<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 18, 1998
REGISTRATION NO. 333-_______________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NEW PLAN EXCEL REALTY TRUST, INC.
(Exact Name of Registrant as Specified in its Charter)
(FORMERLY EXCEL REALTY TRUST, INC.)
<TABLE>
<S> <C>
Maryland 33-0160389
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
</TABLE>
NEW PLAN REALTY TRUST
(Exact Name of Additional Registrant as Specified in its Declaration of Trust)
<TABLE>
<S> <C>
Massachusetts 13-1995781
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
</TABLE>
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrants' Principal Executive Offices)
<TABLE>
<S> <C>
Agent for Service:
----------------- Copies to:
Steven F. Siegel, Esq. ---------
Senior Vice President and General Counsel J. Warren Gorrell, Jr., Esq.
New Plan Excel Realty Trust, Inc. David W. Bonser, Esq.
New Plan Realty Trust Hogan & Hartson L.L.P.
1120 Avenue of the Americas 885 Third Avenue, 26th Floor
New York, New York 10036 New York, New York 10022
(212) 869-3000 (212) 409-9800
</TABLE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this registration statement becomes effective and from time to
time as determined by market conditions.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
<TABLE>
<CAPTION>
=========================================================================================================================
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
Proposed
Amount to be Maximum Price
Title of Each Class of Securities to be Registered (1) Registered (2) per Security (2)(3)
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities (4) (4)
Debt Guarantees (4) (4)
Preferred Stock, par value $0.01 per share (4) (4)
Depositary Shares, representing Preferred Stock (4) (4)
Common Stock, par value $0.01 per share (4) (4)
Warrants (5) (4) (4)
Rights (4) (4)
- -------------------------------------------------------------------------------------------------------------------------
Total $1,000,000,000 (6) (4)
=========================================================================================================================
</TABLE>
<TABLE>
<CAPTION>
=============================================================================================================================
CALCULATION OF REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------------------
Proposed
Maximum Aggregate Amount of
Title of Each Class of Securities to be Registered (1) Offering Price (2)(3) Registration Fee
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities (4)
Debt Guarantees (4)
Preferred Stock, par value $0.01 per share (4)
Depositary Shares, representing Preferred Stock (4)
Common Stock, par value $0.01 per share (4)
Warrants (5) (4)
Rights (4)
- -----------------------------------------------------------------------------------------------------------------------------
Total $1,000,000,000 (6) $278,000 (7)
=============================================================================================================================
</TABLE>
(1) The securities covered by this Registration Statement may be sold or
otherwise distributed separately, together or as units with other securities
covered by this Registration Statement. This Registration Statement covers
offers, sales and other distributions of the securities listed in this table
from time to time at prices to be determined, as well as debt securities and
debt guarantees issuable upon the exercise of debt warrants so offered or sold,
shares of Preferred Stock distributable upon the termination of a deposit
arrangement for depositary shares so offered or sold, and shares of Common Stock
issuable upon the exchange or conversion of debt securities or shares of
Preferred Stock so offered or sold that are exchangeable for or convertible into
shares of Common Stock or upon the exercise of Common Stock warrants or rights
so offered, sold or distributed. This Registration Statement also covers debt
securities, debt guarantees, shares of Preferred Stock, depositary shares,
shares of Common Stock, warrants and rights that may be offered or sold under
delayed delivery contracts pursuant to which the counterparty may be required
<PAGE> 2
to purchase such securities, as well as such contracts themselves. Such
contracts would be issued with the debt securities, debt guarantees, shares of
Preferred Stock, depositary shares, shares of Common Stock, warrants and/or
rights.
(2) In U.S. dollars or the equivalent thereof for any security denominated in
one or more, or units of two or more, foreign currencies or composite currencies
based on the exchange rate at the time of sale. Debt securities may be issued
with original issue discount such that the aggregate initial public offering
price will not exceed $1,000,000,000 together with the other securities issued
hereunder.
(3) Estimated solely for purposes of calculating the registration fee under Rule
457.
(4) Omitted pursuant to General Instruction II.D of Form S-3 under the
Securities Act of 1933, as amended.
(5) The warrants covered by this Registration Statement may be debt warrants,
Preferred Stock warrants, depositary share warrants or Common Stock warrants.
(6) The aggregate maximum offering price of all securities issued under this
Registration Statement will not exceed $1,000,000,000. No separate consideration
will be received for debt guarantees or for shares of Preferred Stock or Common
Stock that are issued upon conversion or exchange of debt securities, shares of
Preferred Stock or depositary shares registered hereunder or for shares of
Preferred Stock distributed upon termination of a deposit arrangement for
depositary shares.
(7) Calculated under Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended. Pursuant to Rule 429(b), $29,545.62 of the
filing fee was previously paid in connection with the filing of Registration
Statement No. 333-24615. Under Rule 457(n), no separate registration fee is
payable with respect to the debt guarantees.
================================================================================
The Registrants hereby amend this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrants shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
<PAGE> 3
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION BUT HAS NOT BECOME
EFFECTIVE. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE
ACCEPTED BEFORE THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT
SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE
OFFER OR SALE IS UNLAWFUL.
<PAGE> 4
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED NOVEMBER 18, 1998
PROSPECTUS
$1,000,000,000
NEW PLAN EXCEL REALTY TRUST, INC.
DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS
RIGHTS
CORPORATE HEADQUARTERS:
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
------------------------------------------------
We will provide specific terms of these securities
in supplements to this prospectus.
You should read this prospectus and any supplement
carefully before you invest.
------------------------------------------------
These securities have not been approved by the SEC or any state securities
commission, nor have these organizations determined that this prospectus is
accurate or complete. Any representation to the contrary is a criminal offense.
This prospectus is dated November ____, 1998
<PAGE> 5
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this process, New Plan Excel
Realty Trust, Inc. (which we generally refer to as the "Company" in this
prospectus) may offer and sell any combination of the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$1,000,000,000. This prospectus provides you with a general description of the
securities we may offer. Each time we offer securities, we will provide a
prospectus supplement and attach it to this prospectus. The prospectus
supplement will contain specific information about the terms of the securities
being offered at that time. The prospectus supplement may also add, update or
change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement, together with any additional
information you may need to make your investment decision.
WHERE TO FIND ADDITIONAL INFORMATION
The Company files annual, quarterly and special reports, proxy statements
and other information with the SEC. You may read and copy materials the Company
has filed with the SEC at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of its public reference room. The Company's SEC
filings also are available to the public on the SEC's Internet site at
http://www.sec.gov. In addition, you may obtain a copy of the Company's SEC
filings at no cost by writing or telephoning the Company's General Counsel at:
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
(212) 869-3000
The SEC allows the Company to "incorporate by reference" in this
prospectus certain information it files with the SEC, which means that it may
disclose important information in this prospectus by referring the reader to the
document that contains the information. The information incorporated by
reference is considered to be a part of this prospectus, and later information
filed with the SEC will update and supersede this information. The Company
incorporates by reference the documents listed below and any future filings it
makes with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, until the offering of securities covered by this
prospectus is completed:
- - the Proxy Statement/Prospectus of Excel Realty Trust, Inc. (the former
name of the Company) and Proxy Statement of New Plan Realty Trust (which
we generally refer to as "New Plan" or the "Trust" in this prospectus),
dated August 12, 1998, filed separately by such entities with the SEC on
August 18, 1998, which describes the September 1998 merger of Excel Realty
Trust, Inc. and New Plan to form the Company;
- - the Current Reports on Form 8-K of the Company and the Trust filed
separately by such entities with the SEC on October 13, 1998, which
contain information on the closing of the New Plan/Excel merger, including
pro forma operating and financial information of the Company as of and for
the year ended July 31, 1998;
- - the Annual Report on Form 10-K of the Trust for the fiscal year ended
July 31, 1998;
- - the Annual Report on Form 10-K of Excel Realty Trust, Inc. for the
fiscal year ended December 31, 1997;
- - the Quarterly Report on Form 10-Q of the Company for the quarter ended
September 30, 1998;
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<PAGE> 6
- - the Quarterly Report on Form 10-Q of the Trust for the quarter ended
September 30, 1998;
- - the Quarterly Reports on Form 10-Q of Excel Realty Trust, Inc. for the
quarters ended March 31 and June 30, 1998; and
- - the Current Reports on Form 8-K of Excel Realty Trust, Inc. filed with
the SEC on July 14, May 22, May 28, April 2 and January 14, 1998.
The Company and the Trust have filed with the SEC a "shelf" registration
statement on Form S-3 under the Securities Act of 1933, relating to the
securities that may be offered by this prospectus. This prospectus is a part of
that registration statement, but does not contain all of the information in the
registration statement. For more detail concerning the Company, the Trust and
any securities offered by this prospectus, you may examine the registration
statement and the exhibits filed with it at the locations listed in the first
paragraph under this heading.
Readers should rely on the information provided or incorporated by
reference in this prospectus or in the applicable supplement to this prospectus.
Readers should not assume that the information in this prospectus and the
applicable supplement is accurate as of any date other than the date on the
front cover of the document.
THE COMPANY
The Company, a self-administered and self-managed equity real estate
investment trust ("REIT"), is a Maryland corporation and one of the nation's
largest community and neighborhood shopping center companies. In addition to
community and neighborhood shopping centers, the Company owns and manages other
retail and commercial properties and apartment communities in select markets
throughout the United States. As of September 30, 1998, the Company owned
interests in a total of 295 retail properties containing over 37.4 million
square feet of retail space in 31 states. The Company also owned, as of that
date, 54 multifamily residential communities in 14 states containing
approximately 13,000 apartments and four office properties.
The Company's primary objective is to acquire, own and manage a diverse
portfolio of these types of properties in select markets throughout the United
States that will generate stable cash flows and present the opportunity for
capital appreciation. The Company seeks to achieve this objective by:
- - aggressively managing and, where appropriate, redeveloping its existing
properties; and
- - continuing to acquire well-located community and neighborhood shopping
centers as well as other retail and commercial properties and apartment
communities.
As of September 30, 1998, the Company had approximately 750 employees and
25 offices coast-to-coast. Its principal executive offices are located at 1120
Avenue of the Americas, New York, New York 10036, where its telephone number is
(212) 869-3000.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges of the Company (information for all
periods except the two-month period ended September 30, 1998 represents
information of the Trust, which was the acquiring company, for accounting
purposes, in the New Plan/Excel merger) for each of the periods indicated was as
follows :
<TABLE>
<CAPTION>
TWO MONTHS ENDED YEAR ENDED JULY 31,
SEPTEMBER 30, -------------------------------------------------
1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
3.3x 3.4x 3.6x 4.9x 8.1x 17.0x
</TABLE>
3
<PAGE> 7
The ratios of earnings to fixed charges and preferred share dividends of
the Company for the periods in which the Company had preferred shares
outstanding, were as follows:
<TABLE>
<CAPTION>
TWO MONTHS ENDED YEAR ENDED JULY 31,
SEPTEMBER 30, -------------------------
1998 1998 1997
---- ---- ----
<S> <C> <C>
2.9x 3.0x 3.5x
</TABLE>
For purposes of computing these ratios, earnings were calculated by adding
fixed charges (excluding capitalized interest) to income (loss) before real
estate sales, income taxes and extraordinary items. "Fixed charges" consist of
(1) interest costs, whether expensed or capitalized, (2) the interest component
of rental expense, and (3) amortization and write-off of debt discounts and
issue costs, whether expensed or capitalized.
4
<PAGE> 8
RISK FACTORS
Set forth below are the risks that we believe are material to investors
who purchase or own the securities of the Company.
THERE CAN BE NO ASSURANCE THAT THE COMPANY WILL BE SUCCESSFUL IN INTEGRATING
TWO PREVIOUSLY SEPARATE COMPANIES
The New Plan/Excel merger took place in September 1998. There can be no
assurance that the integration of the respective operations of New Plan and
Excel can be completed without substantial difficulties. Such difficulties could
include integrating different business strategies with respect to owning,
operating, acquiring and developing real estate properties, and integrating
personnel with different business backgrounds and corporate cultures. Further,
the process of integrating management services, administrative organizations,
facilities, management information systems and other aspects of operations,
while simultaneously managing a larger and geographically expanded entity, will
present a significant challenge to the management of the Company. This challenge
may be intensified because the Company has decided to have its corporate
headquarters in New York City but to maintain co-operational headquarters in
both New York City and San Diego, the two former corporate headquarters cities
of the merged companies. There can be no assurance that there will not be
substantial costs associated with the integration process, that the integration
activities will not result in a decrease in revenues or that there will not be
other material adverse effects on the Company as a result of the integration
efforts. Although the Company does not expect to incur any current material
charge against earnings for integration costs expected to result from the New
Plan/Excel merger, there can be no assurance that the Company will not in the
future incur material charges to reflect costs associated with the merger. In
addition, the Company may potentially lose key personnel due to the merger and
the possible relocation of certain functions.
THERE CAN BE NO ASSURANCE THAT WE WILL EFFECTIVELY MANAGE THE COMPANY'S GROWTH
We intend to pursue an aggressive growth strategy for the Company in the
foreseeable future. We plan to manage this growth by applying our experience to
new properties and markets, and expect to be successful in that effort. If we do
not effectively manage our rapid growth, however, we may not be able to service
our debt or pay expected dividends to our stockholders.
THE COMPANY IS DEPENDENT ON KEY PERSONNEL
The Company depends upon the efforts of its executive officers. In
particular, the Company depends upon the services of William Newman, Arnold
Laubich and Gary B. Sabin, who serve as Chairman of the Board, Chief Executive
Officer, and President and Chairman of the Investment Committee of the Company,
respectively. We believe that the loss of the services of any of these executive
officers or of certain other key personnel could have a material adverse effect
on the Company. William Newman has entered into an agreement to provide
consulting services to the Company through December 31, 2003, with two automatic
one-year renewal periods thereafter unless terminated by either party. Arnold
Laubich and Gary B. Sabin have each entered into an employment agreement which
has a term through December 31, 2002, with automatic one-year renewal periods
thereafter unless terminated by either party. In addition, the Company has
entered into employment agreements with certain of its other executive officers.
The Company has not obtained "key man" insurance with respect to any members of
its executive management team, however, and does not expect that it will
purchase such insurance in the foreseeable future.
5
<PAGE> 9
OUR PERFORMANCE AND SHARE VALUE ARE SUBJECT TO RISKS ASSOCIATED WITH THE REAL
ESTATE INDUSTRY
THE COMPANY WILL FACE THE RISKS OF ALL REAL ESTATE COMPANIES. If our
assets do not generate income sufficient to pay our expenses and maintain our
properties, we may not be able to service our debt or pay expected dividends to
our stockholders. A number of factors may adversely affect the economic
performance of the Company and the value of its properties. These factors
include changes in the national, regional and local economic climate, local
conditions, such as an oversupply of space in properties like those owned by the
Company, or a reduction in demand for such properties, the attractiveness of our
properties to tenants, competition from other available properties, changes in
market rental rates and the need to periodically repair, renovate and relet
space. Our performance also depends on our ability to collect rent from tenants
and to pay for adequate maintenance, insurance and other operating costs
(including real estate taxes), which could increase over time. Also, the
expenses of owning and operating a property are not necessarily reduced when
circumstances such as market factors and competition cause a reduction in income
from the property. If a property is mortgaged and we are unable to make the
mortgage payments, the lender could foreclose on the mortgage and take the
property. In addition, interest rate levels, the availability of financing and
changes in laws and governmental regulations (including those governing usage,
zoning, the environment and taxes) may adversely affect our financial condition.
WE MAY BE UNABLE TO RENEW LEASES OR RELET SPACE AS LEASES EXPIRE. If our
tenants decide not to renew their leases upon expiration, we may not be able to
relet the space. Even if the tenants do renew or we can relet the space, the
terms of renewal or reletting (including the cost of required renovations) may
be less favorable than current lease terms or than our expectations for the
space. As of September 30, 1998, leases were scheduled to expire on a total of
approximately 35% of the space at the Company's retail properties through the
end of 2002. If we are unable promptly to renew the leases or relet this space,
or if the rental rates upon renewal or reletting are significantly lower than
expected rates, then our results of operations and financial condition will be
adversely affected. Consequently, our cash flow and ability to service debt and
pay dividends to stockholders would be adversely affected.
WE ARE DEPENDENT UPON THE FINANCIAL HEALTH OF OUR TENANTS. Although the
Company has no single tenant that accounts for more than 5% of its revenues, the
Company's financial position and ability to pay dividends may be affected by
financial difficulties experienced by a major tenant, including a bankruptcy,
insolvency or general downturn in business. The bankruptcy or insolvency of one
or more major tenants or a number of smaller tenants may have an adverse impact
on our properties and on the income produced by such properties.
NEW ACQUISITIONS AND DEVELOPMENTS MAY FAIL TO PERFORM AS EXPECTED AND
COMPETITION FOR ACQUISITIONS MAY RESULT IN INCREASED PRICES FOR PROPERTIES. The
Company intends to continue actively acquiring and developing community and
neighborhood shopping centers, other retail and commercial properties and
apartment communities. Newly acquired and newly developed properties may fail to
perform as expected. The Company's management may underestimate the costs
necessary to bring an acquired property up to standards established for its
intended market position. New developments are subject to a number of risks,
including construction delays, cost overruns, financing risks, failure to meet
expected occupancy and rent levels, delays in and the inability to obtain
zoning, occupancy and other governmental permits, and changes in zoning and land
use laws. These development risks may result in increased project costs and the
incurrence of costs for developments that are not pursued to completion.
Additionally, the Company expects that other major real estate investors with
significant capital will compete with it for attractive investment and
development opportunities. These competitors include publicly traded REITs,
private REITs, investment banking firms and private
6
<PAGE> 10
institutional investment funds. This competition has increased prices for the
types of properties in which the Company invests. The Company expects to
acquire and develop properties with cash from secured or unsecured financings
or from offerings of equity or debt. The Company may sometimes acquire
properties with partnership units from a partnership that it controls. The
Company may not be in a position or have the opportunity in the future to make
suitable property acquisitions or to develop properties on favorable terms.
BECAUSE REAL ESTATE PROPERTY INVESTMENTS ARE ILLIQUID, WE MAY NOT BE ABLE
TO SELL PROPERTIES WHEN APPROPRIATE. Real estate property investments generally
cannot be sold quickly. In addition, the federal tax code imposes restrictions
on a REIT's ability to dispose of properties. We may not be able to vary our
portfolio promptly in response to economic or other conditions. This inability
to respond promptly to changes in economic or other conditions could adversely
affect our financial condition and ability to service debt and pay dividends to
our stockholders.
SOME POTENTIAL LOSSES ARE NOT COVERED BY INSURANCE. We carry comprehensive
liability, fire, extended coverage and rental loss insurance on all of our
properties. We believe the policy specifications and insured limits of these
policies are adequate and appropriate. There are, however, certain types of
losses, such as lease and other contract claims, that generally are not insured.
Should an insured loss or a loss in excess of insured limits occur, we could
lose all or a portion of the capital we have invested in a property, as well as
the anticipated future revenue from the property. In such an event, we might
nevertheless remain obligated for any mortgage debt or other financial
obligations related to the property.
