities of
such series are payable, the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America or
such other government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or 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 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", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the
Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment or otherwise.
"Maximum Annual Service Charge" as of any date means the maximum
amount which may become payable in any period of 12 consecutive calendar
months from such date for interest on, and required amortization of, Debt.
The amount payable for amortization shall include the amount of any sinking
fund or other analogous fund for the retirement of Debt and the amount
payable on account of principal on any such Debt which matures serially
other than at the final maturity date of such Debt.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Trustees, 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 counsel for the Company or who may be an employee of or other counsel
for the Company and who shall be reasonably 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 cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the 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 obliga-
tions of the Company; and
(v) Securities converted into Common Shares or Preferred Shares
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 TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted
in making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal
thereof that would be (or shall have been declared to be) due and payable,
at the time of such determination, upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502, (ii) the principal amount of
any Security denominated in a Foreign Currency that may be counted in
making such determination or calculation and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent,
determined pursuant to Section 301 as of the date such Security is
originally issued by the 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 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 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, if any) or interest on any Securities or
coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of
or within any series, means the place or places where the principal of (and
premium, if any) and interest on such Securities are payable as specified
as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
or a Security to which a mutilated, destroyed, lost or stolen coupon
appertains shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to which the mutilated,
destroyed, lost or stolen coupon appertains.
"Preferred Shares" means, with respect to any Person, capital
stock or shares of beneficial interest issued by such Person that is
entitled to a preference or priority over any other capital stock or shares
of beneficial interest issued by such Person upon any distribution of such
Person's assets, whether by dividend or upon liquidation.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is registered
in the Security Register.
"Regular Record Date" for the 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 at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to be
repaid by or pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman
or vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a
word or words added before or after the title "vice president"), the
secretary, any assistant secretary, the treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
such officer's knowledge and familiarity with the particular subject.
"Security" has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such
Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated
and delivered under this Indenture, exclusive, however, of Securities of
any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a
"significant subsidiary" (as defined in Article I, Rule 1-02 of Regulation
S-X, promulgated under the Securities Act of 1933) 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", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" means a corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or
by one or more other Subsidiaries of the Company. For the purposes of this
definition, "voting stock" means stock having voting power for the election
of directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"Total Assets" means as of any date the sum of (i) 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).
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended and as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and
thereafter "Trustee" shall mean or include each Person who is then a
Trustee hereunder; provided, however, that if at any time there is more
than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean only the Trustee with respect to Securities of that
series.
"Undepreciated Real Estate Assets" means as of any date the
amount 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.
"Unencumbered Total Asset Value" means as of any date the sum of
the Company's Total Assets which are unencumbered by any mortgage, lien,
charge, pledge or security interest.
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the United States
or an estate or trust the income of which is subject to United States
federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such
Security in accordance with generally accepted United States bond yield
computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
application or request by the 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 relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied
with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates delivered pursuant to Section 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, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the 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.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary,
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 depositary, or exhibited to it, the Bearer Securities
therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate
or affidavit is deemed by the Trustee to be satisfactory. The Trustee and
the 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 Division, 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,
Attention: General Counsel, 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 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, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and the
Holders any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. Governing Law. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law
of the State of New York. This Indenture is subject to the provisions of
the TIA that are required to be part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 112. Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in the
Securities of any series which specifically states that such provision
shall apply in lieu hereof), payment of interest or any Additional Amounts
or principal (and premium, if any) 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, of each series and
related coupons shall be in substantially the forms as shall be established
in one or more indentures supplemental hereto or approved from time to time
by or pursuant to a Board Resolution in accordance with Section 301, shall
have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed
thereon as the 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.