DEBT FINANCING, FINANCIAL COVENANTS, DEGREE OF LEVERAGE AND INCREASES IN
INTEREST RATES COULD ADVERSELY AFFECT OUR ECONOMIC PERFORMANCE
SCHEDULED DEBT PAYMENTS COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION.
Our business is subject to risks normally associated with debt financing. Cash
flow could be insufficient to pay expected dividends to our stockholders and
meet required payments of principal and interest. We may not be able to
refinance existing indebtedness (which in virtually all cases requires
substantial principal payments at maturity) and, even if we can, the terms of
such refinancing might not be as favorable as the terms of existing
indebtedness. The total principal amount of our outstanding indebtedness was
$1.1 billion as of September 30, 1998. If principal payments due at maturity
cannot be refinanced, extended or paid with proceeds of other capital
transactions, such as new equity capital, our cash flow will not be sufficient
in all years to repay all maturing debt. If prevailing interest rates or other
factors at the time of refinancing (such as the possible reluctance of lenders
to make commercial real estate loans) result in higher interest rates, increased
interest expense would adversely affect cash flow and our ability to service
debt and pay expected dividends to stockholders.
FINANCIAL COVENANTS COULD ADVERSELY AFFECT OUR FINANCIAL CONDITION. If a
property is mortgaged to secure payment of indebtedness and we are unable to
meet mortgage payments, the holder of the mortgage or lender could foreclose on
the property, resulting in loss of income and asset value. The mortgages on our
properties contain customary negative covenants which, among other things, limit
our ability, without the prior consent of the lender, to further mortgage the
property, to enter into new leases or materially modify existing leases, and to
discontinue insurance coverage. In addition, our credit facilities and the
indentures under which the Company's senior unsecured indebtedness is issued
contain certain financial and operating covenants, including, among other
things, certain coverage ratios, as well as limitations on the Company's ability
to incur secured and unsecured indebtedness, sell all or substantially all of
the Company's assets and engage in mergers and consolidations and certain
7
<PAGE> 11
acquisitions. Foreclosure on mortgaged properties or an inability to refinance
existing indebtedness would likely have a negative impact on our financial
condition and results of operations.
OUR DEGREE OF LEVERAGE COULD LIMIT OUR ABILITY TO OBTAIN ADDITIONAL
FINANCING. The Company's organizational documents do not contain any limitation
on the incurrence of indebtedness. The degree of leverage of the Company could
have important consequences, including affecting our ability to obtain
additional financing in the future for working capital, capital expenditures,
acquisitions, development or other general corporate purposes and making us more
vulnerable to a downturn in business or the economy generally.
THE COMPANY IS SUBJECT TO INTEREST RATE RISK. Increases in interest rates,
or the loss of the benefits of any hedging agreements of the Company, would
increase the Company's interest expense, which would adversely affect cash flow
and the Company's ability to service its debt and pay expected dividends to
stockholders. As of September 30, 1998, the Company had $125 million outstanding
under two unsecured revolving credit facilities under which advances bear
interest at floating interest rates. One is a $250 million credit facility that
expires on December 31, 1999; the other is a $50 million credit facility that
expires on January 31, 1999. As of September 30, 1998, the Company also had
approximately $170 million in floating rate notes and mortgages outstanding,
with $49 million maturing in August 1999, $40 million maturing in May 2000, $10
million maturing in August 2000 and approximately $71 million maturing in
various amounts not exceeding $10 million each on various dates from July 1999
to February 2013. The Company was not a party to any hedging agreements with
respect to its floating rate debt as of September 30, 1998. In the event of a
significant increase in interest rates, the Company would consider entering into
hedging agreements with respect to all or a portion of its floating rate debt.
Although hedging agreements would enable the Company to convert floating rate
liabilities to fixed rate liabilities, they would expose the Company to the risk
that the counterparties to such hedge agreements may not perform, which could
increase the Company's exposure to rising interest rates. Generally, however,
the counterparties to hedging agreements that the Company would enter into would
be major financial institutions. The Company may borrow additional money with
floating interest rates in the future. Increases in interest rates, or the loss
of the benefits of any hedging agreements that the Company may enter into in the
future, would increase the Company's interest expenses, which would adversely
affect cash flow and the ability of the Company to service its debt. If the
Company enters into any hedging agreements in the future, decreases in interest
rates thereafter would increase the Company's interest expenses as compared to
the underlying floating rate debt and could result in the Company making
payments to unwind such agreements.
THE ABILITY OF STOCKHOLDERS TO EFFECT CHANGES IN CONTROL OF THE COMPANY IS
LIMITED
PROVISIONS OF OUR CHARTER AND BYLAWS COULD INHIBIT CHANGES IN CONTROL.
Certain provisions of the Company's Charter and Bylaws may delay or prevent a
change in control of the Company or other transactions that could provide our
stockholders with a premium over the then-prevailing market price of their
common stock or that might otherwise be in the best interests of the
stockholders. These include a staggered Board of Directors, a stockholder rights
plan and the REIT share ownership limits described two paragraphs below. Also,
any future series of Preferred Stock may have certain voting provisions that
could delay or prevent a change of control or other transaction that might
involve a premium price or otherwise be in the best interests for our common or
other stockholders.
WE COULD ADOPT MARYLAND LAW LIMITATIONS ON CHANGES IN CONTROL. Certain
provisions of Maryland law applicable to REITs prohibit "business combinations"
(including certain issuances of
8
<PAGE> 12
equity securities) with any person who beneficially owns ten percent or more of
the voting power of outstanding shares, or with an affiliate of the REIT who,
at any time within the two-year period prior to the date in question, was the
beneficial owner of ten percent or more of the voting power of the outstanding
voting shares (a so-called "interested stockholder"), or with an affiliate of
an interested stockholder. These prohibitions last for five years after the
most recent date on which the interested stockholder became an interested
stockholder. After the five-year period, a business combination with an
interested stockholder must be approved by two super-majority stockholder votes
unless, among other conditions, the REIT's common stockholders receive a
minimum price for their shares and the consideration is received in cash or in
the same form as previously paid by the interested stockholder for its common
shares. The Board of Directors of the Company has opted out of these business
combination provisions. Consequently, the five-year prohibition and the
super-majority vote requirements will not apply to a business combination
involving the Company. The Board of Directors may, however, repeal this
election in most cases and cause the Company to become subject to these
provisions in the future.
WE HAVE A SHARE OWNERSHIP LIMIT. For the Company to continue to qualify as
a REIT under the federal tax code, not more than 50% of the value of the
outstanding shares of its stock may be owned, directly or indirectly, by five or
fewer individuals during the last half of a taxable year. To facilitate
maintenance of the Company's REIT qualification and for other strategic reasons,
the Company's Charter generally prohibits any person from acquiring or holding
shares of the Company's preferred and common stock in excess of 9.8% (by value
or by number of shares, whichever is more restrictive) of the outstanding shares
of each class or series of stock of the Company. The Company's Board of
Directors may exempt a person from this ownership limit under specified
conditions. Absent an exemption or a waiver, shares of stock that are
purportedly transferred in excess of the ownership limit will be automatically
transferred to a trust for the exclusive benefit of one or more charitable
beneficiaries, and the purported transferee will not acquire any rights in such
shares. See "Restrictions on Ownership of Capital Stock." This ownership limit
could delay or prevent a change in control of the Company and, therefore, could
adversely affect our common stockholders' ability to realize a premium over the
then-prevailing market price for their shares.
WE DO NOT CONTROL OUR DEVELOPMENT BUSINESS
To facilitate maintenance of our REIT qualification, we have an investment
in a noncontrolled company that is engaged in the real estate development
business. Although we own 95% of the economic interest in this company, its
voting stock is owned directly or indirectly by a private company controlled by
certain of our executive officers. We therefore do not control the timing or
amount of dividends or the management and operation of this company. As a
result, decisions relating to the declaration and payment of dividends and the
business policies and operations of this company could be adverse to our
interests or could lead to adverse financial results, which could adversely
affect our financial condition and results of operations.
CERTAIN DIRECTORS AND EXECUTIVE OFFICERS HAVE CONFLICTS OF INTEREST INVOLVING
EXCEL LEGACY CORPORATION
Certain of the Company's directors and officers continue to serve as
directors and executive officers of Excel Legacy Corporation, which Excel Realty
Trust spun off in March 1998. As of September 30, 1998, these individuals held
10,191,699 shares of common stock of Excel Legacy, which equaled approximately
30.5% of the currently outstanding shares, and held options to acquire another
3,100,000 shares. The Company and Excel Legacy are parties to agreements
providing for: (i) the orderly separation of the Company and Excel Legacy, which
is ongoing; (ii) the sharing of certain facilities and the provision of
management and administrative services to Excel Legacy by the Company;
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and (iii) the allocation of certain tax and other liabilities. Conflicts may
arise with respect to the operation and effect of these agreements and
relationships, which could have an adverse effect on the Company if not
properly resolved. In this regard, the certificate of incorporation of Excel
Legacy contains a specific purpose clause providing that Excel Legacy's purpose
includes complying with an intercompany agreement between the Company and Excel
Legacy as long as the agreement remains in effect. The agreement prohibits
Excel Legacy from investing in traditional community and neighborhood shopping
centers, power centers, malls or other conventional retail properties unless
the Company is first offered the opportunity to pursue such investments and
declines the opportunity.
ENVIRONMENTAL PROBLEMS ARE POSSIBLE AND CAN BE COSTLY
Federal, state and local laws and regulations relating to the protection
of the environment may require a current or previous owner or operator of real
estate to investigate and clean up hazardous or toxic substances or petroleum
product releases at such property. The owner or operator may have to pay a
governmental entity or third parties for property damage and for investigation
and clean-up costs incurred by such parties in connection with the
contamination. Such laws typically impose clean-up responsibility and liability
without regard to whether the owner or operator knew of or caused the presence
of contaminants. Even if more than one person may have been responsible for the
contamination, each person covered by the environmental laws may be held
responsible for all of the clean-up costs incurred. In addition, third parties
may sue the owner or operator of a site for damages and costs resulting from
environmental contamination emanating from that site.
Environmental laws also govern the presence, maintenance and removal of
asbestos. Such laws require that owners or operators of buildings containing
asbestos properly manage and maintain the asbestos, that they notify and train
those who may come into contact with asbestos and that they undertake special
precautions, including removal or other abatement, if asbestos would be
disturbed during renovation or demolition of a building. Such laws may impose
fines and penalties on building owners or operators who fail to comply with
these requirements and may allow third parties to seek recovery from owners or
operators for personal injury associated with exposure to asbestos fibers.
THE MARKET VALUE OF OUR PUBLICLY TRADED SECURITIES CAN BE ADVERSELY AFFECTED BY
A NUMBER OF FACTORS
CHANGES IN MARKET CONDITIONS COULD ADVERSELY AFFECT THE MARKET PRICE OF
OUR PUBLICLY TRADED SECURITIES. As with other publicly traded securities, the
value of our publicly traded securities depends on various market conditions,
which may change from time to time. Among the market conditions that may affect
the value of our publicly traded securities are the following: the extent of
institutional investor interest in the Company; the reputation of REITs
generally; the reputation of REITs with portfolios similar to the Company's; the
attractiveness of the securities of REITs in comparison to other securities
(including securities issued by other real estate companies); our financial
condition and performance; and general economic and financial market conditions.
OUR EARNINGS AND CASH DIVIDENDS WILL AFFECT THE MARKET PRICE OF OUR
PUBLICLY TRADED SECURITIES. We believe that the market value of a REIT's equity
securities is based primarily upon the market's perception of the REIT's growth
potential and its current and potential future cash dividends, and is
secondarily based upon the real estate market value of the underlying assets.
For that reason, the Company's common stock may trade at prices that are higher
or lower than the net asset value per share. To the extent we retain operating
cash flow for investment purposes, working capital reserves or other purposes,
these retained funds, while increasing the value of our underlying assets, may
not correspondingly increase the market price of our shares. Our failure to meet
the market's expectations
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with regard to future earnings and cash dividends likely would adversely affect
the market price of our publicly traded equity securities.
MARKET INTEREST RATES MAY HAVE AN EFFECT ON THE VALUE OF OUR PUBLICLY
TRADED SECURITIES. One of the factors that investors consider important in
deciding whether to buy or sell shares of a REIT is the dividend rate on such
shares (as a percentage of the price of such shares) relative to market interest
rates. If market interest rates go up, prospective purchasers of REIT shares may
expect a higher dividend rate. Higher interest rates would not, however, result
in more funds for us to distribute by way of dividends and, in fact, likely
would increase our borrowing costs and potentially decrease funds available for
dividends. Thus, higher market interest rates could cause the market price of
our publicly traded securities to go down.
WE ARE DEPENDENT ON EXTERNAL SOURCES OF CAPITAL
To qualify as a REIT, the Company must distribute to its stockholders each
year at least 95% of its REIT taxable income (excluding any net capital gain).
Because of these distribution requirements, we likely will not be able to fund
all future capital needs, including capital for acquisitions, with income from
operations. We therefore will have to rely on third-party sources of capital,
which may or may not be available on favorable terms or at all. Our access to
third-party sources of capital depends on a number of things, including the
market's perception of our growth potential and our current and potential future
earnings. Moreover, additional equity offerings may result in substantial
dilution of stockholders' interests, and additional debt financing may
substantially increase our leverage.
OUR CLASSIFICATION AS A REIT IS DEPENDENT ON COMPLIANCE WITH FEDERAL INCOME TAX
REQUIREMENTS
FAILURE OF THE COMPANY TO QUALIFY AS A REIT WOULD HAVE SERIOUS ADVERSE
CONSEQUENCES TO OUR STOCKHOLDERS. We believe that the Company's predecessor
companies, New Plan and Excel, qualified for taxation as REITs for federal
income tax purposes since their first elections to be taxed as REITs for the
years ended July 31, 1972 and December 31, 1987, respectively. We plan to
continue to operate the combined company so that it meets the requirements for
taxation as a REIT. Many of these requirements, however, are highly technical
and complex. The determination that the Company is a REIT requires an analysis
of various factual matters and circumstances that may not be totally within our
control. For example, to qualify as a REIT, at least 95% of our gross income
must come from certain sources that are itemized in the REIT tax laws. The
Company is also required to distribute to stockholders at least 95% of its REIT
taxable income (excluding capital gains). The fact that the Company holds
certain of its assets through partnerships and their subsidiaries further
complicates the application of the REIT requirements. Even a technical or
inadvertent mistake could jeopardize our REIT status. Furthermore, Congress and
the Internal Revenue Service might make changes to the tax laws and regulations,
and the courts might issue new rulings, that make it more difficult, or
impossible, for the Company to remain qualified as a REIT. We do not believe,
however, that any pending or proposed tax law changes would jeopardize our REIT
status.
If the Company fails to qualify as a REIT, the Company would be subject to
federal income tax at regular corporate rates. Also, unless the IRS granted the
Company relief under certain statutory provisions, the Company would remain
disqualified as a REIT for four years following the year the Company first
failed to qualify. If the Company failed to qualify as a REIT, the Company would
have to pay significant income taxes and would therefore have less money
available for investments, debt service and dividends to stockholders. This
likely would have a significant adverse affect on the value of our securities.
In addition, the Company would no longer be required to pay any dividends to
stockholders.
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WE COULD BE DISQUALIFIED AS A REIT OR HAVE TO PAY TAXES IF OUR PREDECESSOR
COMPANIES DID NOT QUALIFY AS REITS. If either New Plan or Excel, whose
businesses were combined in September 1998 to form the Company, failed to
qualify as a REIT throughout the duration of its existence, it might have had
undistributed "C corporation earnings and profits." If that were the case and
New Plan or Excel did not distribute such earnings and profits prior to
September 28, 1998, the Company might not qualify as a REIT. We believe that
each of New Plan and Excel qualified as a REIT and that, in any event, neither
New Plan nor Excel had any undistributed "C corporation earnings and profits" at
the time of their business combination. If either New Plan or Excel failed to
qualify as a REIT, it would have recognized taxable gain at the time of the
business combination (and the Company would be liable for the tax on such gain).
This would be the case even though the business combination qualified as a
"tax-free reorganization," unless the Company makes a special election that is
available under current law. The Company will make such an election with respect
to each of New Plan and Excel. This election will have the effect of requiring
the Company, if New Plan or Excel was not qualified as a REIT, to pay corporate
income tax on any gain existing at the time of the business combination on
assets acquired in the combination if such assets are sold within 10 years after
the combination. Finally, if either New Plan or Excel did not qualify as a REIT,
the Company could be precluded from electing REIT status for up to four years
after the year in which the predecessor company failed to qualify if the Company
were determined to be a "successor" to that predecessor company.
FAILURE TO OBTAIN YEAR 2000 COMPLIANCE MAY HAVE ADVERSE EFFECTS ON THE COMPANY
Many currently installed computer systems, software products, time clocks
and other similar devices of the Company are coded to accept only two digit
entries in the date code field. The Company needs to have these date code fields
upgraded or recoded to accept four digit entries to distinguish 21st century
dates from 20th century dates. Uncertainty exists concerning the potential
effects associated with compliance with such "Year 2000" requirements. In
addition, even if the Company's equipment is Year 2000 compliant, equipment used
by third parties having a material relationship with the Company (e.g.,
utilities, financial institutions, governmental agencies, municipalities and
major tenants) may not be Year 2000 compliant.
USE OF PROCEEDS
Unless otherwise described in the supplement to this prospectus used to
offer specific securities, the Company intends to use the net proceeds from the
sale of securities under this prospectus for general corporate purposes, which
may include the acquisition of community and neighborhood shopping centers or
other retail and commercial properties and apartment communities as suitable
opportunities arise, the expansion and improvement of certain properties in the
Company's portfolio, and the repayment of outstanding indebtedness.
<PAGE> 16
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general provisions of the
debt securities that may be offered by means of this prospectus. The particular
terms of the debt securities being offered and the extent to which the general
provisions described below apply will be described in a prospectus supplement
relating to the debt securities.
Any senior debt securities offered by means of this prospectus will be
issued under a senior debt securities indenture, as amended or supplemented from
time to time (the "Senior Debt Securities Indenture"), between the Company and
State Street Bank and Trust Company, as trustee. Subordinated debt securities
will be issued under a separate subordinated debt securities indenture, as
amended or supplemented from time to time (the "Subordinated Debt Securities
Indenture"), between the Company and a trustee to be selected by the Company.
The Senior Debt Securities Indenture and the Subordinated Debt Securities
Indenture are referred to herein individually as the "Indenture" and
collectively as the "Indentures." Separate forms of both Indentures have been
filed as exhibits to the Registration Statement of which this prospectus is a
part and will be available for inspection at the respective corporate trust
offices of the trustees or as described above under "Where to Find Additional
Information." The Indentures will be subject to and governed by the Trust
Indenture Act of 1939. The description of the Indentures set forth below assumes
that the Company has entered into both of the Indentures. The Company will
execute each Indenture when and if it issues securities under that Indenture.
The statements made hereunder relating to the Indentures and the debt securities
to be issued thereunder are summaries of certain provisions thereof and do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Indentures and such debt securities.
Unless otherwise specified, all section references appearing herein are to
sections of the Indentures, and capitalized terms used but not defined herein
have the meanings set forth in the Indentures.
GENERAL
The debt securities offered by means of this prospectus will be direct,
unsecured obligations of the Company, and may be guaranteed by New Plan Realty
Trust. See "-- Debt Guarantees" below. Senior debt securities will rank equally
with other senior unsecured and unsubordinated debt of the Company that may be
outstanding from time to time, and will rank senior to all subordinated debt
securities of the Company that may be outstanding from time to time.
Subordinated debt securities will be subordinated in right of payment to the
prior payment in full of the senior debt of the Company, as described under "--
Subordination" below.
Each Indenture provides that debt securities may be issued without limit
as to aggregate principal amount, in one or more series, in each case as
established from time to time in or pursuant to authority granted by a
resolution of the Board of Directors of the Company or as established in one or
more indentures supplemental to the Indenture. All debt securities of one series
need not be issued at the same time and, unless otherwise provided, a series may
be reopened, without the consent of the holders of the debt securities of such
series, for issuances of additional debt securities of such series (Section 301
of each Indenture).
Each Indenture provides that there may be more than one trustee
thereunder, each with respect to one or more series of debt securities. Any
trustee under either Indenture may resign or be removed with respect to one or
more series of debt securities, and a successor trustee will be appointed by the
Company, by or pursuant to a resolution adopted by the Board of Directors, to
act with respect to such
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series (Section 608 of each Indenture). In the event that two or more persons
are acting as trustee with respect to different series of debt securities, each
such trustee will be a trustee of a trust under the applicable Indenture
separate and apart from the trust administered by any other trustee thereunder,
and, except as otherwise indicated herein or therein, any action described to
be taken by the trustee may be taken by each such trustee with respect to, and
only with respect to, the one or more series of debt securities for which it is
trustee under the Indenture (Section 609 of each Indenture).
The supplement to this prospectus relating to the series of debt
securities being offered will contain information on the specific terms thereof,
including:
(1) the title of such debt securities;
(2) the classification of such debt securities as senior debt securities
or subordinated debt securities;
(3) the aggregate principal amount of such debt securities and any limit
on such aggregate principal amount;
(4) the percentage of the principal amount of such debt securities that
will be issued and, if other than the entire principal amount
thereof, the portion of the principal amount thereof payable upon
declaration of acceleration of the maturity thereof;
(5) the terms and conditions, if any, upon which such debt securities
may be convertible into other securities of the Company and the
terms and conditions upon which such conversion will be effected,
including, without limitation, whether such debt securities are
convertible into Common Stock or Preferred Stock, the initial
conversion price or rate (or manner of calculation thereof), the
portion that is convertible or the method by which any such portion
shall be determined, the conversion period, provisions as to whether
conversion will be at the option of the holders or the Company, the
events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of
such debt securities, and any applicable limitations on the
ownership or transferability of the Common Stock or Preferred Stock
into which such debt securities are convertible;
(6) the date or dates, or the method for determining such date or dates,
on which the principal of such debt securities will be payable;
(7) the rate or rates (which may be fixed or variable), or the method by
which such rate or rates shall be determined, at which such debt
securities will bear interest, if any;
(8) the date or dates, or the method for determining such date or dates,
from which any such interest will accrue, the date or dates on which
any such interest will be payable, the regular record dates for the
interest payment dates, or the method by which the regular record
dates are to be determined, the person to whom such interest will be
payable, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(9) the place or places where the principal of (and premium, if any) and
interest and Additional Amounts, if any, on such debt securities
will be payable, such debt securities may be surrendered for
conversion or registration of transfer or exchange and notices or
demands to
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or upon the Company in respect of such debt securities and the
applicable Indenture may be served;
(10) the date or dates on which, or period or periods within which, the
price or prices at which and the terms and conditions upon which
such debt securities may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have such an option;
(11) the obligation, if any, of the Company to redeem, repay or purchase
such debt securities pursuant to any sinking fund or analogous
provision or at the option of a holder thereof, and the date or
dates on which, or period or periods within which, the price or
prices at which and the terms and conditions upon which such debt
securities will be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(12) if other than U.S. dollars, the currency or currencies in which such
debt securities are denominated and payable, which may be a foreign
currency or units of two or more foreign currencies or a composite
currency or currencies, and the terms and conditions relating
thereto;
(13) whether the amount of payments of principal of (and premium, if any)
or interest, if any, on such debt securities may be determined with
reference to an index, formula or other method (which index, formula
or method may, but need not be, based on a currency, currencies,
currency unit or units or composite currency or currencies) and the
manner in which such amounts shall be determined;
(14) whether such debt securities will be issued in the form of one or
more global securities and whether such global securities are to be
issuable in a temporary global form or permanent global form;
(15) any additions to, modifications of or deletions from the terms of
such debt securities with respect to the events of default and
notice and waiver thereof or covenants set forth in the applicable
Indenture;
(16) whether the principal of (and premium, if any) or interest or
Additional Amounts, if any, on such debt securities are to be
payable, at the election of the Company or a holder, in one or more
currencies other than that in which such debt securities are
denominated or stated to be payable, the period or periods within
which, and the terms and conditions upon which, such election may be
made, and the time and manner of, and identity of the exchange rate
agent with responsibility for, determining the exchange rate between
the currency or currencies in which such debt securities are
denominated or stated to be payable and the currency or currencies
in which such debt securities are to be so payable;
(17) whether such debt securities will be issued in certificated or
book-entry form;
(18) whether such debt securities will be in registered or bearer form
and, if in registered form, the denominations thereof if other than
$1,000 and any integral multiple thereof and, if in bearer form, the
denominations thereof and terms and conditions relating thereto;
(19) the applicability, if any, of the defeasance and covenant defeasance
provisions of Article XIV of the applicable Indenture;
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(20) if such debt securities are to be issued upon the exercise of
warrants, the time, manner and place for such debt securities to be
authenticated and delivered;
(21) whether and under what circumstances the Company will pay Additional
Amounts as contemplated in the applicable Indenture on such debt
securities in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
debt securities in lieu of making such payment;
(22) the name of the applicable trustee and the address of its corporate
trust office;
(23) whether and to what extent such debt securities will be guaranteed;
and
(24) any other terms of such debt securities not inconsistent with the
provisions of the applicable Indenture (Section 301).
Debt securities offered by means of this prospectus may be original issue
discount securities, in that they provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof. If they are original issue discount securities, the special U.S.
federal income tax, accounting and other considerations applicable to such
securities will be described in the applicable prospectus supplement.
Except as set forth under "Certain Covenants -- Senior Debt Securities
Indenture Limitations on Incurrence of Debt" below, neither Indenture contains
any other provisions that would limit the ability of the Company to incur
indebtedness or that would afford holders of debt securities protection in the
event of a highly leveraged or similar transaction involving the Company or in
the event of a change of control. However, restrictions on ownership and
transfers of the Company's Common Stock and Preferred Stock designed to preserve
its status as a REIT may act to prevent or hinder a change of control. See
"Description of Common Stock" and "Description of Preferred Stock."
A significant number of the Company's properties are owned through
subsidiaries. The rights of the Company and its creditors, including holders of
debt securities offered by means of this prospectus, to participate in the
assets of such subsidiaries upon the liquidation or recapitalization of such
subsidiaries or otherwise will be subject to the prior claims of such
subsidiaries' respective secured and unsecured creditors (except to the extent
that claims of the Company itself as a creditor may be recognized).
DENOMINATIONS, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable prospectus supplement, the
debt securities of any series offered by means of this prospectus will be
issuable in denominations of $1,000 and integral multiples thereof and those in
bearer form will be issuable in denominations of $5,000 (Section 302 of each
Indenture).
Unless otherwise specified in the applicable prospectus supplement, the
principal of (and premium, if any) and interest and any Additional Amounts on
any series of debt securities offered by means of this prospectus will be
payable at the corporate trust office of the applicable trustee or an office or
agency established by the Company in accordance with the Indenture, provided
that, at the option of the Company, payment of interest may be made by check
mailed to the address of the person entitled
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thereto as it appears in the security register for the relevant debt securities
or by wire transfer of funds to such person at an account maintained within the
United States (Sections 301, 305, 306, 307 and 1002 of each Indenture).
Any interest not punctually paid or duly provided for on any interest
payment date with respect to a debt security offered by means of this prospectus
("Defaulted Interest") will forthwith cease to be payable to the holder on the
applicable regular record date and may either be paid to the person in whose
name such debt security is registered at the close of business on a special
record date (the "Special Record Date") for the payment of such Defaulted
Interest to be fixed by the applicable trustee, notice whereof shall be given to
the holder of such debt security not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
completely described in the applicable Indenture (Section 307 of each
Indenture).
Subject to certain limitations imposed upon debt securities issued in
book-entry form, the debt securities of any series offered by means of this
prospectus will be exchangeable for other debt securities of the same series and
of a like aggregate principal amount and tenor of different authorized
denominations upon surrender of such debt securities at the corporate trust
office of the applicable trustee or at an office or agency established by the
Company in accordance with the Indenture. In addition, subject to certain
limitations imposed upon debt securities issued in book-entry form, the debt
securities of any series offered by means of this prospectus may be surrendered
for conversion or registration of transfer or exchange thereof at the corporate
trust office of the trustee referred to above. Every debt security surrendered
for conversion, registration of transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer. No service charge will be made
for any registration of transfer or exchange of any debt securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith (Section 305 of each
Indenture). If the applicable prospectus supplement refers to any transfer agent
(in addition to the trustee) initially designated by the Company with respect to
any series of debt securities, the Company may at any time rescind the
designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that the Company will be
required to maintain a transfer agent in each place of payment for such series.
The Company may at any time designate additional transfer agents with respect to
any series of debt securities offered by means of this prospectus (Section
1002).
Neither the Company nor the trustee for any series of debt securities
offered by means of this prospectus will be required to (i) issue, register the
transfer of or exchange debt securities of any series during a period beginning
at the opening of business 15 days before any selection of debt securities of
that series to be redeemed and ending at the close of business on the day of
mailing of the relevant notice of redemption; (ii) register the transfer of or
exchange any debt security, or portion thereof, called for redemption, except
the unredeemed portion of any debt security being redeemed in part; or (iii)
issue, register the transfer of or exchange any debt security which has been
surrendered for repayment at the option of the holder, except the portion, if
any, of such debt security not to be so repaid (Section 305 of each Indenture).
CERTAIN COVENANTS
SENIOR DEBT SECURITIES INDENTURE LIMITATIONS ON INCURRENCE OF DEBT. Under
the Senior Debt Securities Indenture, the Company will not, and will not permit
any subsidiary to, incur any Debt (as defined in the Indenture and described
below) other than intercompany debt if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds thereof,
the aggregate
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principal amount of all outstanding Debt of the Company and its subsidiaries on
a consolidated basis determined in accordance with generally accepted
accounting principles is greater than 65% of the sum of (i) the Company's Total
Assets (as defined in the Indenture and described below) 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
Securities and Exchange Commission (or, if such filing is not permitted under
the Exchange Act, with the trustee) prior to the incurrence of such additional
Debt, and (ii) the increase in the Company's Total Assets from the end of such
quarter including, without limitation, any increase resulting from the
incurrence of such additional Debt (such increase, together with the Company's
Total Assets, being referred to as "Adjusted Total Assets" herein) (Section
1004 of the Senior Debt Securities Indenture).
In addition to the foregoing limitations on the incurrence of Debt, the
Company will not, and will not permit any subsidiary to, incur any Secured Debt
if, immediately after giving effect to the incurrence of such additional Secured
Debt and the application of the proceeds thereof, the aggregate principal amount
of all outstanding Secured Debt of the Company and its subsidiaries on a
consolidated basis is greater than 40% of Adjusted Total Assets (Section 1004 of
the Senior Debt Securities Indenture).
In addition to the foregoing limitations on the incurrence of Debt, the
Company will not, and will not permit any subsidiary to, incur any Debt other
than intercompany debt if Consolidated Income Available for Debt Service (as
defined in the Indenture and described below) for any 12 consecutive calendar
months within the 15 calendar months immediately preceding the date on which
such additional Debt is to be incurred would have been less than 1.5 times the
Maximum Annual Service Charge (as defined in the Indenture and described below)
on the Debt of the Company and all subsidiaries to be outstanding immediately
after the incurrence of such additional Debt. In determining whether that limit
would be exceeded, the Senior Debt Securities Indenture requires that
calculations be made on a pro forma basis, assuming that debt incurred, repaid,
retired or acquired, and that increases or decreases in Total Assets, occurred
at the beginning of the 12-month period (Section 1004 of the Senior Debt
Securities Indenture).
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 not Secured Debt
(Section 1004 of the Senior Debt Securities Indenture).
As used herein,
"Consolidated Income Available for Debt Service" for any period means
Consolidated Net Income (as defined in the Indenture and described below) 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, (e) the effect of any
noncash charge resulting from a change in accounting principles in determining
Consolidated Net Income for such period, (f) provisions for losses from sales or
joint ventures, (g) increases in deferred taxes and other non-cash items, and
(h) charges for early extinguishment of debt, and less amounts which have been
added in determining Consolidated Net Income for such period for (i) provisions
for gains from sales or joint ventures and (ii) decreases in deferred taxes and
other non-cash items.
"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 generally accepted
accounting principles.
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"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) reimbursement obligations, contingent or otherwise, in connection with
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 generally accepted
accounting principles, in the case of items of indebtedness under (i) through
(iii) above to the extent that any such items (other than reimbursement
obligations in connection with letters of credit) would appear as a liability on
the Company's consolidated balance sheet in accordance with generally accepted
accounting principles, 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) (it being understood that Debt shall be deemed to be
incurred by the Company or any subsidiary whenever the Company or such
subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof).
"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.
"Secured Debt" means, without duplication, Debt that is secured by a
mortgage, trust deed, deed of trust, deed to secure Debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a security
interest in real property or other tangible asset(s).
"Total Assets" as of any date means the sum of (i) Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its subsidiaries
determined on a consolidated basis in accordance with generally accepted
accounting principles (but excluding accounts receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means 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 generally accepted accounting principles.
"Unencumbered Total Asset Value" as of any date means the sum of Total
Assets which are unencumbered by any mortgage, lien, charge, pledge or security
interest.
These covenants may not apply to any issuance of Subordinated Debt
Securities.
EXISTENCE. Except as described under "-- Merger, Consolidation or Sale of
Assets" below, the Company is required to do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence
and franchises; provided, however, that the Company is not obligated to preserve
any right or franchise if it determines that the preservation thereof is no
longer desirable in the
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conduct of its business and that the loss thereof is not disadvantageous in any
material respect to the holders of the debt securities issued under the
Indenture (Section 1005 of each Indenture).
MAINTENANCE OF PROPERTIES. The Company will cause all of its material
properties used or useful in the conduct of its business or the business of any
subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times (Section 1006 of each Indenture).
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 in commercially reasonable amounts
and types. (Section 1007 of each Indenture).
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, (i) all
material 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 (ii) all material 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
effort 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 1008 of each
Indenture).
PROVISION OF FINANCIAL INFORMATION. If the Company is required to file
reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act, the
Company will file such reports by the required date and, within 15 days of such
date, deliver copies of all such reports to the trustees for and transmit a copy
to each holder of debt securities offered by means of this prospectus. If the
Company is not required to file reports with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, the Company will deliver to the applicable trustee
and transmit to each holder of debt securities offered by means of this
prospectus reports that contain substantially the same kind of information that
would have been included in reports filed with the SEC had the Company been
required to file such reports, such information to be delivered or transmitted
within 15 days after the same would have been filed with the SEC had the Company
been required to file such reports; provided, that if the debt securities
offered by means of this prospectus are guaranteed by an entity that (i) is the
holder, directly or indirectly, of all of the outstanding capital stock of the
Company, and (ii) is required to file reports with the SEC pursuant to Section
13 or 15(d) of the Exchange Act, the delivery to the applicable trustee and
transmittal to the holders of debt securities offered by means of this
prospectus of the reports filed with the SEC by such entity shall be deemed to
satisfy the Company's obligations to provide financial information to the
holders of such debt securities under the applicable Indenture.
ADDITIONAL COVENANTS. Any additional material covenants of the Company or
any guarantor contained in an Indenture for a series of debt securities offered
by means of this prospectus, or any deletions from or modifications of the
covenants described above, will be described in the prospectus supplement
relating thereto.
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<PAGE> 24
MERGER, CONSOLIDATION OR SALE
The Company may merge with or into, consolidate with, or sell, lease or
convey all or substantially all of its assets to, any other corporation, limited
partnership, limited liability company, company, real estate investment trust or
business trust, provided that (a) either the Company shall be the continuing
corporation or other entity, or the successor corporation or other entity (if
other than the Company) formed by or resulting from any such merger or
consolidation or which shall have received the transfer of such assets shall
expressly assume payment of the principal of (and premium, if any) and interest
on all of the debt securities issued under the Indentures and the due and
punctual performance and observance of all of the covenants and conditions
contained in the Indentures; (b) immediately after giving effect to such
transaction and treating any indebtedness that 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
under the Indentures, and no event that, after notice or the lapse of time, or
both, would become such an event of default, shall have occurred and be
continuing; and (c) an officer's certificate and legal opinion covering such
conditions shall be delivered to the trustees (Sections 801 and 803 of each
Indenture).
DEBT GUARANTEES
In order to enable the Company to obtain more favorable terms and
conditions with respect to debt securities offered by means of this prospectus,
such securities may be guaranteed by New Plan Realty Trust, a Massachusetts
business trust and wholly owned subsidiary of the Company. The guarantee will be
an unsecured obligation of the guarantor. A description of the terms of any
guarantee of debt securities offered by means of this prospectus and of the
ranking and subordination of such guarantee will be set forth in the applicable
prospectus supplement.
The Indenture will provide that, in the event any guarantee of debt
securities would constitute a fraudulent transfer or conveyance, the liability
of the guarantor under such guarantee will be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
guarantor and to all collections from or payments made by or on behalf of any
other guarantor in respect of obligations of such guarantor under such
guarantee, result in the obligations of such guarantor under such guarantee not
constituting a fraudulent transfer or conveyance.
New Plan Realty Trust is a separate and distinct legal entity from the
Company with no obligation, contingent or otherwise, to pay any amounts due
pursuant to debt securities issued under the Indenture or to make any funds
available therefor, whether by dividends, loans or other payments, other than as
expressly provided in a guarantee. The payment of dividends or the making of
loans and advances to the Company by the Trust may be subject to contractual,
statutory or regulatory restrictions, which, if material, would be disclosed in
the prospectus supplement for guaranteed debt securities. Moreover, the payment
of dividends and making of loans and advances would be contingent upon the
earnings of the Trust. Any right of the Company to receive assets of the the
Trust upon liquidation or recapitalization of the Trust (and the consequent
right of the holders of the guaranteed debt securities to participate in those
assets) would be subject to any security interest in the assets of the Trust and
any indebtedness of the Trust senior to that of the guarantee in question. In
the event that the Company is recognized as a creditor of the Trust, claims
under a guarantee of the Trust would still be subject to any security interest
in the assets of the Trust and any indebtedness of the Trust senior to that of
the guarantee, and would be dependent primarily upon the receipt of funds from
the Trust.