THE FIRST NATIONAL BANK OF BOSTON,
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 Outstand-
ing 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 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 one or more Board Resolutions or pursuant to authority
granted by one or more Board Resolutions and, subject to Section 303, set
forth, or determined in the manner provided, in an Officers' Certificate,
or established in one or more indentures supplemental hereto, prior to the
issuance of Securities of any series, any or all of the following, as
applicable (each of which (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 the series when issued
from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to Section 304,
305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or
dates will be determined, on which the principal of the Securities
of the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates
shall be determined, the Interest Payment Dates on which such
interest will be payable and the Regular Record Date, if any, for
the interest payable on any Registered Security on any Interest
Payment Date, or the method by which such date shall be determined,
and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to
the Borough of Manhattan, The City of New York, where the principal
of (and premium, if any), interest, if any, on, and Additional
Amounts, if any, payable in respect of, Securities of the series
shall be payable, any Registered Securities of 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 the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the currency or currencies, currency unit or units or
composite currency or currencies in which, and other terms and
conditions upon which Securities of 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 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 the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered
Securities of the series shall be issuable and, if other than the
denomination of $5,000, the denomination or denominations in which
any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or, if applicable, the portion of the
principal amount of Securities of the series that is convertible in
accordance with the provisions of this Indenture, or the method by
which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies
in which payment of the principal of (and premium, if any) or
interest or Additional Amounts, if any, on the Securities of the
series shall be payable or in which the Securities of the series
shall be denominated;
(12) whether the amount of payments of principal of (and
premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or
other method (which index, formula or method may be based, without
limitation, on one or more currencies, currency units, composite
currencies, commodities, equity indices or other indices), and the
manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any) or interest
or Additional Amounts, if any, on the Securities of 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 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 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 the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons)
or both, any restrictions applicable to the offer, sale or delivery
of Bearer Securities and the terms upon which Bearer Securities of
the series may be exchanged for Registered Securities of the series
and vice versa (if permitted by applicable laws and regulations),
whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and,
if so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, and, if Registered
Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security
of the series shall be payable, if other than the Person in whose
name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons apper-
taining thereto as they severally mature, and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in
the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of,
in addition to or in lieu of any of the provisions of Article
Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities
to be authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1011 on the Securities
of the series to any Holder who is not a United States person
(including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so,
whether the 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 the Company's
Common Shares or Preferred Shares, as the case may be, 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 and any requirements relative to the reservation of
such shares for purposes of conversion); and
(24) if convertible, in connection with the preservation of the
Company's status as a real estate investment trust under the
applicable provisions of the Internal Revenue Code of 1986, as
amended, any applicable limitations on the ownership or
transferability of the Common Shares or Preferred Shares into which
such series of Securities is convertible.
(25) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except
as may otherwise be provided in or pursuant to such Board Resolution
(subject to Section 303) and set forth in such Officers' Certificate or in
any such indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and, unless otherwise provided, a
series may be reopened, without the consent of the Holders, for issuances
of additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a
copy of an appropriate record of such action(s) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series
shall be issuable in such denominations as shall be specified as
contemplated by Section 301. With respect to Securities of any series
denominated in Dollars, in the absence of any such provisions 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 a denomination 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 Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon, and
attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities and coupons may be
manual or facsimile signatures of the present or any future such authorized
officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the 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 issu-
ance, no Bearer Security shall be mailed or otherwise delivered to any
location in the United States; and provided further that, unless otherwise
specified with respect to any series of Securities pursuant to Section 301,
a Bearer Security may be delivered in connection with its original issuance
only if the Person entitled to receive such Bearer Security shall have
furnished a certificate to Euroclear or Cedel, as the case may be, in the
form set forth in Exhibit A-1 to this Indenture or such other certificate
as may be specified with respect to any series of Securities pursuant to
Section 301, dated no earlier than 15 days prior to the earlier of the date
on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture.
If any Security shall be represented by a permanent global Bearer Security,
then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with its original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver
any Bearer Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one
time and if the Board Resolution or supplemental indenture establishing
such series shall so permit, such 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 stating that
(a) the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
and
(c) such Securities, together with any coupons apper-
taining thereto, when completed by appropriate insertions 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
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of
the Securities have been complied with and that, to the best of the
knowledge of the signers of such certificate, no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the
preceding paragraph, if all the Securities of any series are not to be
issued at one time, it shall not be necessary to deliver an Officers'
Certificate otherwise required pursuant to Section 301 or a Company Order,
or an Opinion of Counsel or an Officers' Certificate otherwise required
pursuant to the preceding paragraph at the time of issuance of each
Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be
delivered at or before the time of issuance of the first Security of such
series.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there
appears on such Security or Security to which such coupon appertains a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder and is entitled to the benefits of
this Indenture. Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
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 and
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 pre-
paration 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 in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company ("DTC"). If any such temporary Security is issued
in global form, then such temporary global Security shall, unless otherwise
provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear
and CEDEL, for credit to the respective accounts of the beneficial owners
of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such
temporary global Security (the "Exchange Date"), the Company shall deliver
to the Trustee definitive Securities, in 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 Depositary 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 the same series of authorized denominations and of
like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any
such temporary global Security shall be in bearer form, registered form,
permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if
any combination thereof is so specified, as requested by the beneficial
owner thereof; provided, however, that, unless otherwise specified in such
temporary global Security, upon such presentation by the Common Depositary,
such temporary global Security shall be accompanied by a certificate dated
the Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a subsequent date
and signed by CEDEL as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set forth in
Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and provided further that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account
holder instructs Euroclear or CEDEL, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or CEDEL, as the case may
be, a certificate in the form set forth in Exhibit A-1 to this Indenture
(or in such other form as may be established pursuant to Section 301),
dated no earlier than 15 days prior to the Exchange Date, copies of which
certificate shall be available from the offices of Euroclear and CEDEL, the
Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series
and of like tenor authenticated and delivered hereunder, except that,
unless otherwise specified as contemplated by Section 301, interest payable
on a temporary global Security on an Interest Payment Date for Securities
of such series occurring prior to the applicable Exchange Date shall be
payable to Euroclear and CEDEL on such Interest Payment Date upon delivery
by Euroclear and CEDEL to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other forms
as may be established pursuant to Section 301), for credit without further
interest on or after such Interest Payment Date to the respective accounts
of Persons who are the beneficial owners of such temporary global Security
on such Interest Payment Date and who have each delivered to Euroclear or
CEDEL, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth as Exhibit A-1 to this Indenture (or in such other forms
as may be established pursuant to Section 301). Notwithstanding anything
to the contrary herein contained, the certifications made pursuant to this
paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303
of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of cer-
tification if such date occurs after the Exchange Date, without further act
or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been
exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the 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.
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 by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers'
Certificate, or in any indenture supplemental hereto, delivered as
contemplated by Section 301, at the option of the Holder, Bearer Securities
of any series may be exchanged for Registered Securities of the same series
of any authorized denominations and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured coupons and all matured coupons
in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the
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 depositary for any
permanent global Security is DTC, then, unless the terms of such global
Security expressly permit such global Security to be exchanged in whole or
in part for definitive Securities, a global Security may be transferred, in
whole but not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected or approved
by the 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
depositary for the applicable global Security or Securities or if at any
time DTC ceases to be a clearing agency registered under the Securities
Exchange Act of 1934 if so required by applicable law or regulation, the
Company shall appoint a successor depositary with respect to such global
Security or Securities. If (x) a successor depositary for such global
Security or Securities is not appointed by the 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 depositary 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, 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 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
depositary 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
Company and the Security Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the 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, register the
transfer of or exchange any Security which has been surrendered for
repayment at the option of the Holder, except the portion, if any, of such
Security not to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the 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 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, 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 and at the Company's option, by transfer
to an account maintained by the payee with a bank located outside the
United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as
the case may be, with respect to that portion of such permanent global
Security held for its account by Cede & Co. or the Common Depositary, as
the case may be, for the purpose of permitting such party to credit the
interest received by it in respect of such permanent global Security to the
accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of
business (at an office or agency in a Place of Payment for such series) on
any Regular Record Date and before the opening of business (at such office
or agency) on the next succeeding Interest Payment Date, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date and interest will not be payable on such Interest Payment Date
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest
on any Registered Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
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 arrange-
ments 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,
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 depositary, as
a Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of
such depositary (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 cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenti-
cated 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 cancelled 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 cancelled 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 authen-
ticated 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 mutilated,
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, if any) and interest, and any Additional Amounts with
respect thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the 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 satis-
faction 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.
SECTION 402. Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with
the Trustee pursuant to Section 401 shall be held in trust and applied by
it, in accordance with the provisions of the Securities, the coupons and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium,
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. "Event of Default", wherever
used herein with respect to any particular series of Securities, means any
one of the following events with respect to such series of Securities
(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), it being understood
that an Event of Default with respect to a particular series of Securities
does not constitute an Event of Default with respect to any other series of
Securities:
(1) default in the payment of any interest upon or any
Additional Amounts payable in respect of any Security of that series
or of any coupon appertaining thereto, when such interest,
Additional Amounts or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable
at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series; or
(4) default in the performance, 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) if any event of default under any bond, debenture, note or
other evidence of indebtedness of the Company (including an event of
default with respect to any other series of Securities), or under
any mortgage, indenture or other instrument of the Company under
which there may be issued or by which there may be secured or
evidenced any indebtedness of 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),
whether such indebtedness now exists or shall hereafter be created,
shall exist and shall result in an aggregate principal amount
exceeding $10,000,000 of such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebtedness
having been discharged, or such acceleration having been rescinded
or annulled, within a period of 30 days after there shall have been
given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series
a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; or
(6) the Company or any Significant Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(7) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any Significant
Subsidiary or for all or substantially all of either of its
property, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days;
or
(8) any other Event of Default provided with respect to
Securities of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11, U.S.