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EVENTS OF DEFAULT, NOTICE AND WAIVER
Each Indenture provides that the following events are "Events of Default"
with respect to any series of debt securities issued thereunder: (a) default for
30 days in the payment of any installment of interest or Additional Amounts on
any debt security of such series; (b) default in the payment of the principal of
(or premium, if any, on) any debt security of such series when due; (c) default
in making any sinking fund payment as required for any debt security of such
series; (d) default in the performance of any other covenant of the Company or a
guarantor contained in the applicable Indenture (other than a covenant added to
such Indenture solely for the benefit of a series of debt securities issued
thereunder other than such series), continued for 60 days after written notice
as provided in such Indenture; (e) a default in the payment of recourse
indebtedness of the Company which results in such indebtedness in an aggregate
principal amount exceeding $5,000,000 becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable, but
only if such indebtedness is not discharged or such acceleration is not
rescinded or annulled within a specified period of time; (f) certain events of
bankruptcy, insolvency or reorganization, or court appointment of a receiver,
liquidator or trustee of the Company, any Significant Subsidiary or the property
of the Company or any Significant Subsidiary; and (g) a guarantee ceases to be
in full force and effect or enforceable in accordance with its terms; and (h)
any other Event of Default provided with respect to a particular series of debt
securities (Section 501 of each Indenture). The term "Significant Subsidiary"
means each significant subsidiary of the Company as defined in Regulation S-X
promulgated under the Securities Act. The prospectus supplement relating to a
particular series of debt securities may contain information relating to
deletions from, modifications of or additions to this list of events of default.
If an Event of Default under either Indenture with respect to debt
securities of any series offered by means of this prospectus at the time
outstanding occurs and is continuing, then in every such case the trustee or the
holders of not less than 25% in principal amount of the outstanding debt
securities of that series may declare the principal amount (or, if the debt
securities of that series are original issue discount securities, such portion
of the principal amount as may be specified in the terms thereof) of all of the
outstanding debt securities of that series to be due and payable immediately by
written notice thereof to the Company (and to the applicable trustee if given by
the holders). However, at any time after such a declaration of acceleration with
respect to debt securities of such series (or of all debt securities then
outstanding under the applicable Indenture, as the case may be) has been made,
but before a judgment or decree for payment of the money due has been obtained
by the applicable trustee, the holders of not less than a majority in principal
amount of outstanding debt securities of such series (or of all debt securities
then outstanding under the applicable Indenture, as the case may be) may rescind
and annul such declaration and its consequences if (a) the Company shall have
deposited with the applicable trustee all required payments of the principal of
(and premium, if any) and interest, and any Additional Amounts, on the debt
securities of such series (or of all debt securities then outstanding under the
applicable Indenture, as the case may be), plus certain fees, expenses,
disbursements and advances of the trustee and (b) all Events of Default, other
than the non-payment of accelerated principal (or specified portion thereof),
with respect to debt securities of such series (or of all debt securities then
outstanding under the applicable Indenture, as the case may be) have been cured
or waived as provided in the applicable Indenture (Section 502 of each
Indenture). Each Indenture also provides that the holders of not less than a
majority in principal amount of the outstanding debt securities of any series
(or of all debt securities then outstanding under the applicable Indenture, as
the case may be) may waive any past default with respect to such series and its
consequences, except a default (x) in the payment of the principal of (or
premium, if any) or interest or Additional Amounts on any debt security of such
series or (y) in respect of a covenant or provision contained in the applicable
Indenture that cannot be modified or amended
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without the consent of the holders of all outstanding debt securities affected
thereby (Section 513 of each Indenture).
Each trustee is required to give notice to the holders of debt securities
within 90 days of a default under the applicable Indenture; provided, however,
that the trustee may withhold notice to the holders of any series of debt
securities of any default with respect to such series (except a default in the
payment of the principal of (or premium, if any) or interest payable on any debt
security of such series or in the payment of any sinking fund installment in
respect of any debt security of such series) if specified responsible officers
of the trustee consider such withholding to be in the interest of such holders
(Section 601 of each Indenture).
Each Indenture provides that no holders of debt securities of any series
offered by means of this prospectus may institute any proceedings, judicial or
otherwise, with respect to the applicable Indenture or for any remedy
thereunder, except in the case of failure of the trustee thereunder, for 60
days, to act after it has received a written request to institute proceedings in
respect of an Event of Default from the holders of not less than 25% in
principal amount of the outstanding debt securities of such series, as well as
an offer of indemnity reasonably satisfactory to it (Section 507 of each
Indenture). This provision will not prevent, however, any holder of such debt
securities from instituting suit for the enforcement of payment of the principal
of (and premium, if any) and interest on, and any Additional Amounts payable
with respect to, such debt securities at the respective due dates thereof
(Section 508 of each Indenture).
Subject to provisions in each Indenture relating to its duties in case of
default, each trustee is under no obligation to exercise any of its rights or
powers under the applicable Indenture at the request or direction of any holders
of any series of debt securities offered by means of this prospectus then
outstanding under such Indenture, unless such holders shall have offered to the
applicable trustee reasonable security or indemnity (Section 602 of each
Indenture). The holders of not less than a majority in principal amount of the
applicable outstanding debt securities of any series (or of all debt securities
then outstanding under the applicable Indenture, as the case may be) shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the trustee, or of exercising any trust or power
conferred upon the trustee. However, the trustee may refuse to follow any
direction which is in conflict with any law or the applicable Indenture, which
may involve the trustee in personal liability or which may be unduly prejudicial
to the holders of debt securities of such series not joining therein (Section
512 of each Indenture).
Within 120 days after the close of each fiscal year, the Company must
deliver to each trustee a certificate, signed by one of several specified
officers, as to his or her knowledge of the Company's compliance with all
conditions and covenants of the applicable Indenture and, in the event of any
noncompliance, specifying such noncompliance and the nature and status thereof
(Section 1010 of each Indenture).
MODIFICATION OF THE INDENTURES
Modifications and amendments of each Indenture may be made with the
consent of the holders of not less than a majority in principal amount of all
debt securities outstanding under the Indenture which are affected by such
modification or amendment; provided, however, that no such modification or
amendment may, without the consent of the holder of each such debt security
affected thereby, (a) change the stated maturity of the principal of (or
premium, if any), or any installment of principal of or interest on, any such
debt security; (b) reduce the principal amount of, or the rate or amount of
interest on, or any Additional Amounts payable in respect of, or any premium
payable on redemption of, or
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change any obligation of the Company to pay any Additional Amounts set forth in
the Indenture relating to, any such debt security, or reduce the amount of
principal of an original issue discount security or indexed security that would
be due and payable upon declaration of acceleration of the maturity thereof or
would be provable in bankruptcy, or adversely affect any right of repayment of
the holder of any such debt security; (c) change the place of payment, or the
coin or currency, for payment of principal of, or premium, if any, or interest
on, or any Additional Amounts payable with respect to any such debt security;
(d) impair the right to institute suit for the enforcement of any payment on or
with respect to any such debt security; (e) reduce the above-stated percentage
of outstanding debt securities of any series necessary to modify or amend the
applicable Indenture, to waive compliance with certain provisions thereof or
certain defaults and consequences thereunder or to reduce the quorum or voting
requirements set forth in such Indenture; (f) release any guarantor of such
security from its guarantee; or (g) modify any of the foregoing provisions or
any of the provisions relating to the waiver of certain past defaults or
certain covenants, except to increase the required percentage to effect such
action or to provide that certain other provisions may not be modified or
waived without the consent of the holder of such debt security (Section 902 of
each Indenture).
The holders of not less than a majority in principal amount of debt
securities outstanding under either Indenture have the right to waive compliance
by the Company with certain covenants in the applicable Indenture (Section 1012
of each Indenture).
Modifications and amendments of each Indenture may be made by the Company
and the applicable trustee without the consent of any holder of debt securities
issued thereunder for any of the following purposes: (i) to evidence the
succession of another person to the Company as obligor under the applicable
Indenture; (ii) to add to the covenants of the Company for the benefit of the
holders of all or any series of debt securities or to surrender any right or
power conferred upon the Company in the Indenture; (iii) to add Events of
Default for the benefit of the holders of all or any series of debt securities;
(iv) to add or change any provisions of the applicable Indenture to facilitate
the issuance of, or to liberalize certain terms of, debt securities in bearer
form, or to permit or facilitate the issuance of debt securities in
uncertificated form, provided that such action shall not adversely affect the
interests of the holders of the debt securities of any series in any material
respect; (v) to change or eliminate any provisions of the applicable Indenture,
provided that any such change or elimination shall become effective only when
there are no debt securities outstanding of any series issued thereunder created
prior thereto which are entitled to the benefit of such provision; (vi) to
secure the debt securities or provide a guarantee of the securities; (vii) to
establish the form or terms of debt securities of any series, including the
provisions and procedures, if applicable, for the conversion of such debt
securities into Common Stock or Preferred Stock of the Company; (viii) to
provide for the acceptance of appointment by a successor trustee or facilitate
the administration of the trusts under the applicable Indenture by more than one
trustee; (ix) to cure any ambiguity, defect or inconsistency in the applicable
Indenture; or (x) to supplement any of the provisions of the applicable
Indenture to the extent necessary to permit or facilitate defeasance and
discharge of any series of such debt securities, provided that such action will
not adversely affect the interests of the holders of the debt securities of any
series in any material respect (Section 901 of each Indenture).
Each Indenture provides that in determining whether the holders of the
requisite principal amount of outstanding debt securities of a series have given
any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of holders of debt
securities, (i) the principal amount of an original issue discount security that
will be deemed to be outstanding will be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
declaration of acceleration of the maturity thereof, (ii) the principal amount
of a
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debt security denominated in a foreign currency that will be deemed outstanding
will be the U.S. dollar equivalent, determined on the issue date for such debt
security, of the principal amount (or, in the case of an original issue
discount security, the U.S. dollar equivalent on the issue date of such debt
security of the amount determined as provided in (i) above), (iii) the
principal amount of an indexed security that will be deemed outstanding will be
the principal amount of such indexed security on the issue date, unless
otherwise provided with respect to such indexed security pursuant to Section
301 of the applicable Indenture, and (iv) debt securities owned by the Company
or any other obligor upon the debt securities or any Affiliate of the Company
or of such other obligor will be disregarded (Section 101 of each Indenture).
Each Indenture contains provisions for convening meetings of the holders
of debt securities of a series (Section 1501 of each Indenture). A meeting may
be called by the trustee, by the Company, pursuant to a resolution adopted by
its Board of Directors, or by the holders of not less than 10% in principal
amount of the outstanding debt securities of such series, in any such case upon
satisfaction of any conditions and upon notice given as provided in the
applicable Indenture (Section 1502 of each Indenture). Except for any consent
that must be given by the holder of each debt security affected by certain
modifications and amendments of the applicable Indenture, any resolution
presented at a meeting or adjourned meeting duly reconvened at which a quorum is
present may be adopted by the affirmative vote of the holders of a majority in
principal amount of the outstanding debt securities of that series; provided,
however, that, except as referred to above, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that may be made, given or taken by the holders of a specified
percentage, which is less than a majority, in principal amount of the
outstanding debt securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the holders of such specified percentage in principal amount of the outstanding
debt securities of that series. Any resolution passed or decision taken at any
meeting of holders of debt securities of any series duly held in accordance with
the Indenture will be binding on all holders of debt securities of that series.
The quorum at any meeting called to adopt a resolution, and at any reconvened
meeting, will be persons holding or representing a majority in principal amount
of the outstanding debt securities of a series; provided, however, that if any
action is to be taken at such meeting with respect to a consent or waiver which
may be given by the holders of not less than a specified percentage in principal
amount of the outstanding debt securities of a series, the persons holding or
representing such specified percentage in principal amount of the outstanding
debt securities of such series will constitute a quorum (Section 1504 of each
Indenture).
Notwithstanding the provisions described above, if any action is to be
taken at a meeting of holders of debt securities of any series with respect to
any request, demand, authorization, direction, notice, consent, waiver or other
action that the applicable Indenture expressly provides may be made, given or
taken by the holders of a specified percentage in principal amount of all
outstanding debt securities affected thereby, or of the holders of such series
and one or more additional series: (i) there shall be no minimum quorum
requirement for such meeting and (ii) the principal amount of the outstanding
debt securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action shall be taken
into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken
under the applicable Indenture (Section 1504 of each Indenture).
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge certain obligations to holders of any series of
debt securities that have not already been delivered to the trustee for
cancellation and that either have become due and
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payable or will become due and payable within one year (or scheduled for
redemption within one year) by irrevocably depositing with the applicable
trustee, in trust, funds in such currency or currencies, currency unit or units
or composite currency or currencies in which such debt securities are payable
in an amount sufficient to pay the entire indebtedness on such debt securities
in respect of principal (and premium, if any) and interest and Additional
Amounts payable to the date of such deposit (if such debt securities have
become due and payable) or to the stated maturity or date of redemption or
repayment, as the case may be (Section 401 of each Indenture).
Each Indenture provides that, if the provisions of Article XIV of such
Indenture are made applicable to the debt securities of or within any series
pursuant to Section 301 of such Indenture, the Company may elect either (a) to
defease and be discharged from any and all obligations with respect to such debt
securities (except for the obligation to pay Additional Amounts, if any, upon
the occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such debt securities and the obligations to register the
transfer or exchange of such debt securities, to replace temporary or mutilated,
destroyed, lost or stolen debt securities, to maintain an office or agency in
respect of such debt securities and to hold moneys for payment in trust)
("defeasance") (Section 1402 of each Indenture) or (b) to be released from its
obligations with respect to such debt securities under Sections 1004 to 1009,
inclusive, of the applicable Indenture (being the restrictions described under
"-- Certain Covenants" above) or, if provided pursuant to Section 301 of such
Indenture, its obligations with respect to any other covenant, and any omission
to comply with such obligations will not constitute a default or an Event of
Default with respect to such debt securities ("covenant defeasance") (Section
1403 of each Indenture), in either case upon the irrevocable deposit by the
Company with the applicable trustee, in trust, of an amount, in such currency or
currencies, currency unit or units or composite currency or currencies in which
such debt securities are payable at stated maturity, or Government Obligations
(as defined in the Indenture and described below), or both, applicable to such
debt securities which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on such debt securities, and
any mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor (Section 1404 of each Indenture).
Such a trust may be established only if, among other things, the Company
has delivered to the applicable trustee an opinion of counsel (as specified in
the applicable Indenture) to the effect that the holders of such debt securities
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such defeasance or covenant defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance or covenant defeasance had not
occurred (Section 1404 of each Indenture).
"Government Obligations" means securities which are (i) direct obligations
of the United States of America or the government which issued the foreign
currency in which the debt securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a person controlled or supervised by and acting as an agency or instrumentality
of the United States or such government which issued the foreign currency in
which the debt securities of such series are payable, the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States or such other government, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and will 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
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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 (Section 101 of each Indenture).
Unless otherwise provided in the applicable prospectus supplement, if
after the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to debt securities of any series,
(a) the holder of a debt security of such series is entitled to, and does, elect
pursuant to Section 301 of the applicable Indenture or the terms of such debt
security to receive payment in a currency, currency unit or composite currency
other than that in which such deposit has been made in respect of such debt
security, or (b) a Conversion Event (as defined in the Indenture and described
below) occurs in respect of the currency, currency unit or composite currency in
which such deposit has been made, the indebtedness represented by such debt
security shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest on such debt security as they become due out of the proceeds yielded by
converting the amount so deposited in respect of such debt security into the
currency, currency unit or composite currency in which such debt security
becomes payable as a result of such election or such cessation of usage based on
the applicable market exchange rate (Section 1405 of each Indenture).
"Conversion Event" means the cessation of use of (i) a currency, currency unit
or composite currency both by the government of the country which issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit or composite currency other than the ECU for the
purposes for which it was established (Section 101 of each Indenture). Unless
otherwise provided in the applicable prospectus supplement, all payments of
principal of (and premium, if any) and interest on any debt security that is
payable in a foreign currency that ceases to be used by its government of
issuance shall be made in U.S. dollars.
In the event the Company effects covenant defeasance with respect to any
debt securities and such debt securities are declared due and payable because of
the occurrence of any Event of Default other than the Event of Default described
in clause (d) under "Events of Default, Notice and Waiver" with respect to
Sections 1004 to 1009, inclusive, of the applicable Indenture (which Sections
would no longer be applicable to such debt securities) or described in clause
(g) under "Events of Default, Notice and Waiver" with respect to any other
covenant as to which there has been covenant defeasance, the amount in such
currency, currency unit or composite currency in which such debt securities are
payable, and Government Obligations on deposit with the applicable trustee, will
be sufficient to pay amounts due on such debt securities at the time of their
stated maturity but may not be sufficient to pay amounts due on such debt
securities at the time of the acceleration resulting from such Event of Default.
However, the Company would remain liable to make payment of such amounts due at
the time of acceleration.
The applicable prospectus supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any
modifications to the provisions described above, with respect to the debt
securities of or within a particular series.
SUBORDINATION
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of and interest on
the subordinated debt securities will be subordinated to the extent provided in
the Subordinated Debt Securities Indenture in right of payment to the prior
payment in full of all Senior Debt (as defined in the Subordinated Debt
Securities Indenture and
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described below) (Sections 1701 and 1702 of the Subordinated Debt Securities
Indenture), but the obligation of the Company to make payment of the principal
of and interest on the subordinated debt securities will not otherwise be
affected (Section 1708 of the Subordinated Debt Securities Indenture). No
payment of principal or interest may be made on the subordinated debt
securities at any time if a default on Senior Debt exists that permits the
holders of such Senior Debt to accelerate its maturity and the default is the
subject of judicial proceedings or the Company receives notice of the default
(Section 1703 of the Subordinated Debt Securities Indenture). After all Senior
Debt is paid in full and until the subordinated debt securities are paid in
full, holders will be subrogated to the rights of holders of Senior Debt to the
extent that distributions otherwise payable to holders have been applied to the
payment of Senior Debt (Section 1707 of the Subordinated Debt Securities
Indenture). By reason of such subordination, in the event of a distribution of
assets upon insolvency, certain general creditors of the Company may recover
more, ratably, than holders of the subordinated debt securities.
Senior Debt is defined in the Subordinated Debt Securities Indenture as
the principal of and interest on, or substantially similar payments to be made
by the Company in respect of, the following, whether outstanding at the date of
execution of the Subordinated Debt Securities Indenture or thereafter incurred,
created or assumed: (a) indebtedness of the Company for money borrowed or
represented by purchase-money obligations, (b) indebtedness of the Company
evidenced by notes, debentures, or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument, (c)
obligations of the Company as lessee under leases of property either made as
part of any sale and leaseback transaction to which the Company is a party or
otherwise, (d) indebtedness of partnerships and joint ventures that is included
in the consolidated financial statements of the Company, (e) indebtedness,
obligations and liabilities of others in respect of which the Company is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Company has agreed to purchase or otherwise
acquire, and (f) any binding commitment of the Company to fund any real estate
investment or to fund any investment in any entity making such real estate
investment, in each case other than (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the subordinated debt securities or ranks
pari passu with the subordinated debt securities, (2) any such indebtedness,
obligation or liability which is subordinated to indebtedness of the Company to
substantially the same extent as or to a greater extent than the subordinated
debt securities are subordinated, (3) any trade accounts payable and (4) the
subordinated debt securities (Section 101 of the Subordinated Debt Securities
Indenture). There are no restrictions in the Subordinated Debt Securities
Indenture upon the creation of additional Senior Debt. However, the Senior Debt
Securities Indenture contains limitations on incurrence of indebtedness by the
Company. See "-- Certain Covenants -- Senior Debt Securities Indenture
Limitations on Incurrence of Debt."