Code or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default with respect to Securities of any series
at the time Outstanding occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series may declare the principal (or, if
any Securities are Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be specified in the terms
thereof) of all the Securities of that series to be due and payable
immediately, by a notice in writing to the 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 are payable (except
as otherwise specified pursuant to Section 301 for the Securities of
such series):
(A) all overdue installments of interest on and any
Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) any
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest and any
Additional Amounts at the rate or rates borne by or provided for
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium,
if any) or interest on Securities of that series which have become
due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
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, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand by the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities of such series and coupons,
the whole amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest and Additional Amount, with
interest upon any overdue principal (and premium, if any) and, to the
extent that payment of such interest shall be legally enforceable, upon any
overdue installments of interest or Additional Amounts, if any, at the rate
or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the 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, 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, 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, if any)
or interest and any Additional Amounts, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest and any Additional Amounts payable, in respect of which or
for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for
principal (and premium, if any), interest and Additional Amounts,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject
to Sections 305 and 307) interest on, and any Additional Amounts in respect
of, such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 509. Restoration of Rights and Remedies. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding
to enforce any right or remedy 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.
SECTION 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series
and any related coupons waive any past default hereunder with respect to
such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on or Additional Amounts payable in respect of any Security
of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The
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, if any) or
interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided
in TIA Section 313(c), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on or any Additional Amounts
with respect to any Security of such series, or in the payment of any
sinking fund installment with respect to the Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Holders of the
Securities and coupons of such series; and provided further that in the
case of any default or breach of the character specified in Section 501(4)
with respect to the Securities and coupons of such series, no such notice
to Holders shall be given until at least 60 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any
event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the 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
Trustees may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or
any related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabili-
ties which might be incurred by it in compliance with such request
or direction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder; and
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and reasonably believed by
it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers,
if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
Except during the continuance of an Event of Default, the
Trustee undertakes to perform only such duties as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except
the Trustee's certificate of authentication, and in any coupons shall be
taken as the statements of the 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 any money received by it hereunder except as otherwise agreed
with the Company.
SECTION 606. Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time reasonable compen-
sation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its own part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 501(6) or
Section 501(7), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any applicable Federal or state
bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the
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, 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. If such
corporation publishes reports of condition at least annually, pursuant to
law or the requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
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, remov-
al 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, con-
version 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
shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of
America or of any State or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or the requirements
of the aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation
shall be otherwise eligible under this Section, without the execution or
filing of any paper or further act on the part of the Trustee or the
Authenticating Agent.
An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the 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 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.
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By:____________________________,
as Authenticating Agent
By:____________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
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 May 15
of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail
to all Holders of Securities as provided in TIA Section 313(c) a brief
report dated as of such May 15 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 Securities Exchange Act of 1934;
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 Securities
Exchange Act of 1934 in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the 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 list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to Certain Conditions. The
Company may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided
that in any such case, (1) either the Company shall be the continuing
corporation, or the successor corporation shall be a corporation organized
and existing under the laws of the United States or a State thereof and
such successor corporation shall expressly assume the due and punctual
payment of the principal of (and premium, if any) and any interest
(including all Additional Amounts, if any, payable pursuant to Section
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 corporation 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 corporation, such successor
corporation 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 corporation, except in the event of a lease, shall be
relieved of any further obligation under this Indenture and the Securities.
Such successor corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the 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 corporation, 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
corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all
respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date
of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such 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 corporation, complies with the provisions of this Article and
that all conditions precedent herein provided for relating to such transac-
tion 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 or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form,
provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301,
including the provisions and procedures relating to Securities
convertible into Common Shares or Preferred Shares, as the case may
be; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee;
or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be defective or inconsistent with any
other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture which shall not
be inconsistent with the provisions of this Indenture, provided such
provisions shall not adversely affect the interests of the Holders
of Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
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 inden-
ture shall, without the consent of the Holder of each Outstanding Security
affected thereby:
(1) change the Stated Maturity of the principal of (or premium,
if any, on) or any installment of principal of or interest on, any
Security; or reduce the principal amount thereof or the rate or
amount of interest thereon or any Additional Amounts payable in
respect thereof, or any premium payable upon the redemption thereof,
or change any obligation of the 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 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, any Security
or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on
or after the 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 solely for the benefit of one or more particular series of
Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the
execution of 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 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.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, 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, 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,
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
registration of transfer, where 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 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 or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on
such exchange; and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange and where notices and demands to or
upon the 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) or conversion 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 pre-
sentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on or
Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the 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 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 or Additional Amounts, 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 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 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each
series of Securities the office or agency of the Company in the Borough of
Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 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, if any), or
interest on or Additional Amounts in respect of, any of the Securities of
that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series) sufficient to pay the principal (and
premium, if any) or interest or Additional Amounts so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so
to act.
Whenever the 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, if any), or interest on or
Additional Amounts in respect of, any Securities of that series, deposit
with a Paying Agent a sum (in the currency or currencies, currency unit or
units or composite currency or currencies described in the preceding
paragraph) sufficient to pay the principal (and premium, if any) or
interest or Additional Amounts, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest or Additional Amounts and (unless such Paying Agent is the
Trustee) the 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, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be
paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any such
payment of principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The 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, if
any) or interest on, or any Additional Amounts in respect of, any Security
of any series and remaining unclaimed for two years after such principal
(and premium, if any), interest or Additional Amounts has become due and
payable shall be paid to the 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, 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. 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 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 consoli-
dated basis determined in accordance with GAAP is greater than 65% of the
sum of (i) the Company's Total Assets as of the end of the fiscal 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 Securities Exchange Act of 1934,
with the Trustee) prior to the incurrence of such additional Debt, (ii) the
purchase price of any real estate assets or mortgages receivable acquired
by the Company or any Subsidiary since the end of such fiscal quarter,
including those obtained in connection with the incurrence of such
additional Debt and (iii) the amount of any securities offering proceeds
received by the Company or any Subsidiary since the end of such fiscal
quarter (to the extent that such proceeds were not used to acquire such
real estate assets or mortgages receivable or used to reduce Debt).
(b) In addition to the limitation set forth in subsection (a)
of this Section 1004, the Company will not, and will not permit any
Subsidiary to, incur any Debt if Consolidated Income Available for Debt
Service for any 12 consecutive calendar months within the 15 calendar
months immediately preceding the date on which such additional Debt is to
be incurred shall have been less than 1.5 times the Maximum Annual Service
Charge on the Debt of the Company and all Subsidiaries to be outstanding
immediately after the incurring of such additional Debt.
(c) In addition to the limitations set forth in subsections (a)
and (b) of this Section 1004, the Company will not, and will not permit any
Subsidiary to, incur any Debt secured by any mortgage, lien, charge,
pledge, encumbrance or security interest of any kind upon any of the
property of the Company or any Subsidiary, whether owned at the date hereof
or hereafter acquired, 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 mortgage, lien, charge, pledge, encumbrance or security interest on
property of the Company or any Subsidiary is greater than 40% of the sum of
(i) the Company's Total Assets as of the end of the fiscal 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 Securities Exchange Act of 1934, with the
Trustee) prior to the incurrence of such additional Debt, (ii) the purchase
price of any real estate assets or mortgages receivable acquired by the
Company or any Subsidiary since the end of such fiscal quarter, including
those obtained in connection with the incurrence of such additional Debt
and (iii) the amount of any securities offering proceeds received by the
Company or any Subsidiary since the end of such fiscal quarter (to the
extent that such proceeds were not used to acquire such real estate assets
or mortgages receivable or used to reduce Debt).
(d) In addition to the limitations set forth in subsections
(a), (b) and (c) of this Section 1004, the Company will at all times
maintain an Unencumbered Total Asset Value in an amount not less than 100%
of the aggregate principal amount of all outstanding Debt of the Company
and its Subsidiaries that is unsecured.
(e) For purposes of this Section 1004, Debt shall be deemed to
be "incurred" by the Company or a Subsidiary whenever the Company or such
Subsidiary shall create, assume, guarantee or otherwise become liable in
respect thereof.
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 its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company shall not be
required to preserve any right or franchise if the Board of Trustees shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
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 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 adequately
insured against loss or damage with insurers of recognized responsibility
and having an A.M. Best policy holder's rating of not less than A-:V.
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 unless
such lien would not have a material adverse effect upon such property;
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 (i) whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or (ii) for which the
Company has set apart and maintains an adequate reserve.