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DESCRIPTION OF COMMON STOCK
The Company has the authority to issue up to 250,000,000 shares of common
stock, par value $.01 per share (the "Common Stock"). On September 30, 1998, the
Company had 88,237,163 shares of Common Stock outstanding.
The following description of the Common Stock sets forth certain general
terms and provisions of the Common Stock to which any prospectus supplement may
relate, including a prospectus supplement providing that Common Stock will be
issuable upon conversion or exchange of debt securities or preferred stock of
the Company or upon the exercise of warrants to purchase Common Stock issued by
the Company. The statements below describing the Common Stock are in all
respects subject to and qualified in their entirety by reference to the
applicable provisions of the Company's Charter and Bylaws and the Maryland
General Corporation Law.
Subject to the preferential rights of any other shares or series of
capital stock, holders of the Company's Common Stock will be entitled to receive
dividends when, as and if authorized and declared by the Board of Directors of
the Company, out of funds legally available therefor. Payment and declaration of
dividends on the Common Stock and purchases of shares thereof by the Company may
be subject to certain restrictions if the Company fails to pay dividends on any
of its Preferred Stock. See "Description of Preferred Stock." Upon the
distribution of assets in connection with any liquidation, dissolution or
winding up of the Company, holders of Common Stock will be entitled to share
equally and ratably in any assets available for distribution to them, after
payment or provision for payment of all known debts and liabilities of the
Company and any preferential amounts owing with respect to any outstanding
Preferred Stock. Subject to certain provisions of Maryland law and the Company's
Charter and Bylaws, each outstanding share of Common Stock entitles the holder
to one vote on all matters submitted to a vote of stockholders, including the
election of directors, and, except as otherwise required by law or except as
provided with respect to any other class or series of stock (such as the
Company's Series D Preferred Stock, the holders of which have the right to vote
with the holders of the Company's Common Stock as though part of the same
class), the holders of such shares will possess the exclusive voting power.
Holders of Common Stock will not have cumulative voting rights in the election
of directors, which means that holders of a majority of all of the shares of or
voting with the Company's Common Stock for the election of directors will be
able to elect all of the directors to be elected by such holders if they choose
to do so and, accordingly, the holders of the remaining Common Stock will be
unable to elect any directors. Holders of shares of Common Stock will not have
preemptive rights, which means they have no right to acquire any additional
shares of Common Stock that may be issued by the Company at a subsequent date.
Holders of Common Stock also will have no conversion, sinking fund, redemption,
preference or exchange rights. Subject to the provisions of the Company Charter
regarding the restrictions on transfer and limitations on ownership of the
Common Stock or the Preferred Stock, shares of the Common Stock will have equal
dividend, liquidation and other rights. The Common Stock will, when issued, be
fully paid and nonassessable and will not be subject to preemptive or other
similar rights.
RESTRICTIONS ON OWNERSHIP
With certain exceptions, the Company's Charter provides that no person may
own, actually or constructively, more than 9.8% by value of the Company's Common
Stock or Preferred Stock. See "Restrictions on Ownership of Capital Stock."
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SHAREHOLDER RIGHTS PLAN
The Company has a Shareholder Rights Plan under which one preferred share
purchase right (a "Right") is attached to each outstanding share of the
Company's Common Stock. When exercisable, each Right entitles the registered
holder to purchase from the Company one one-thousandth of a share of the
Company's Series C Junior Participating Preferred Stock ("Series C Preferred
Stock") for an exercise price of $100, subject to adjustment. Because of the
nature of the dividend, liquidation and voting rights, the value of one
one-thousandth of a share of Series C Preferred Stock purchasable upon exercise
of each Right should approximate the value of one share of the Company's Common
Stock.
The Rights will become exercisable only if a person or group acquires,
obtains the right to acquire or announces a tender offer to acquire 15% or more
of the Company's Common Stock. Shares of Series C Preferred Stock purchasable
upon exercise of the Rights will be entitled, when, as and if declared, to a
minimum preferential quarterly dividend payment of $1.00 per share but will be
entitled to an aggregate dividend of 1,000 times the dividend, if any, declared
per share of the Company's Common Stock. In the event of liquidation,
dissolution or winding up of the Company, the holders of the Series C Preferred
Stock will be entitled to a minimum liquidation payment of $1,000 per share
(plus any accrued but unpaid dividends), preferential to the Company's Common
Stock, but junior to the Company's 8 1/2% Series A Cumulative Convertible
Preferred Stock, 8 5/8% Series B Cumulative Redeemable Preferred Stock, 7.8%
Series D Cumulative Voting Step-Up Premium Rate Preferred Stock and Preferred
Stock ranking on a parity with such Preferred Stock as to distributions or
rights upon liquidation, dissolution or winding up of the affairs of the
Company, but will be entitled to an aggregate payment of 1,000 times the payment
made per share of Series C Preferred Stock. Each share of Series C Preferred
Stock will have 1,000 votes and will vote together with shares of the Company's
Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which shares of the Company's Common Stock are exchanged, each
share of Series C Preferred Stock will be entitled to receive 1,000 times the
amount received per share of the Company's Common Stock. Shares of Series C
Preferred Stock are generally not redeemable. The Rights are protected by
customary antidilution provisions.
Until a person or group acquires or announces a tender offer to acquire
15% or more of the Common Stock, the Rights will be evidenced by the
certificates representing shares of Common Stock of the Company and will be
transferred with and only with such certificates. The surrender for transfer of
any certificate for shares of Common Stock will also constitute the transfer of
the Rights associated with the shares represented by such certificate. The
Rights will expire on May 26, 2008, subject to the Company's right to extend the
date, unless earlier redeemed or exchanged by the Company or terminated.
In the event that a person becomes an acquiring person or if the Company
were the surviving corporation in a merger with an acquiring person or any
affiliate or associate of an acquiring person and the Company's Common Stock was
not changed or exchanged, each holder of a Right, other than Rights that are or
were acquired or beneficially owned by the acquiring person (which Rights will
thereafter be void), will thereafter have the right to receive upon exercise
that number of shares of the Company's Common Stock having a market value of two
times the then current exercise price under the Right. In the event that, after
a person has become an acquiring person, the Company were acquired in a merger
or other business combination transaction or more than 50% of its assets or
earning power were sold, proper provision shall be made so that each holder of a
Right shall thereafter have the right to receive, upon the exercise thereof at
the then current exercise price under the Right, that number of shares of common
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stock of the acquiring company which at the time of such transaction would have
a market value of two times the then current exercise price under the Right.
At any time after a person becomes an acquiring person and prior to the
earlier of one of the events described in the last sentence of the previous
paragraph or the acquisition by such acquiring person of 50% or more of the
outstanding shares of the Company's Common Stock, the Board of Directors may
cause the Company to exchange the Rights (other than Rights owned by an
acquiring person which will have become void), in whole or in part, for that
number of shares of the Company's Common Stock having an aggregate value equal
to the spread (the excess of the value of the adjustment shares issuable upon
the exercise of a Right over the exercise price) per Right (subject to
adjustment).
The Rights may be redeemed in whole, but not in part, at a price of $.01
per Right by the Board of Directors at any time before the time that an
acquiring person has become such. The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish. Immediately upon any redemption
of the Rights, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the redemption price.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that acquires more than 15% of the
outstanding shares of Common Stock of the Company if certain events thereafter
occur without the Rights having been redeemed. However, because the Rights are
redeemable by the Board of Directors in certain circumstances, the Rights should
not interfere with any merger or other business combination approved by the
Board of Directors.
REGISTRAR AND TRANSFER AGENT
The registrar and transfer agent for the Company's Common Stock is
BankBoston, N.A.
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DESCRIPTION OF PREFERRED STOCK
The Company is authorized to issue 25,000,000 shares of Preferred Stock,
par value $.01 per share (the "Preferred Stock"). As of September 30, 1998,
2,904,980 shares of Preferred Stock were issued and outstanding, consisting of
2,124,980 shares of 8 1/2% Series A Cumulative Convertible Preferred Stock,
630,000 shares of 8 5/8% Series B Cumulative Redeemable Preferred Stock, and
150,000 of 7.8% Series D Cumulative Voting Step-Up Premium Rate Preferred Stock.
The latter two series of Preferred Stock are traded as depositary shares, each
depositary share representing one-tenth of a share of Preferred Stock. As of the
same date, 100,000 shares of Series C Preferred Stock had been classified and
were reserved for issuance under the Company's shareholder rights plan. See
"Description of Common Stock -- Shareholder Rights Plan."
Under the Company's Charter, shares of Preferred Stock may be issued from
time to time, in one or more series as authorized by the Board of Directors.
Prior to issuance of shares of each series, the Board of Directors is required
by the Maryland General Corporation Law and the Company's Charter to adopt
resolutions and file Articles Supplementary (the "Articles Supplementary") with
the State Department of Assessments and Taxation of Maryland, fixing for each
such series the designations, powers, preferences and rights of the shares of
such series and the qualifications, limitations or restrictions thereon,
including, but not limited to, dividend rights, dividend rate or rates,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preferences as are permitted by Maryland law. The Board of Directors could
authorize the issuance of shares of Preferred Stock with terms and conditions
which could have the effect of discouraging a takeover or other transaction
which holders of some, or a majority, of such shares might believe to be in
their best interests or in which holders of some, or a majority, of such shares
might receive a premium for their shares over the then market price of such
shares.
The following description of the Preferred Stock sets forth certain
general terms and provisions of the Preferred Stock to which any supplement to
this prospectus may relate. The statements below describing the Preferred Stock
are in all respects subject to and qualified in their entirety by reference to
the applicable provisions of the Company's Charter (including the applicable
Articles Supplementary) and Bylaws and the Maryland General Corporation Law.
GENERAL
Subject to limitations prescribed by Maryland law and the Company's
Charter and Bylaws, the Board of Directors is authorized to fix the number of
shares constituting each series of Preferred Stock and the designations and
powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereof, including such
provisions as may be desired concerning voting, redemption, dividends,
dissolution or the distribution of assets, conversion or exchange, and such
other subjects or matters as may be fixed by resolution of the Board of
Directors or duly authorized committee thereof. The Preferred Stock will, when
issued, be fully paid and nonassessable and will not have, or be subject to, any
preemptive or similar rights.
The prospectus supplement relating to the series of Preferred Stock
offered thereby will describe the specific terms of such securities, including:
(1) the title and stated value of such Preferred Stock;
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(2) the number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such
Preferred Stock;
(3) the dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Stock;
(4) whether dividends shall be cumulative or non-cumulative and, if
cumulative, the date from which dividends on such Preferred Stock
shall accumulate;
(5) the procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) the provisions for a sinking fund, if any, for such Preferred Stock;
(7) the provisions for redemption, if applicable, of such Preferred
Stock;
(8) any listing of such Preferred Stock on any securities exchange;
(9) the terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Common Stock of the Company,
including the conversion price (or manner of calculation thereof)
and conversion period;
(10) a discussion of federal income tax considerations applicable to such
Preferred Stock;
(11) any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding
up of the affairs of the Company;
(12) in addition to those limitations described below, any other
limitations on actual and constructive ownership and restrictions on
transfer, in each case as may be appropriate to preserve the status
of the Company as a REIT; and
(13) any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
RANK
Unless otherwise specified in the prospectus supplement relating to a
particular series of Preferred Stock, the Preferred Stock will, with respect to
dividend rights and rights upon liquidation, dissolution or winding up of the
Company, rank (i) senior to all classes or series of Common Stock of the
Company, and to all equity securities ranking junior to such Preferred Stock
with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company; (ii) on a parity with all equity securities issued by
the Company the terms of which specifically provide that such equity securities
rank on a parity with the Preferred Stock with respect to dividend rights or
rights upon liquidation, dissolution or winding up of the Company; and (iii)
junior to any equity securities issued by the Company the terms of which
specifically provide that such equity securities rank senior to the Preferred
Stock with respect to dividend rights or rights upon liquidation, dissolution or
winding up of the Company. As used in the Company's Charter for these purposes,
the term "equity securities" does not include convertible debt securities.
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DIVIDENDS
Unless otherwise specified in the prospectus supplement, the Preferred
Stock will have the rights with respect to payment of dividends set forth below.
Holders of shares of the Preferred Stock of each series shall be entitled
to receive, when, as and if declared and authorized by the Board of Directors of
the Company, out of assets of the Company legally available for payment, cash
dividends at such rates and on such dates as will be set forth in the applicable
prospectus supplement. Each such dividend shall be payable to holders of record
as they appear on the stock transfer books of the Company on such record dates
as shall be fixed by the Board of Directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
non-cumulative, to be described in the applicable prospectus supplement.
Dividends, if cumulative, will accumulate from and after the date set forth in
the applicable prospectus supplement. If the Board of Directors of the Company
fails to declare a dividend payable on a dividend payment date on any series of
the Preferred Stock for which dividends are non-cumulative, then the holders of
such series of the Preferred Stock will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment date.
If any shares of the Preferred Stock of any series are outstanding, no
full dividends shall be declared or paid or set apart for payment on the
Preferred Stock of the Company of any other series ranking, as to dividends, on
a parity with or junior to the Preferred Stock of such series for any period
unless (i) if such series of Preferred Stock has a cumulative dividend, full
cumulative dividends have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof irrevocably set apart for
such payment on the Preferred Stock of such series for all past dividend periods
and the then current dividend period or (ii) if such series of Preferred Stock
does not have a cumulative dividend, full dividends for the then current
dividend period have been or contemporaneously are declared and paid or declared
and a sum sufficient for the payment thereof irrevocably set apart for such
payment on the Preferred Stock of such series. When dividends are not paid in
full (or a sum sufficient for such full payment is not so irrevocably set apart)
upon the shares of Preferred Stock of any series and the shares of any other
series of preferred stock ranking on a parity as to dividends with the Preferred
Stock of such series, all dividends declared upon shares of Preferred Stock of
such series and any other series of preferred stock ranking on a parity as to
dividends with such Preferred Stock shall be declared pro rata so that the
amount of dividends declared per share on the Preferred Stock of such series and
such other series of preferred stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on the shares of
Preferred Stock of such series (which shall not include any accumulation in
respect of unpaid dividends for prior dividend periods if such Preferred Stock
does not have a cumulative dividend) and such other series of preferred stock
bear to each other. No interest, or sum of money in lieu of interest, shall be
payable in respect of any dividend payment or payments on Preferred Stock of
such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
irrevocably set apart for payment for all past dividend periods and the then
current dividend period and (ii) if such series of Preferred Stock does not have
a cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and
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a sum sufficient for the payment thereof irrevocably set apart for payment for
the then current dividend period, no dividends (other than in Common Stock or
other capital stock ranking junior to the Preferred Stock of such series as to
dividends and upon liquidation, dissolution or winding up of the Company) shall
be declared or paid or set aside for payment or other distribution shall be
declared or made upon the Common Stock or any other capital stock of the Company
ranking junior to or on a parity with the Preferred Stock of such series as to
dividends or upon liquidation, dissolution or winding up of the Company, nor
shall any Common Stock or any other capital stock of the Company ranking junior
to or on a parity with the Preferred Stock of such series as to dividends or
upon liquidation, dissolution or winding up of the Company be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be paid to
or made available for a sinking fund for the redemption of any shares of any
such stock) by the Company (except by conversion into or exchange for other
capital stock of the Company ranking junior to the Preferred Stock of such
series as to dividends and upon liquidation, dissolution or winding up of the
Company, and except for a redemption or purchase or other acquisition of shares
of Common Stock made for purposes of an employee benefit plan of the Company or
any subsidiary or as provided for under the Company's Charter to protect the
Company's status as a REIT).
Any dividend payment made on shares of a series of Preferred Stock shall
first be credited against the earliest accrued but unpaid dividend due with
respect to shares of such series which remains payable.
If for any taxable year, the Company elects to designate as "capital gains
dividends" (as defined in Section 857 of the Internal Revenue Code) any portion
(the "Capital Gains Amount") of the total dividends (within the meaning of the
Internal Revenue Code) paid or made available for the year to holders of all
classes of capital stock, then the portion of the Capital Gains Amount that will
be allocable to the holders of Preferred Stock will be the Capital Gains Amount
multiplied by a fraction, the numerator of which shall be the total dividends
paid or made available to the holders of shares of Preferred Stock for the year
and the denominator of which shall be the total dividends.
REDEMPTION
If so described in the applicable prospectus supplement, the shares of
Preferred Stock will be subject to mandatory redemption or redemption at the
option of the Company, in whole or in part, in each case upon the terms, at the
times and at the redemption prices set forth in such prospectus supplement.
The prospectus supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Company in each year commencing
after a date to be specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends thereon (which
shall not, if such Preferred Stock does not have a cumulative dividend, include
any accumulation in respect of unpaid dividends for prior dividend periods) to
the date of redemption. The redemption price may be payable in cash or other
property, as described in the applicable prospectus supplement. If the
redemption price for Preferred Stock of any series is payable only from the net
proceeds of the issuance of capital stock of the Company, the terms of such
Preferred Stock may provide that, if no such capital stock shall have been
issued or to the extent the net proceeds from any issuance are insufficient to
pay in full the aggregate redemption price then due, such Preferred Stock shall
automatically and mandatorily be converted into shares of the applicable capital
stock of the Company pursuant to conversion provisions specified in the
applicable prospectus supplement.
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Notwithstanding the foregoing, unless (i) if such series of Preferred
Stock has a cumulative dividend, full cumulative dividends on all shares of any
series of Preferred Stock shall have been or contemporaneously are declared and
paid or declared and a sum sufficient for the payment thereof irrevocably set
apart for payment for all past dividend periods and the then current dividend
period and (ii) if such series of Preferred Stock does not have a cumulative
dividend, full dividends on the Preferred Stock of any series have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof irrevocably set apart for payment for the then current dividend
period, no shares of any series of Preferred Stock shall be redeemed unless all
outstanding shares of Preferred Stock of such series are simultaneously
redeemed; provided, however, that the foregoing shall not prevent the purchase
or acquisition of shares of Preferred Stock of such series pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Preferred Stock of such series, and, unless (i) if such series of
Preferred Stock has a cumulative dividend, full cumulative dividends on all
outstanding shares of any series of Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof irrevocably set apart for payment for all past dividend periods
and the then current dividend period and (ii) if such series of Preferred Stock
does not have a cumulative dividend, full dividends on the Preferred Stock of
any series have been or contemporaneously are declared and paid or declared and
a sum sufficient for the payment thereof irrevocably set apart for payment for
the then current dividend period, the Company shall not purchase or otherwise
acquire directly or indirectly any shares of Preferred Stock of such series
(except by conversion into or exchange for capital stock of the Company ranking
junior to the Preferred Stock of such series as to dividends and upon
liquidation, dissolution or winding up of the Company).