SECTION 1009. Provision of Financial Information. Whether or
not the Company is subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company will, to the extent permitted under the
Securities Exchange Act of 1934, 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) 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 Securities Exchange Act of 1934 if the Company
were subject to such Sections, and (ii) file with the Trustee copies of the
annual reports, quarterly reports and other documents which the Company
would have been required to file with the Commission pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 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 Securities Exchange Act of 1934,
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 or interest on, or in respect of, any Security of any series or
payment of any related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms
of such series established pursuant to Section 301 to the extent that, in
such context, Additional Amounts are, were or would be payable in respect
thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts,
at least 10 days prior to the first Interest Payment Date with respect to
that series of Securities (or if the Securities of that series will not
bear interest prior to Maturity, the first day on which a payment of
principal and any premium is made), and at least 10 days prior to each date
of payment of principal and any premium or interest if there has been any
change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the 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 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 required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall
not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest
with respect to any Securities of a series or related coupons until it
shall have received a certificate advising otherwise and (ii) to make all
payments of principal and interest with respect to the Securities of a
series or related coupons without withholding or deductions until otherwise
advised. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of
them or in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the 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 1010, inclusive, if before or after
the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities of such series, by Act of
such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the 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, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date the Redemption Price and
accrued interest to the Redemption Date payable as provided in
Section 1106, if any, will become due and payable upon each such
Security, or the portion thereof, to be redeemed and, if applicable,
that interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date,
are to be surrendered for payment of the Redemption Price and
accrued interest, if any, 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 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, and
(11) if applicable, that a Holder of Securities who desires to
convert Securities for redemption must satisfy the requirements for
conversion contained in such Securities, the then existing
conversion price or rate, and the date and time when the option to
convert shall expire.
Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one
Business Day 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
Common Shares or Preferred Shares, 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, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne
by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions
of this Article or of Article Twelve) shall be surrendered at a Place of
Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security
without service charge a new Security or Securities of the same series, of
any authorized denomination as requested by such Holder in aggregate
principal amount equal to and in exchange for the unredeemed portion of the
principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein
referred to as an "optional sinking fund payment". If provided for by the
terms of any Securities of any series, the cash amount of any mandatory
sinking fund payment may be subject to reduction as provided in Section
1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series,
(1) deliver Outstanding Securities of such series (other than any
previously called for redemption) together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto
and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, as provided for by
the terms of such Securities, or which have otherwise been acquired by the
Company; provided that such Securities so delivered or applied as a credit
have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption
Price specified in such Securities for redemption through operation of the
sinking fund and the amount of such mandatory sinking fund payment shall be
reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not
less than 60 days prior to each sinking fund payment date for Securities of
any series, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series) and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section
1202, and the 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 redemp-
tion of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of
Securities of any series before their Stated Maturity at the option of
Holders thereof shall be made in accordance with the terms of such
Securities, if any, and (except as otherwise specified by the terms of such
series established pursuant to Section 301) in accordance with this
Article.
SECTION 1302. Repayment of Securities. Securities of any
series subject to repayment in whole or in part at the option of the
Holders thereof will, unless otherwise provided in the terms of such
Securities, be repaid at a price equal to the principal amount thereof,
together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company
covenants that at least one Business Day prior to the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the 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 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 shall be furnished to them
such security or indemnity as they may require to save each of them and any
Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the
preceding sentence, such Holder shall be entitled to receive the amount so
deducted; provided, however, that interest represented by coupons shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If the principal amount of any Security surrendered for
repayment shall not be so repaid upon surrender thereof, such principal
amount (together with interest, if any, thereon accrued to such Repayment
Date) shall, until paid, bear interest from the Repayment Date at the rate
of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) set forth in such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge and at the expense of the Company, a
new Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount
equal to and in exchange for the portion of the principal of such Security
so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance. If, pursuant to Section 301,
provision is made for either or both of (a) defeasance of the Securities of
or within a series under Section 1402 or (b) covenant defeasance of the
Securities of or within a series under Section 1403, 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 have Section
1402 (if applicable) or Section 1403 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge. Upon the 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, 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 1004 to 1010, inclusive, and, if specified
pursuant to Section 301, its obligations under any other covenant, with
respect to such Outstanding Securities and any coupons appertaining thereto
on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1004 to 1010, inclusive, or such other covenant,
but shall continue to be deemed "Outstanding" for all other purposes here-
under. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section or such
other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a default or an Event of Default under Section 501(4) or 501(8)
or otherwise, as the case may be, but, except as specified above, the
remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons
appertaining thereto, (1) an amount in such currency, currencies or
currency unit in which such Securities and any coupons appertaining
thereto are then specified as payable at Stated Maturity, or (2)
Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the currency,
currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment
of principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto, money in an amount,
or (3) a combination thereof, in any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any) and inter-
est, if any, on such Outstanding Securities and any coupons
appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of
this Indenture and of such Securities and any coupons appertaining
thereto.
(b) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the
Company is a party or by which it is bound.
(c) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit or, insofar as
Sections 501(6) and 501(7) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In the case of an election under Section 1402, the 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) 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, 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, 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,
subject to Section 606, 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 de-
feasance, 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 per-
centage 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 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 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.
* * * * *
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, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above
written.
NEW PLAN REALTY TRUST
By:____________________________
[SEAL] Title:
Attest:
____________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON
as Trustee
By:___________________________
Title:
[SEAL]
Attest:
____________________________
Title: Assistant Cashier<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _____ day of ____________, 1995, before me personally came
___________________, to me known, who, being by me duly sworn, did depose
and say that he/she resides at _________________, ____________ ________,
that he/she is _______________ of NEW PLAN REALTY TRUST, one of the
entities described in and which executed the foregoing instrument; that
he/she knows the seal of said entity; that the seal affixed to said
instrument is such entity's seal; that it was so affixed by authority of
the Board of Trustees of said entity, and that he/she signed his/her name
thereto by like authority.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _____ day of ____________, 1995, before me personally came
___________________, to me known, who, being by me duly sworn, did depose
and say that he/she resides at __________________, that he/she is a
________________ of ____________________________, one of the entities
described in and which executed the foregoing instrument; that he/she knows
the seal of said entity; that the seal affixed to said instrument is such
entity's seal; that it was so affixed by authority of the Board of
Directors of said entity, and that he/she signed his/her name thereto by
like authority.
[Notarial Seal]
_________________________
Notary Public
COMMISSION EXPIRES
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 2.165-12(c)(1)(v) are herein referred to 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 New Plan Realty Trust or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the United States Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) are owned by United States or foreign
financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States
or foreign financial institution described in clause (iii) above (whether
or not also described in clause (i) or (ii)), this is to further certify
that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to
the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
_______________ of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand
an exchange for an interest in a Permanent Global Security or an exchange
for and delivery of definitive Securities (or, if relevant, collection of
any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated: __________________, 19__
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
___________________________
(Authorized 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 U.S.
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale,
or (b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise New Plan
Realty Trust or its agent that such financial institution will comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii)
is owned by United States or foreign financial institution(s) for purposes
of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that
they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United
States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above- captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated: _____________ 19__
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[_______________________,] as
Operator of the
Euroclear System
[Cedel S.A.]
By:_________________________
SECURITIES ACT OF 1993 FILE NO: (IF APPLICATION OF
DETERMINE ELIGIBILITY OF TRUSTEE FOR DELAYED OFFERING
PURSUANT TO SECTION 305(b)(2)
==================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)______
____________________________
THE FIRST NATIONAL BANK OF BOSTON
(Exact name of trustee as specified in its charter)
04-2472499
(I.R.S. employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Gary A. Speiss, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110
(617) 434-2870
(Name, address and telephone number of agent for service)
_______________________________
NEW PLAN REALTY TRUST
(Exact name of obligor as specified in its charter)
MASSACHUSETTS 13-1995781
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1120 AVENUE OF THE AMERICAS 10036
NEW YORK, NEW YORK (Zip Code)
(Address of principal executive offices)
Senior Debt Securities
(Title of indenture securities)
1. General Information
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of the Currency of the United States, Washington,
D.C.
Board of Governors of the Federal Reserve System, Washington,
D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust
powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an
affiliate of the trustee, describe each such affiliation.
None with respect to the Trustee.
(See Notes on page 2)
None with respect to Bank of Boston Corporation.
3. through 11. Not applicable.
12. Indebtedness of the Obligor of the Trustee
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
____________ ___________ ________
N/A -0- N/A
13. through 15. Not applicable.
16. List of Exhibits.
List below all exhibits filed as part of this statement of
eligibility and qualification.
1. A copy of the articles of association of the trustee as
now in effect.
A certified copy of the Articles of Association of the trustee
is filed as Exhibit No. 1 to statement of eligibility and
qualification No. 22-9514 and is incorporated herein by reference
thereto.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the articles of association.
A copy of the certificate of T. McLean Griffin, Cashier of the
trustee, dated February 3, 1978, as to corporate succession
containing copies of the Certificate of the Comptroller of the
Currency that The Massachusetts Bank, National Association, into
which The First National Bank of Boston was merged effective
January 4, 1971, is authorized to commence the business of banking
as a national banking association, as well as a certificate as to
such merger is filed as Exhibit No. 2 to statement of eligibility
and qualification No. 22-9514 and is incorporated herein by
reference thereto.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained in
the documents specified in paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated
February 6, 1978 is filed as Exhibit No. 3 to statement of
eligibility and qualification No. 22-9514 and is incorporated
herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or
instruments corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated
December 23, 1993 is filed as Exhibit No. 4 to statement of
eligibility and qualification No. 22-25754 and is incorporated
herein by reference thereto.