If fewer than all of the outstanding shares of Preferred Stock of any
series are to be redeemed, the number of shares to be redeemed will be
determined by the Company and such shares may be redeemed pro rata from the
holders of record of such shares in proportion to the number of such shares held
by such holders (with adjustments to avoid redemption of fractional shares) or
any other equitable method determined by the Company that will not result in
violation of the ownership limitations set forth in the Charter.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of a share of Preferred
Stock of any series to be redeemed at the address shown on the stock transfer
books of the Company. Each notice shall state: (i) the redemption date; (ii) the
number of shares and series of the Preferred Stock to be redeemed; (iii) the
redemption price; (iv) the place or places where certificates for such Preferred
Stock are to be surrendered for payment of the redemption price; (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date; and (vi) the date upon which the holder's conversion rights, if any, as to
such shares shall terminate. If fewer than all the shares of Preferred Stock of
any series are to be redeemed, the notice mailed to each such holder thereof
shall also specify the number of shares of Preferred Stock to be redeemed from
each such holder. If notice of redemption of any shares of Preferred Stock has
been given and if the funds necessary for such redemption have been irrevocably
set apart by the Company in trust for the benefit of the holders of any shares
of Preferred Stock so called for redemption, then from and after the redemption
date dividends will cease to accrue on such shares of Preferred Stock, such
shares of Preferred Stock shall no longer be deemed outstanding and all rights
of the holders of such shares will terminate, except the right to receive the
redemption price.
In addition, and the foregoing to the contrary notwithstanding, the shares
of Preferred Stock will be issued subject to the terms and provisions of the
Charter providing for a purchase option in favor of the Company in respect of
those shares, in order to protect the Company's status as a REIT. See
"Restrictions on Ownership of Capital Stock."
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LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up
of the affairs of the Company, then, before any distribution or payment shall be
made to the holders of any Common Stock or any other class or series of capital
stock of the Company ranking junior to the Preferred Stock in the distribution
of assets upon any liquidation, dissolution or winding up of the Company, the
holders of each series of Preferred Stock shall be entitled to receive out of
assets of the Company legally available for distribution to stockholders
liquidating distributions in the amount of the liquidation preference per share
(set forth in the applicable prospectus supplement and Articles Supplementary),
plus an amount equal to all dividends accrued and unpaid thereon (which shall
not include any accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Stock does not have a cumulative dividend). After
payment of the full amount of the liquidating distributions to which they are
entitled, the holders of Preferred Stock will have no right or claim to any of
the remaining assets of the Company. In the event that, upon any such voluntary
or involuntary liquidation, dissolution or winding up, the legally available
assets of the Company are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of Preferred Stock and the corresponding
amounts payable on all shares of other classes or series of capital stock of the
Company ranking on a parity with the Preferred Stock in the distribution of
assets upon liquidation, dissolution or winding up of the Company, then the
holders of the Preferred Stock and all other such classes or series of capital
stock shall share ratably in any such distribution of assets in proportion to
the full liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all holders
of shares of Preferred Stock, the remaining assets of the Company shall be
distributed among the holders of any other classes or series of capital stock
ranking junior to the Preferred Stock upon liquidation, dissolution or winding
up of the Company, according to their respective rights and preferences and in
each case according to their respective number of shares. For such purposes, the
consolidation or merger of the Company with or into any other corporation, or
the sale, lease, transfer or conveyance of all or substantially all of the
property or business of the Company, shall not be deemed to constitute a
liquidation, dissolution or winding up of the Company.
VOTING RIGHTS
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as indicated in the applicable prospectus supplement and
Articles Supplementary.
Whenever dividends on any shares of Preferred Stock shall be in arrears
for six or more quarterly periods, whether or not consecutive, the number of
directors then constituting the Board of Directors of the Company, if not then
previously increased by reason of a similar arrearage with respect to any series
of Preferred Stock with like rights, will automatically be increased by two and
the holders of each series of Preferred Stock (voting separately as a class with
all other series of Preferred Stock upon which like voting rights have been
conferred and are exercisable) will be entitled to vote for the election of two
additional directors of the Company at a special meeting of the shares of
Preferred Stock of any series so in arrears or at the next annual meeting of
stockholders, and at each subsequent annual meeting at which their successors
are to be elected, until (i) if such series of Preferred Stock has a cumulative
dividend, all dividends accumulated on such shares of Preferred Stock for the
past dividend periods and the then current dividend period shall have been fully
paid or declared and a sum sufficient for the payment thereof irrevocably set
apart for payment or (ii) if such series of Preferred Stock does not have a
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cumulative dividend, four consecutive quarterly dividends shall have been fully
paid or declared and a sum sufficient for the payment thereof irrevocably set
apart for payment; whereupon, in either such case, either such directors shall
resign or their term of office shall expire, and the number of directors
constituting the Board of Directors shall be decreased accordingly.
Unless provided otherwise for any series of Preferred Stock, so long as
any shares of Preferred Stock remain outstanding, the Company shall not, without
the affirmative vote or consent of the holders of at least 66 2/3% of the shares
of each series of Preferred Stock outstanding at the time, given in person or by
proxy, either in writing or at a meeting (such series voting separately as a
class), (i) authorize or create, or increase the authorized or issued amount of,
any class or series of capital stock ranking senior to such series of Preferred
Stock with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of the Company or reclassify any
authorized capital stock of the Company into any such shares, or create,
authorize or issue any obligation or security convertible into or evidencing the
right to purchase any such shares; or (ii) amend, alter or repeal the provisions
of the Company's Charter (including the Articles Supplementary for such series
of Preferred Stock), whether by merger, consolidation or otherwise, so as to
materially and adversely affect any right, preference, privilege or voting power
of such series of Preferred Stock or the holders thereof; provided, however,
that any increase in the amount of the authorized Preferred Stock or the
creation or issuance of any other series of Preferred Stock, or any increase in
the amount of authorized shares of such series or any other series of Preferred
Stock, in each case ranking on a parity with or junior to the Preferred Stock of
such series with respect to payment of dividends and the distribution of assets
upon liquidation, dissolution or winding up of the Company, shall not be deemed
to materially and adversely affect such rights, preferences, privileges or
voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Stock shall have
been redeemed or called for redemption upon proper notice and sufficient funds
shall have been irrevocably deposited in trust to effect such redemption.
CONVERSION RIGHTS
The terms and conditions, if any, upon which shares of any series of
Preferred Stock are convertible into Common Stock will be set forth in the
applicable prospectus supplement relating thereto. Such terms will include the
number of shares of Common Stock into which the Preferred Stock is convertible,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders of the
Preferred Stock or the Company, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such Preferred Stock.
RESTRICTIONS ON OWNERSHIP
With certain exceptions, the Company's Charter provides that no person may
own, actually or constructively, more than 9.8% by value of the Company's Common
Stock or Preferred Stock. See "Restrictions on Ownership of Capital Stock."
TRANSFER AGENT
The registrar and transfer agent for a particular series of Preferred
Stock will be set forth in the applicable prospectus supplement.
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DESCRIPTION OF DEPOSITARY SHARES
GENERAL
The Company may issue receipts for depositary shares, each of which
depositary receipts will represent a fractional interest of a share of a
particular series of Preferred Stock, as specified in the applicable prospectus
supplement. Shares of Preferred Stock of each series represented by depositary
shares will be deposited under a separate Deposit Agreement among the Company,
the depositary named therein and the holders from time to time of the depositary
receipts. Subject to the terms of the Deposit Agreement, each owner of a
depositary receipt will be entitled, in proportion to the fractional interest of
a share of a particular series of Preferred Stock represented by the depositary
shares evidenced by such depositary receipt, to all the rights and preferences
of the Preferred Stock represented by such depositary shares (including
dividend, voting, conversion, redemption and liquidation rights).
The depositary shares will be evidenced by depositary receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the issuance
and delivery of the Preferred Stock by the Company to the preferred stock
depositary, the Company will cause the preferred stock depositary to issue, on
behalf of the Company, the depositary receipts. Copies of the applicable form of
Deposit Agreement and depositary receipt may be obtained from the Company upon
request, and the statements made hereunder relating to the Deposit Agreement and
the depositary receipts to be issued thereunder are summaries of certain
provisions thereof and do not purport to be complete and are subject to, and
qualified in their entirety by reference to, all of the provisions of the
applicable Deposit Agreement and related depositary receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The preferred stock depositary will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to the record
holders of depositary receipts evidencing the related depositary shares in
proportion to the number of such depositary receipts owned by such holders,
subject to certain obligations of holders to file proofs, certificates and other
information and to pay certain charges and expenses to the preferred stock
depositary.
In the event of a distribution other than in cash, the preferred stock
depositary will distribute property received by it to the record holders of
depositary receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the preferred stock depositary, unless the preferred stock
depositary determines that it is not feasible to make such distribution, in
which case the preferred stock depositary may, with the approval of the Company,
sell such property and distribute the net proceeds from such sale to such
holders.
No distribution will be made in respect of any depositary share to the
extent that it represents any Preferred Stock converted into other securities.
WITHDRAWAL OF STOCK
Upon surrender of the depositary receipts at the corporate trust office of
the preferred stock depositary (unless the related depositary shares have
previously been called for redemption or converted into other securities), the
holders thereof will be entitled to delivery at such office, to or upon such
holder's order, of the number of whole or fractional shares of the Preferred
Stock and any money or other property represented by the depositary shares
evidenced by such depositary receipts. Holders of
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depositary receipts will be entitled to receive whole or fractional shares of
the related Preferred Stock on the basis of the proportion of Preferred Stock
represented by each depositary share as specified in the applicable prospectus
supplement, but holders of such shares of Preferred Stock will not thereafter be
entitled to receive depositary shares therefor. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the
number of depositary shares representing the number of shares of Preferred Stock
to be withdrawn, the preferred stock depositary will deliver to such holder at
the same time a new depositary receipt evidencing such excess number of
depositary shares.
REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems shares of Preferred Stock held by the
preferred stock depositary, the preferred stock depositary will redeem as of the
same redemption date the number of depositary shares representing shares of the
Preferred Stock so redeemed, provided the Company shall have paid in full to the
preferred stock depositary the redemption price of the Preferred Stock to be
redeemed plus an amount equal to any accrued and unpaid dividends thereon to the
date fixed for redemption. The redemption price per depositary share will be
equal to the corresponding proportion of the redemption price and any other
amounts per share payable with respect to the Preferred Stock. If fewer than all
the depositary shares are to be redeemed, the depositary shares to be redeemed
will be selected pro rata (as nearly as may be practicable without creating
fractional depositary shares) or by any other equitable method determined by the
Company that will not result in a violation of the ownership restrictions in the
Company's Charter applicable to owners of the Company's Common Stock and
Preferred Stock. See "Restrictions on Ownership of Capital Stock."
From and after the date fixed for redemption, all dividends in respect of
the shares of Preferred Stock so called for redemption will cease to accrue, the
depositary shares so called for redemption will no longer be deemed to be
outstanding and all rights of the holders of the depositary receipts evidencing
the depositary shares so called for redemption will cease, except the right to
receive any moneys payable upon such redemption and any money or other property
to which the holders of such depositary receipts were entitled upon such
redemption and surrender thereof to the preferred stock depositary.
VOTING OF THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the preferred stock depositary will mail
the information contained in such notice of meeting to the record holders of the
depositary receipts evidencing the depositary shares which represent such
Preferred Stock. Each record holder of depositary receipts evidencing depositary
shares on the record date (which will be the same date as the record date for
the Preferred Stock) will be entitled to instruct the preferred stock depositary
as to the exercise of the voting rights pertaining to the amount of Preferred
Stock represented by such holder's depositary shares. The preferred stock
depositary will vote the amount of Preferred Stock represented by such
depositary shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
preferred stock depositary in order to enable the preferred stock depositary to
do so. The preferred stock depositary will abstain from voting the amount of
Preferred Stock represented by such depositary shares to the extent it does not
receive specific instructions from the holders of depositary receipts evidencing
such depositary shares. The preferred stock depositary shall not be responsible
for any failure to carry out any instruction to vote, or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
preferred stock depositary.
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LIQUIDATION PREFERENCE
In the event of the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each depositary receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the depositary shares evidenced by such
depositary receipt, as set forth in the applicable prospectus supplement.
CONVERSION OF PREFERRED STOCK
The depositary shares, as such, are not convertible into Common Stock or
any other securities or property of the Company. Nevertheless, if so specified
in the applicable prospectus supplement relating to an offering of depositary
shares, the depositary receipts may be surrendered by holders thereof to the
preferred stock depositary with written instructions to the preferred stock
depositary to instruct the Company to cause conversion of the Preferred Stock
represented by the depositary shares evidenced by such depositary receipts into
whole shares of Common Stock, other shares of Preferred Stock of the Company or
other shares of stock, and the Company has agreed that upon receipt of such
instructions and any amounts payable in respect thereof, it will cause the
conversion thereof utilizing the same procedures as those provided for delivery
of Preferred Stock to effect such conversion. If the depositary shares evidenced
by a depositary receipt are to be converted in part only, a new depositary
receipt or receipts will be issued for any depositary shares not to be
converted. No fractional shares of Common Stock will be issued upon conversion,
and if such conversion would result in a fractional share being issued, an
amount will be paid in cash by the Company equal to the value of the fractional
interest based upon the closing price of the Common Stock on the last business
day prior to the conversion.
AMENDMENT AND TERMINATION OF DEPOSIT AGREEMENT
The form of depositary receipt evidencing the depositary shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the preferred stock
depositary. However, any amendment that materially and adversely alters the
rights of the holders of depositary receipts or that would be materially and
adversely inconsistent with the rights granted to the holders of the related
Preferred Stock will not be effective unless such amendment has been approved by
the existing holders of at least 66 2/3% of the depositary shares evidenced by
the depositary receipts then outstanding. No amendment shall impair the right,
subject to certain exceptions in the Depositary Agreement, of any holder of
depositary receipts to surrender any depositary receipt with instructions to
deliver to the holder the related Preferred Stock and all money and other
property, if any, represented thereby, except in order to comply with law. Every
holder of an outstanding depositary receipt at the time any such amendment
becomes effective shall be deemed, by continuing to hold such receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
The Deposit Agreement may be terminated by the Company upon not less than
30 days' prior written notice to the preferred stock depositary if (i) such
termination is necessary to preserve the Company's status as a REIT or (ii) a
majority of each series of Preferred Stock affected by such termination consents
to such termination, whereupon the preferred stock depositary shall deliver or
make available to each holder of depositary receipts, upon surrender of the
depositary receipts held by such holder, such number of whole or fractional
shares of Preferred Stock as are represented by the depositary shares evidenced
by such depositary receipts together with any other property held by the
preferred stock depositary with respect to such depositary receipts. The Company
has agreed that if the Deposit Agreement is terminated to preserve the Company's
status as a REIT, then the Company will use its best
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efforts to list the Preferred Stock issued upon surrender of the related
depositary shares on a national securities exchange. In addition, the Deposit
Agreement will automatically terminate if (i) all outstanding depositary shares
shall have been redeemed, (ii) there shall have been a final distribution in
respect of the related Preferred Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of depositary receipts evidencing the depositary
shares representing such Preferred Stock or (iii) each share of the related
Preferred Stock shall have been converted into securities of the Company not so
represented by depositary shares.
CHARGES OF PREFERRED STOCK DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the preferred stock depositary in
connection with the performance of its duties under the Deposit Agreement.
However, holders of depositary receipts will pay the fees and expenses of the
preferred stock depositary for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The preferred stock depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the preferred stock depositary, any such resignation or removal to take effect
upon the appointment of a successor preferred stock depositary. A successor
preferred stock depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000.
MISCELLANEOUS
The preferred stock depositary will forward to holders of depositary
receipts any reports and communications from the Company which are received by
the preferred stock depositary with respect to the related Preferred Stock.
Neither the preferred stock depositary nor the Company will be liable if
it is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The obligations
of the Company and the preferred stock depositary under the Deposit Agreement
will be limited to performing their duties thereunder in good faith and without
negligence (in the case of any action or inaction in the voting of Preferred
Stock represented by the depositary shares), gross negligence or willful
misconduct, and the Company and the preferred stock depositary will not be
obligated to prosecute or defend any legal proceeding in respect of any
depositary receipts, depositary shares or shares of Preferred Stock represented
thereby unless satisfactory indemnity is furnished. The Company and the
preferred stock depositary may rely on written advice of counsel or accountants,
or information provided by persons presenting shares of Preferred Stock
represented thereby for deposit, holders of depositary receipts or other persons
believed in good faith to be competent to give such information, and on
documents believed in good faith to be genuine and signed by a proper party.
In the event the preferred stock depositary shall receive conflicting
claims, requests or instructions from any holders of depositary receipts, on the
one hand, and the Company, on the other
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hand, the preferred stock depositary shall be entitled to act on such claims,
requests or instructions received from the Company.
RESTRICTIONS ON OWNERSHIP
Holders of depositary receipts will be subject to the ownership
restrictions of the Company's Charter which provides, with certain exceptions,
that no person may own, actually or constructively, more than 9.8% by value of
the Company's Common Stock or Preferred Stock. See "Restrictions on Ownership of
Capital Stock."
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DESCRIPTION OF WARRANTS
The Company may offer by means of this prospectus warrants for the
purchase of its debt securities, Preferred Stock, depositary shares or Common
Stock. The Company may issue warrants separately or together with any other
securities offered by means of this prospectus, and the warrants may be attached
to or separate from such securities. Each series of warrants will be issued
under a separate warrant agreement (each, a "Warrant Agreement") to be entered
into between the Company and a warrant agent specified therein. The warrant
agent will act solely as an agent of the Company in connection with the warrants
of such series and will not assume any obligation or relationship of agency or
trust for or with any holders or beneficial owners of warrants.
The applicable prospectus supplement will describe the following terms,
where applicable, of the warrants in respect of which this prospectus is being
delivered: (1) the title and issuer of such warrants; (2) the aggregate number
of such warrants; (3) the price or prices at which such warrants will be issued;
(4) the currencies in which the price or prices of such warrants may be payable;
(5) the designation, amount and terms of the securities purchasable upon
exercise of such warrants; (6) the designation and terms of the other securities
with which such warrants are issued and the number of such warrants issued with
each such security; (7) if applicable, the date on and after which such warrants
and the securities purchasable upon exercise of such warrants will be separately
transferable; (8) the price or prices at which and currency or currencies in
which the securities purchasable upon exercise of such warrants may be
purchased; (9) the date on which the right to exercise such warrants shall
commence and the date on which such right shall expire; (10) the minimum or
maximum amount of such warrants which may be exercised at any one time; (11)
information with respect to book-entry procedures, if any; (12) a discussion of
certain federal income tax considerations; and (13) any other material terms of
such warrants, including terms, procedures and limitations relating to the
exchange and exercise of such warrants.
DESCRIPTION OF RIGHTS
The Company may issue rights to its shareholders for the purchase of
shares of Common Stock. Each series of rights will be issued under a separate
rights agreement (a "Rights Agreement") to be entered into between the Company
and a bank or trust company, as rights agent, all as set forth in the prospectus
supplement relating to the particular issue of rights. The rights agent will act
solely as an agent of the Company in connection with the certificates relating
to the rights of such series and will not assume any obligation or relationship
of agency or trust for or with any holders of rights certificates or beneficial
owners of rights. The Rights Agreement and the rights certificates relating to
each series of rights will be filed with the SEC and incorporated by reference
as an exhibit to the Registration Statement of which this prospectus is a part.