5. The consent of the trustee required by Section 321(b) of
the Act.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto and made a part hereof.
6. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or
examining authority is annexed hereto as Exhibit 7 and made a part
hereof.
NOTES
In answering any item in this Statement of Eligibility and
Qualification which relates to matters peculiarly within the
knowledge of the obligor or any underwriter for the obligor, the
trustee has relied upon information furnished to it by the obligor
and the underwriters, and the trustee disclaims responsibility for
the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be
amended, if necessary, to reflect any facts which differ from those
stated and which would have been required to be stated if known at
the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, The First National Bank of Boston, a national banking
association organized and existing under the laws of The United
States of America, has duly caused this statement of eligibility
and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the Town of Canton and
Commonwealth of Massachusetts, on the 24th day of March, 1995
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: KECIA R. BANKS
_____________________________
KECIA R. BANKS
SENIOR ACCOUNT ADMINISTRATOR
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust
Indenture Act of 1939 in connection with the proposed issue by New
Plan Realty Trust, Senior Debt Securities, we hereby consent that
reports of examinations by Federal, State, Territorial, or District
authorities may be furnished by such authorities to the Securities
and Exchange Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By: KECIA R. BANKS
_____________________________
KECIA R. BANKS
SENIOR ACCOUNT ADMINISTRATOR
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC AND FOREIGN
SUBSIDIARIES, OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business
on December 31, 1994. Published in response to call made by
Comptroller of the Currency, under Title 12, United States Code,
Section 161. Charter number 200. Comptroller of the Currency
Northeastern District.
ASSETS
Dollar
Amounts in
Thousands
__________
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin.............................. $1,862,093
Interest-bearing balances..................... 1,551,280
Securities....................................... 3,935,691
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold............................ 758,937
Securities purchased under
agreements to resell........................ 0
Loans and lease financing receivables:
Loans and leases, net of
unearned income............................ $25,796,462
LESS: Allowance for loan and lease
losses..................................... $ 534,630
LESS: Allocated transfer risk
reserve.................................... $ 0
Loans and leases, net of unearned income,
allowance and reserve....................... 25,261,832
Assets held in trading accounts................... 840,348
Premises and fixed assets (including
capitalized leases)............................ 398,475
Other real estate owned........................... 48,504
Investments in unconsolidated subsidiaries
and associated companies....................... 103,670
Customers' liability to this bank on acceptances
outstanding.................................... 304,031
Intangible assets................................. 651,394
Other assets...................................... 1,170,251
___________
Total Assets................................... $36,886,506
===========
<PAGE>
LIABILITIES
Deposits:
In domestic offices............................ $14,924,310
Noninterest-bearing.............$ 4,035,673
Interest-bearing................ 10,888,637
In foreign offices, Edge and Agreement
subsidiaries, and IBF's........................ 9,998,764
Noninterest-bearing.................570,582
Interest-bearing..................9,428,182
Federal funds purchased and securities sold under
agreements to repurchase in domestic
offices of the bank and of its Edge and
Agreement subsidiaries, and in IBF's:
Federal funds purchased........................ 2,464,904
Securities sold under agreements
to repurchase................................ 277,077
Demand notes issued to the U.S. Treasury.......... 364,045
Trading Liabilities............................... 227,865
Other borrowed money.............................. 3,875,462
Mortgage indebtedness and obligations
under capitalized leases........................ 14,007
Bank's liability on acceptances
executed and outstanding........................ 305,512
Subordinated notes and debentures................. 979,167
Other liabilities.................................. 1,022,105
Total Liabilities.............................. 34,453,218
==========
Limited-life preferred stock and equity capital 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus..... $ 0
Common stock...................................... 82,264
Surplus........................................... 987,524
Undivided profits and capital reserves............ 1,408,062
LESS: Net unrealized loss on marketable
equity securities............................... (39,027)
Cumulative foreign currency translation
adjustments..................................... (5,535)
Total equity capital.............................. 2,433,288
_________
Total Liabilities, Limited-life preferred
stock, and equity..........................$36,866,506
___________
___________
I, Robert T. Jefferson, Comptroller of the above-named bank,
do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
Robert T. Jefferson
February 13, 1995
We, the undersigned directors, attest to the correctness of
this statement of resources and liabilities. We declare that it
has been examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the instructions and
is true and correct.
Charles K. Gifford
Ira Stepanian
J. Donald Monan
Directors
February 13, 1995