The applicable prospectus supplement will describe the terms of the rights
to be issued, including the following, where applicable: (1) the date for
determining the shareholders entitled to the rights distribution; (2) the
aggregate number shares of Common Stock purchasable upon exercise of such rights
and the exercise price; (3) the aggregate number of rights being issued; (4) the
date, if any, on and after which such rights may be transferable separately; (5)
the date on which the right to exercise such rights shall commence and the date
on which such right shall expire; (6) any special United States federal income
tax consequences; and (7) any other terms of such rights, including terms,
procedures and limitations relating to the distribution, exchange and exercise
of such rights.
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RESTRICTIONS ON OWNERSHIP OF CAPITAL STOCK
For the Company to continue to qualify as a REIT under the federal tax
code, its shares of stock must be beneficially owned by 100 or more persons
during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year. Also, not more than 50% of the
value of the outstanding shares of stock may be owned, directly or indirectly,
by five or fewer individuals (as defined in the federal tax code to include
certain entities such as qualified pension plans) during the last half of a
taxable year (other than the first year for which an election to be a REIT has
been made). See "Certain Federal Income Tax Considerations to the Company of its
REIT Election."
The Company's Charter, subject to certain exceptions, contains certain
restrictions on the number of shares of stock of the Company that a person may
own. The Charter prohibits any person from acquiring or holding, directly or
indirectly, shares of the Company's stock in excess of 9.8% (by value or by
number of shares, whichever is more restrictive, except only by value in the
case of any outstanding Preferred Stock) of the outstanding shares of each class
or series of stock of the Company (except in the case of the Series A Preferred
Stock and the Series D Preferred Stock, where the prohibition relates to the
stated percentage of all outstanding Equity Stock (as defined in the Indenture
and explained below) of the Company) (the "Ownership Limit"). The number and
value of shares of the outstanding Common Stock and Preferred Stock
(collectively, the "Equity Stock") is required to be determined in good faith,
which determination shall be conclusive for all purposes hereof.
The Company's Board of Directors, upon receipt of a ruling from the
Internal Revenue Service or an opinion of counsel or other evidence satisfactory
to the Board of Directors and upon at least 15 days' written notice from a
transferee prior to the proposed transfer that, if consummated, would result in
the intended transferee beneficially owning shares in excess of the Ownership
Limit, and upon such other conditions as the Board of Directors may direct, may
exempt a person from the Ownership Limit (an "Excepted Holder"). In order to be
considered by the Board of Directors as an Excepted Holder, a person also must
not own, directly or indirectly, an interest in a tenant of the Company (or a
tenant of any entity owned or controlled by the Company) that would cause the
Company to own, directly or indirectly, more than a 9.9% interest in such a
tenant. The person seeking an exemption must represent to the satisfaction of
the Board of Directors that it will not violate the aforementioned restriction.
The person also must agree that any violation or attempted violation of the
foregoing restriction will result in the automatic transfer of the share of
stock causing such violation to the Company (as defined below).
The Company Charter further prohibits (a) any person from beneficially or
constructively owning shares of stock of the Company that would result in the
Company being "closely held" under Section 856(h) of the federal tax code or
otherwise cause the Company to fail to qualify as a REIT and (b) any person from
transferring shares of stock of the Company if such transfer would result in
shares of stock of the Company being owned by fewer than 100 persons. Any person
who acquires or attempts or intends to acquire beneficial or constructive
ownership of shares of stock of the Company that will or may violate any of the
foregoing restrictions on transferability and ownership, or any person who would
have owned shares of the stock of the Company that resulted in a transfer of
shares to the Company, is required to give notice immediately to the Company and
provide the Company with such other information as the Company may request in
order to determine the effect of such transfer on the Company's status as a
REIT. The foregoing restrictions on transferability and ownership will not apply
if the Company's Board of Directors determines that it is no longer in the best
interests of the Company to attempt to qualify, or to continue to qualify, as a
REIT.
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If any transfer of shares of stock of the Company occurs which, if
effective, would result in any person beneficially or constructively owning
shares of stock of the Company in excess or in violation of the above transfer
or ownership limitations (a "Purported Transferee"), then that number of shares
of stock of the Company the beneficial or constructive ownership of which
otherwise would cause such person to violate such limitations (rounded to the
nearest whole share) shall be automatically transferred to a trust (the "Trust")
for the exclusive benefit of one or more charitable beneficiaries (the
"Charitable Beneficiary"), and the Purported Transferee shall not acquire any
rights in such shares. Such automatic transfer shall be deemed to be effective
as of the close of business on the Business Day (as defined in the Company's
Charter) prior to the date of such violative transfer. Shares of stock held in
the Trust shall be issued and outstanding shares of stock of the Company. The
Purported Transferee shall not benefit economically from ownership of any shares
of stock held in the Trust, shall have no rights to dividends and shall not
possess any rights to vote or other rights attributable to the shares of stock
held in the Trust. The trustee of the Trust shall have all voting rights and
rights to dividends or other distributions with respect to shares of stock held
in the Trust, which rights shall be exercised for the exclusive benefit of the
Charitable Beneficiary. Any dividend or other distribution prior to the
discovery by the Company that shares of stock have been transferred to the
trustee of the Trust shall be paid by the recipient of such dividend or
distribution to the trustee upon demand, and any dividend or other distribution
authorized but unpaid shall be paid when due to the trustee. Any dividend or
distribution so paid to the trustee shall be held in trust for the Charitable
Beneficiary. The Purported Transferee shall have no voting rights with respect
to shares of stock held in the Trust and, subject to Maryland law, effective as
of the date that such shares of stock have been transferred to the Trust, the
trustee of the Trust shall have the authority (at the trustee's sole discretion)
(i) to rescind as void any vote cast by a Purported Transferee prior to the
discovery by the Company that such shares have been transferred to the Trust and
(ii) to recast such vote in accordance with the desires of the trustee of the
Trust acting for the benefit of the Charitable Beneficiary. However, if the
Company has already taken irreversible corporate action, then the trustee shall
not have the authority to rescind and recast such vote.
The trustee of the Trust may transfer the shares of stock held in the
Trust to a person, designated by the trustee, whose ownership of the shares will
not violate the Ownership Limitation or other limitations set forth in the
Company Charter. Upon such sale, the interest of the Charitable Beneficiary in
the shares sold shall terminate and the trustee shall distribute the net
proceeds of the sale to the Purported Transferee and to the Charitable
Beneficiary as follows. The Purported Transferee shall receive the lesser of (i)
the price paid by the Purported Transferee for the shares or, if the Purported
Transferee did not give value for the shares in connection with the event
causing the shares to be held in the Trust (e.g., a gift, devise or other such
transaction), the Market Price (as defined in the Company's Charter) of such
shares on the day of the event causing the shares to be held in the Trust and
(ii) the price per share received by the trustee from the sale or other
disposition of the shares held in the Trust. Any net sale proceeds in excess of
the amount payable to the Purported Transferee shall be paid immediately to the
Charitable Beneficiary. If, prior to the discovery by the Company that shares of
stock have been transferred to the Trust, such shares are sold by a Purported
Transferee, then (i) such shares shall be deemed to have been sold on behalf of
the Trust and (ii) to the extent that the Purported Transferee received an
amount for such shares that exceeds the amount that such Purported Transferee
was entitled to receive pursuant to the aforementioned requirement, such excess
shall be paid to the trustee of the Trust upon demand.
In addition, shares of stock held in the Trust shall be deemed to have
been offered for sale to the Company, or its designee, at a price per share
equal to the lesser of (i) the price per share in the transaction that resulted
in such transfer to the Trust (or, in the case of a devise or gift, the Market
Price at the time of such devise or gift) and (ii) the Market Price on the date
the Company, or its designee,
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accepts such offer. The Company shall have the right to accept such offer for a
period of 90 days after the later of (i) the date of the purported transfer
resulting in a transfer to the Trust and (ii) the date that the Board of
Directors determines in good faith that such transfer occurred. Upon such a sale
to the Company, the interest of the Charitable Beneficiary in the shares sold
shall terminate and the trustee of the Trust shall distribute the net proceeds
of the sale to the Purported Transferee.
All certificates representing shares of the Common Stock and the Preferred
Stock will bear a legend referring to the restrictions described above.
Every owner of more than 5% (or such lower percentage as required by the
federal tax code or the regulations promulgated thereunder) of the number or
value of outstanding shares of Equity Stock of the Company, shall, within 30
days after January 1 of each year, give written notice to the Company stating
the name and address of such owner, the number of shares of each class and
series of stock of the Company which the owner constructively or beneficially
owns and a description of the manner in which such shares are held. Each such
owner shall provide to the Company such additional information as the Company
may request in order to determine the effect, if any, of such beneficial
ownership on the Company's status as a REIT and to ensure compliance with the
Ownership Limit. In addition, each stockholder shall upon demand be required to
provide to the Company such information as the Company may reasonably request in
order to determine the Company's status as a REIT and to comply with the
requirements of any taxing authority or governmental authority or to determine
such compliance.
These ownership limits could delay, defer or prevent a transaction or a
change in control of the Company that might involve a premium price for the
Equity Stock or otherwise be in the best interest of the Company's stockholders.
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BOOK-ENTRY SECURITIES
The securities offered by means of this prospectus may be issued in whole
or in part in book-entry form, meaning that beneficial owners of the securities
will not receive certificates representing their ownership interests in the
securities, except in the event the book-entry system for the securities is
discontinued. Securities issued in book entry form will be evidenced by one or
more global securities that will be deposited with, or on behalf of, a
depositary identified in the applicable prospectus supplement relating to the
securities. The Depository Trust Company is expected to serve as depository.
Unless and until it is exchanged in whole or in part for the individual
securities represented thereby, a global security may not be transferred except
as a whole by the depository for the global security to a nominee of such
depository or by a nominee of such depository to such depository or another
nominee of such depository or by the depository or any nominee of such
depository to a successor depository or a nominee of such successor. Global
securities may be issued in either registered or bearer form and in either
temporary or permanent form. The specific terms of the depositary arrangement
with respect to a class or series of securities that differ from the terms
described here will be described in the applicable prospectus supplement.
Unless otherwise indicated in the applicable prospectus supplement, the
Company anticipates that the following provisions will apply to depository
arrangements.
Upon the issuance of a global security, the depository for the global
security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual securities represented
by such global security to the accounts of persons that have accounts with such
depository, who are called "participants." Such accounts shall be designated by
the underwriters, dealers or agents with respect to the securities or by the
Company if the securities are offered and sold directly by the Company.
Ownership of beneficial interests in a global security will be limited to the
depository's participants or persons that may hold interests through such
participants. Ownership of beneficial interests in the global security will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the applicable depository or its nominee (with respect to
beneficial interests of participants) and records of the participants (with
respect to beneficial interests of persons who hold through participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and laws may impair
the ability to own, pledge or transfer beneficial interest in a global security.
So long as the depository for a global security or its nominee is the
registered owner of such global security, such depository or nominee, as the
case may be, will be considered the sole owner or holder of the securities
represented by such global security for all purposes under the applicable
Indenture or other instrument defining the rights of a holder of the securities.
Except as provided below or in the applicable prospectus supplement, owners of
beneficial interest in a global security will not be entitled to have any of the
individual securities of the series represented by such global security
registered in their names, will not receive or be entitled to receive physical
delivery of any such securities in definitive form and will not be considered
the owners or holders thereof under the applicable Indenture or other instrument
defining the rights of the holders of the securities.
Payments of amounts payable with respect to individual securities
represented by a global security registered in the name of a depository or its
nominee will be made to the depository or its nominee, as the case may be, as
the registered owner of the global security representing such securities. None
of the Company, its officers and directors or any trustee, paying agent or
security registrar for an individual series of securities will have any
responsibility or liability for any aspect of the records
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relating to or payments made on account of beneficial ownership interests in the
global security for such securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
The Company expects that the depository for a series of securities offered
by means of this prospectus or its nominee, upon receipt of any payment of
principal, premium, interest, dividend or other amount in respect of a permanent
global security representing any of such securities, will immediately credit its
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such global security
for such securities as shown on the records of such depository or its nominee.
The Company also expects that payments by participants to owners of beneficial
interests in such global security held through such participants will be
governed by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in
"street name." Such payments will be the responsibility of such participants.
If a depository for a series of securities is at any time unwilling,
unable or ineligible to continue as depository and a successor depository is not
appointed by the Company within 90 days, the Company will issue individual
securities of such series in exchange for the global security representing such
series of securities. In addition, the Company may, at any time and in its sole
discretion, subject to any limitations described in the applicable prospectus
supplement relating to such securities, determine not to have any securities of
such series represented by one or more global securities and, in such event,
will issue individual securities of such series in exchange for the global
security or securities representing such series of securities.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
TO THE COMPANY OF ITS REIT ELECTION
GENERAL
The following discussion summarizes certain federal income tax
considerations to the Company. It is based on current law, and is for general
information only. It is not intended and should not be construed as tax advice.
The tax treatment of a holder of any of the securities offered under this
registration statement will vary depending upon the terms of the specific
securities acquired by such holder, as well as the holder's particular
situation, and this discussion does not attempt to address any aspects of
federal income taxation relating to holders of such securities. Certain federal
income tax considerations relevant to holders of the securities will be provided
in the applicable prospectus supplement relating to the issuance of such
securities.
The statements and opinions in this discussion are based on current
provisions of the Internal Revenue Code of 1986, as amended (which we sometimes
refer to as the "federal tax code" or the "Code" in this prospectus), existing,
temporary and currently proposed Treasury Regulations under the Code,
legislative history, existing administrative rulings and practices of the IRS
and judicial decisions. No assurance can be given that legislative, judicial or
administrative changes will not affect the accuracy of any of the following
statements. In addition, we have not requested and do not plan to request any
rulings from the IRS concerning our tax treatment. Accordingly, no assurance can
be given that the statements set forth herein (which do not bind the IRS or the
courts) will not be challenged by the IRS or sustained by the courts if so
challenged.
THIS DISCUSSION IS NOT INTENDED AS A SUBSTITUTE FOR CAREFUL TAX PLANNING.
EACH PROSPECTIVE INVESTOR IS ADVISED TO CONSULT WITH HIS OR HER OWN TAX ADVISOR
REGARDING THE SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF THE PURCHASE, OWNERSHIP
AND SALE OF THE OFFERED SECURITIES, INCLUDING THE FEDERAL, STATE, LOCAL, FOREIGN
AND OTHER TAX CONSEQUENCES OF SUCH PURCHASE, OWNERSHIP, AND SALE, AND OF
POTENTIAL CHANGES IN APPLICABLE TAX LAWS.
TAXATION OF THE COMPANY AS A REIT
GENERAL. Each of the Company's predecessor companies, New Plan Realty
Trust and Excel Realty Trust, Inc., elected to be taxed as a REIT under Sections
856 through 860 of the Internal Revenue Code, commencing with the year ended
July 31, 1972 for New Plan and the year ended December 31, 1987 for Excel. The
Company believes that the predecessor companies were organized and that the
predecessor companies and the Company, since the combination of the predecessor
companies, have been operating in a manner so as to qualify for taxation as
REITs under the Internal Revenue Code. We intend to continue to operate in such
a manner. No assurance, however, can be given that the Company will operate in a
manner so as to qualify or remain qualified as a REIT. Qualification and
taxation as a REIT depends upon our ability to meet, on a continuing basis,
several tests regarding sources of income, distribution levels and diversity of
stock ownership, among others tests imposed under the federal tax code on REITs,
some of which are summarized below. While we intend to operate so as to qualify
as a REIT, given the highly complex nature of the rules governing REITs, the
ongoing importance of factual determinations and the possibility of future
changes in our circumstances, no assurance can be given that we will so qualify
for any particular year. See "-- Failure to Qualify" below.
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In the opinion of Altheimer & Gray, our tax counsel ("Counsel"),
commencing with our taxable year ending December 31, 1987, and considering each
of New Plan and Excel, whose businesses were combined in September, 1998, we
were organized in conformity with the requirements for qualification as a REIT
under the federal tax code and our method of operation has enabled us to meet
the requirements for qualification as a REIT. Counsel's opinion is based on
various assumptions and is conditioned upon certain of our representations as to
factual matters. In addition, Counsel's opinion is based upon our factual
representations concerning our business and properties. Unlike a tax ruling, an
opinion of counsel is not binding upon the IRS and no assurance can be given
that the IRS will not challenge our status. Moreover, such qualification and
taxation as a REIT depends upon our continued ability to meet the various
qualification tests imposed under the federal tax code. Counsel will not review
our compliance with the various REIT qualification tests on a periodic or
continuing basis. Accordingly, no assurance can be given that the actual results
of our operation for any one taxable year will satisfy such requirements. See
"-- Failure to Qualify" below.
The following is a general summary of the federal tax code provisions that
govern the federal income tax treatment of a REIT. These provisions of the
federal tax code are highly technical and complex. This summary is qualified in
its entirety by the applicable provisions relating to REITs, Treasury
Regulations and their administrative and judicial interpretations, all of which
are subject to change, possibly with retroactive effect.
So long as we qualify for taxation as a REIT, we generally will not be
subject to federal corporate income tax on our net income that we distribute
currently to our stockholders. This treatment substantially eliminates the
"double taxation" (taxation at both the corporate and stockholder levels) that
generally results from an investment in a corporation. If we do not qualify as a
REIT, we would be taxed at rates applicable to corporations on all of our
income, whether or not distributed to our stockholders. Even if we qualify as a
REIT, we will be subject to federal income or excise tax as follows:
(i) we will be taxed at regular corporate rates on any undistributed REIT
taxable income and undistributed net capital gains other than retained
capital gains as discussed below;
(ii) under certain circumstances, we may be subject to the "alternative
minimum tax" on our items of tax preference, if any;
(iii) if we have (1) net income from the sale or other disposition of
"foreclosure property" (generally, property acquired by reason of a
foreclosure or otherwise on default of a loan secured by the property)
that is held primarily for sale to customers in the ordinary course of
business or (2) other nonqualifying net income from foreclosure property,
we will be subject to tax at the highest corporate rate on such income;
(iv) if we have net income from prohibited transactions (which are, in
general, certain sales or other dispositions of property (other than
dispositions of foreclosure property and dispositions of property that
occur due to involuntary conversion) held primarily for sale to customers
in the ordinary course of business), such income will be subject to a 100%
tax;
(v) if we should fail to satisfy the 75% gross income test or the 95%
gross income test (as discussed below), and nonetheless maintain our
qualification as a REIT because certain other requirements are met, we
will be subject to a 100% tax on the net income attributable to the
greater of the amount by which we fail the 75% or 95% test, multiplied by
a fraction intended to reflect our profitability;
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(vi) if we should fail to distribute with respect to each calendar year at
least the sum of (1) 85% of our REIT ordinary income for such year, (2)
95% of our REIT capital gain net income for such year, and (3) any
undistributed taxable income from prior years, we would be subject to a 4%
excise tax on the excess of such required distribution over the amounts
actually distributed; and
(vii) if we acquire any asset from a C corporation (i.e., generally a
corporation subject to full corporate-level tax) in a transaction in which
the basis of the asset in our hands is determined by reference to the
basis of the asset (or any other property) in the hands of the C
corporation and we subsequently recognize gain on the disposition of such
asset during the 10-year period (the "Recognition Period") beginning on
the date on which we acquired the asset (or we first qualified as a REIT),
then pursuant to guidelines issued by the IRS, the excess of (1) the fair
market value of the asset as of the beginning of the applicable
Recognition Period, over (2) our adjusted basis in such asset as of the
beginning of such Recognition Period (the "Built-In Gain") will be subject
to tax at the highest regular corporate rate (the "Built-In Gain Rule").
REQUIREMENTS FOR QUALIFICATION. The federal tax code defines a REIT as a
corporation, trust or association,
(1) that is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by transferable shares,
or by transferable certificates of beneficial interest;
(3) that would be taxable as a domestic corporation but for Sections 856
through 859 of the Internal Revenue Code;
(4) that is neither a financial institution nor an insurance company
subject to certain provisions of the Internal Revenue Code;
(5) that has the calendar year as its taxable year (unless it qualifies to
retain a different year under certain "grandfathered" rules.);
(6) the beneficial ownership of which is held by 100 or more persons;
(7) during the last half of each taxable year not more than 50% in value
of the outstanding stock of which is owned, directly or indirectly, by
five or fewer individuals (as defined in the Internal Revenue Code to
include certain entities); and
(8) that meets certain other tests, described below, regarding the nature
of its income and assets.
The Internal Revenue Code provides that conditions (1) through (5),
inclusive, must be met during the entire taxable year and that condition (6)
must be met during at least 335 days of a taxable year of 12 months, or during a
proportionate part of a taxable year of less than 12 months. For purposes of
conditions (6) and (7), pension funds and certain other tax-exempt entities are
treated as individuals, subject to a "look-through" exception in the case of
condition (7).
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We have satisfied conditions (6) and (7). In addition, our Charter
includes restrictions regarding the transfer of our Capital Stock that are
intended to assist us in continuing to satisfy the share ownership requirements
described in conditions (6) and (7) above. See "Restrictions on Ownership of
Capital Stock" below. In rendering its opinion that we are organized and
operating in conformity with the requirements for qualification as a REIT,
Counsel is relying on our representation that ownership of our stock satisfies
condition (7) and Counsel expresses no opinion as to whether the ownership
restrictions contained in the Charter assure that we will always satisfy
condition (7) above. In addition, we intend to continue to comply with the
Treasury Regulations requiring us to ascertain and maintain records which
disclose the actual ownership of our shares. Although a failure to ascertain the
actual ownership of our shares will not cause our disqualification as a REIT, a
monetary fine may result.
We have a number of "qualified REIT subsidiaries." A corporation that is a
"qualified REIT subsidiary" is not treated as a separate corporation for federal
income tax purposes, and all assets, liabilities and items of income, deduction
and credit of a "qualified REIT subsidiary" are treated as assets, liabilities
and items of the REIT. In applying the requirements described herein, any
"qualified REIT subsidiary" of ours will be ignored, and all assets, liabilities
and items of income, deduction and credit of such subsidiary will be treated as
our assets, liabilities and items of income, deduction and credit. Any
"qualified REIT subsidiary" of ours will therefore not be subject to federal
corporate income taxation, although such "qualified REIT subsidiary" may be
subject to state or local taxation.
In the case of a REIT that is a partner in a partnership, the REIT is
deemed to own its proportionate share of the assets of the partnership and is
deemed to receive the income of the partnership attributable to such share. In
addition, the character of the assets and gross income of the partnership shall
retain the same character in the hands of the REIT. Accordingly, our
proportionate share of the assets, liabilities and items of income of the
partnerships in which we are a partner are treated as assets, liabilities and
items of income of ours for purposes of applying the requirements described
herein. We have direct control of the partnerships in which we are a partner and
we have operated such partnerships and intend to continue to operate them in a
manner that is consistent with the requirements for qualification as a REIT.
INCOME TESTS. In order to maintain qualification as a REIT, a company must
satisfy two gross income requirements on an annual basis.
First, at least 75% of its gross income (excluding gross income from
prohibited transactions) for each taxable year must be derived directly or
indirectly from investments relating to real property or mortgages on real
property (including "rents from real property" and, in certain
circumstances, interest) or from certain types of temporary investments.
Second, at least 95% of its gross income (excluding gross income from
prohibited transactions) for each taxable year must be derived from the
same items which qualify under the 75% gross income test, and from
dividends, interest and gain from the sale or disposition of stock or
securities, or from any combination of the foregoing.
Rents received by a REIT will qualify as "rents from real property" in
satisfying the gross income requirements described above only if several
conditions are met. First, the amount of rent must not be based in whole or in
part on the income or profits of any person. However, an amount received or
accrued generally will not be excluded from the term "rents from real property"
solely by reason of being based on a fixed percentage or percentages of gross
receipts or sales. Second, rents received from a tenant will not qualify as
"rents from real property" in satisfying the gross income tests if the REIT, or
a
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direct or indirect owner of 10% or more of the REIT, directly or constructively,
owns 10% or more of such tenant (a "Related Party Tenant"). Third, if rent
attributable to personal property, leased in connection with a lease of real
property, is greater than 15% of the total rent received under the lease, then
the portion of rent attributable to such personal property will not qualify as
"rents from real property." Finally, for rents received with respect to a
property to qualify, as "rents from real property," the REIT generally must not
operate or manage the property or furnish or render services to tenants, except
through an "independent contractor" who is adequately compensated and from whom
the REIT derives no revenue. The "independent contractor" requirement, however,
does not apply to the extent the services provided by the REIT are "usually or
customarily rendered" in connection with the rental of space for occupancy only
and are not otherwise considered "rendered to the occupant." However, a de
minimis rule may apply to certain non-customary services provided by a REIT.
Specifically, if the value of the non-customary service income with respect to a
property (valued at no less than 150% of the direct costs of performing such
services) is 1% or less of the total income derived from the property, then all
rental income except the non-customary service income will qualify as "rents
from real property."
We do not and will not charge rent that is based in whole or in part on
the income or profits of any person (except by reason of being based on a fixed
percentage or percentages of gross receipts or sales consistent with the rules
described above). We do not and will not rent any property to a Related Party
Tenant. We do not and will not derive rental income attributable to personal
property leased in connection with real property which exceeds 15% of the total
rents received with respect to such property.
Except for certain development, property management, administrative and
miscellaneous services, we do not and will not perform services which are not
usually or customarily rendered in connection with the rental of space for
occupancy only or which are considered to be rendered to the occupant of the
property, other than through an independent contractor from whom we derive no
revenue. Income derived from the development, property management,
administrative and miscellaneous services described in the preceding sentence
does not exceed 5% of our gross revenue. Excel Development Corporation ("EDV")
performs activities that cannot be performed by us, as fees relating to those
activities would not qualify as "good income" under the 75% and 95% tests. We
will derive dividends from EDV, which qualify under the 95% gross income test,
but not the 75% gross income test. We believe that the aggregate amount of any
nonqualifying income in any taxable year has not exceeded and will not exceed
the limit on nonqualifying income under the gross income test.
If we fail to satisfy one or both of the 75% or the 95% gross income tests
for any taxable year, we may nevertheless qualify as a REIT for such year if we
are entitled to relief under certain provisions of the Internal Revenue Code.
These relief provisions generally will be available if our failure to meet any
such tests was due to reasonable cause and not due to willful neglect, we attach
a schedule of the sources and nature of our income to our federal income tax
return and any incorrect information on the schedule was not due to fraud with
the intent to evade tax. It is not possible, however, to state whether in all
circumstances we would be entitled to the benefit of these relief provisions. As
discussed above, even if these relief provisions were to apply, a tax would be
imposed on certain excess net income.
SALES OR DISPOSITIONS OF ASSETS. As a REIT, we are subject to a tax of
100% on gain (i.e., the excess, if any, of the amount realized over our adjusted
basis in the property) from each sale of property (excluding, certain property
obtained through foreclosure) in which we are a dealer. In calculating its gain
subject to the 100% tax, we are not allowed to offset gains on sales of property
with losses on other sales of property in which we are a dealer.
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Under the Internal Revenue Code, we would be deemed to be a dealer in any
property that we hold primarily for sale to customers in the ordinary course of
our business. Such determination is a factual inquiry, and absolute certainty of
our status generally cannot be provided. However, we will not be treated as a
dealer in real property for the 100% tax if (i) we have held the property for at
least four years for the production of rental income, (ii) capitalized
expenditures on the property in the four years preceding sale are less than 30%
of the net selling price of the property, and (iii) we either (a) have seven or
fewer sales of property (excluding certain property obtained through
foreclosure) for the year of sale or (b) the aggregate tax basis of property
sold during the year of sale is 10% or less of the aggregate tax basis of all of
our assets as of the beginning of the taxable year and substantially all of the
marketing and development expenditures with respect to the property sold are
made through an independent contractor from whom we derive no income. The sale
of more than one property to one buyer as part of one transaction constitutes
one sale. However, our failure to meet these "safe harbor" requirements does not
necessarily mean that we are a dealer in real property.
Based on these rules, if we sell a property that we have held for more
than four years and otherwise satisfy the "safe harbor" described in the
preceding paragraph, such sale will not result in the imposition of the 100% tax
on the gain. Because any dealer gain that is not covered by the safe harbor is
subject to the 100% tax, any sale not covered by the safe harbor creates a risk
that we will be considered to be a dealer in real property. Although any risk
from a single isolated sale may be small, the more regular, continuous, and
frequent our sales of assets are, the more likely we will be treated as a dealer
with respect to sales or dispositions of real property. Moreover, except for
certain sales of property obtained through foreclosure, all sales, including
sales of property held less than fours years, count toward the seven sales/10%
tax basis safe harbor for purposes of determining whether we qualify for the
safe harbor on any sales of property held for four years or more. Furthermore,
one we have exceeded the seven sales/10% tax basis safe harbor, gain from all
sales and not just the gain from sales in excess of such safe harbor are
potentially subject to the 100% tax.
We may be able to avoid triggering gain for purposes of the 100% tax on
real property we have held less than four years if we exchange such property for
other property in a transaction that qualifies as a like-kind exchange under the
Internal Revenue Code, because the like-kind exchange provisions result in the
deferral of gain. The like-kind exchange provisions of the Code, however, are
not available to us on any property that we hold primarily for sale rather than
for investment or the production of income. An exchange of property for tax
purposes that does not qualify for like-kind exchange treatment or some other
nonrecognition provision is treated the same as a sale for cash. We may dispose
of certain properties that we have held less than four years in transactions
intended to qualify as like-kind exchanges. However, the failure of the
transaction to qualify as a like-kind exchange could subject us to the 100% tax
on its gains, as described above.
ASSETS TESTS. At the close of each quarter of its taxable year, a REIT
must also satisfy three tests relating to the nature of its assets:
(i) at least 75% of the value of its total assets must be represented
by real estate assets (including (1) its allocable share of real estate
assets held by partnerships in which it has an interest and (2) stock or
debt instruments purchased with the proceeds of a stock offering on
long-term (at least five years) debt offering of the REIT and held for not
more than one year following the receipt of such proceeds), cash, cash
items and government securities;
(ii) not more than 25% of its total assets may be represented by
securities other than those in the 75% asset class; and
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(iii) of the investments included in the 25% asset class, the value of
any one issuer's securities (other than an interest in a partnership or
shares of a "qualified REIT subsidiary" or another REIT) owned by a REIT
may not exceed 5% of the value of its total assets, and it may not own
more than 10% of any one issuer's outstanding voting securities (other
than an interest in a partnership or securities of a "qualified REIT
subsidiary" or another REIT).
ANNUAL DISTRIBUTION REQUIREMENTS. In order to qualify as a REIT, a company
is required to distribute dividends (other than capital gain dividends) to its
stockholders in an amount at least equal to (i) the sum of (1) 95% of its "REIT
taxable income" (computed without regard to the dividends paid deduction and net
capital gain) and (2) 95% of its net income (after tax), if any, from
foreclosure property, minus (ii) the sum of certain items of noncash income. In
addition, if a REIT disposes of any asset subject to the Built-In Gain Rule
during its Recognition Period, it is required to distribute at least 95% of the
Built-In Gain (after payment of a corporate level tax), if any, recognized on
the disposition. Such distributions must be paid during the taxable year to
which they relate (or during the following taxable year, if declared before the
REIT timely files its tax return for the preceding year and paid on or before
the first regular dividend payment after such declaration). To the extent that a
REIT does not distribute all of its net capital gain or distributes at least
95%, but less than 100%, of its "REIT taxable income," as adjusted, it will be
subject to tax on the undistributed amount at regular corporate capital gains
rates and ordinary corporate tax rates. Furthermore, if a REIT fails to
distribute during each calendar year at least the sum of (i) 85% of its REIT
ordinary income for such year, (ii) 95% of its REIT capital gain income for such
year and (iii) any undistributed taxable income from prior periods, it will be
subject to a 4% excise tax on the excess of such amounts over the amounts
actually distributed.
We intend to make timely distributions sufficient to satisfy the annual
distribution requirements. In this regard, it is expected that our REIT taxable
income will be less than our cash flow due to the allowance of depreciation and
other noncash charges in our computation of REIT taxable income. It is possible,
however, that, from time to time, we may not have sufficient cash or other
liquid assets to meet the 95% distribution requirement due to timing differences
between the actual receipt of income and the actual payment of deductible
expenses and the inclusion of such income and deduction of such expenses in
arriving at our REIT taxable income, or due to any cash expenditures or
nondeductible expenses such as principal amortization or capital expenditures.
In the event that such circumstances do occur, we may find it necessary to
arrange for short-term, or possibly long-term, borrowings to permit the payment
of dividends to meet the 95% distribution requirement.
Under certain circumstances, we may be able to rectify a failure to meet
the distribution requirement for a year by paying "deficiency dividends" to
stockholders in a later year that may be included in our deduction for dividends
paid for the earlier year. Thus, we may be able to avoid being taxed on amounts
distributed as deficiency dividends. However, we would be required to pay to the
IRS interest based upon the amount of any deduction taken for deficiency
dividends.
FAILURE TO QUALIFY. If we fail to qualify for taxation as a REIT in any
taxable year and special relief provisions do not apply, we will be subject to
tax (including any applicable alternative minimum tax) on our taxable income at
regular corporate rates. Payment of such corporate tax liability would
substantially reduce the cash available for distributions to stockholders.
Distributions to stockholders in any year in which we fail to qualify as a REIT
will not be deductible, nor will they be required to be made. In such event, to
the extent of current and accumulated earnings and profits, all distributions to
our stockholders will be taxable as ordinary income and, subject to certain
limitations in the Internal Revenue Code, corporate distributees may be eligible
for the "dividends received deduction." Unless
56
<PAGE> 60
entitled to relief under specific statutory provisions, we also would be
disqualified from taxation as a REIT for the four taxable years following the
year during which qualification was lost. It is not possible to state whether in
all circumstances we would be entitled to such statutory relief.
57
<PAGE> 61
PLAN OF DISTRIBUTION
The Company may sell securities offered by means of this prospectus to one
or more underwriters for public offering and sale by them or may sell such
securities to investors directly or through agents. Any such underwriter or
agent involved in the offer and sale of such securities will be named in the
prospectus supplement relating to the securities.
Underwriters may offer and sell securities offered by means of this
prospectus at a fixed price or prices, which may be changed, at prices related
to the prevailing market prices at the time of sale or at negotiated prices. The
Company also may, from time to time, authorize underwriters acting as the
Company's agents to offer and sell securities by means of this prospectus upon
the terms and conditions as are set forth in the prospectus supplement relating
to such securities. In connection with a sale of securities offered by means of
this prospectus, underwriters may be deemed to have received compensation from
the Company in the form of underwriting discounts or commissions and may also
receive commissions from purchasers of securities for whom they may act as
agent. Underwriters may sell securities offered by means of this prospectus to
or through dealers, and such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of securities offered by means of this
prospectus, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable
prospectus supplement. Underwriters, dealers and agents participating in the
distribution of the offered securities may be deemed to be underwriters, and any
discounts or commissions received by them and any profit realized by them upon
the resale of the offered securities may be deemed to be underwriting discounts
and commissions, under the Securities Act. Underwriters, dealers and agents may
be entitled, under agreements entered into with the Company, to indemnification
against and contribution toward certain civil liabilities, including liabilities
under the Securities Act.
If so indicated in a prospectus supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain institutional
investors to purchase securities of the series to which such prospectus
supplement relates providing for payment and delivery on a future date specified
in such prospectus supplement. There may be limitations on the minimum amount
which may be purchased by any such institutional investor or on the portion of
the aggregate principal amount of the particular offered securities which may be
sold pursuant to such arrangements. Institutional investors to which such offers
may be made, when authorized, include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and such other institutions as may be approved by the Company. The
obligations of any such purchasers pursuant to such delayed delivery and payment
arrangements will not be subject to any conditions except that (i) the purchase
by an institution of the particular securities offered shall not at the time of
delivery be prohibited under the laws of any jurisdiction in the United States
to which such institution is subject, and (ii) if the particular securities are
being sold to underwriters, the Company shall have sold to such underwriters the
total principal amount of such securities or number of warrants less the
principal amount or number thereof, as the case may be, covered by such
arrangements. Underwriters will not have any responsibility in respect of the
validity of such arrangements or the performance of the Company or such
institutional investors thereunder.
The Company may agree to sell securities to an underwriter for a delayed
public offering and may further agree to adjustments before the public offering
to the underwriters' purchase price for the
58
<PAGE> 62
securities based on changes in the market value of the securities. The
prospectus supplement relating to any such public offering will contain
information on the number of securities to be sold, the manner of sale or other
distribution, and other material facts relating to the public offering.
Certain of the underwriters and their affiliates may be customers of,
engage in transactions with and perform services for the Company and its
subsidiaries in the ordinary course of business.
EXPERTS
The consolidated balance sheets of Excel Realty Trust, Inc. as of December
31, 1997 and 1996 and the related consolidated statements of income, of changes
in stockholders' equity and of cash flows and the consolidated financial
statement schedules for each of the three years in the period ended December 31,
1997, incorporated by reference in this Prospectus have been incorporated herein
in reliance on the report of PricewaterhouseCoopers LLP, independent auditors,
given on the authority of that firm as experts in accounting and auditing.
The consolidated balance sheets of New Plan Realty Trust as of July 31,
1998 and 1997 and the related consolidated statements of income of changes in
shareholders' equity and of cash flows and the consolidated financial statement
schedules for each of the three years in the period ended July 31, 1998,
incorporated by reference in this Prospectus have been incorporated herein in
reliance on the report of PricewaterhouseCoopers LLP, independent auditors,
given on the authority of that firm as experts in accounting and auditing.
The Historical Summary of Operating Revenues and Direct Operating Expenses
of the properties acquired by Excel Realty Trust, Inc. for the year ended
December 31, 1997, covered by the report of Squire & Co., PC, independent
auditors, dated March 5, 1998, have been incorporated herein by reference in
reliance on said report given on the authority of said firm as experts in
accounting and auditing.
The Historical Summary of Operating Revenues and Direct Operating Expenses
of the properties acquired by Excel Realty Trust, Inc. for the year ended
December 31, 1997, covered by the report of Squire & Co., PC, independent
auditors, dated June 12, 1998, have been incorporated herein by reference in
reliance on said report given on the authority of said firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the securities offered by means of this prospectus has
been passed upon for the Company by Hogan & Hartson L.L.P., New York, New York.
The description of the federal income tax considerations contained in this
prospectus is based upon the opinion of Altheimer & Gray, Chicago, Illinois.
59
<PAGE> 63
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated expenses, other than underwriting discounts and commissions,
in connection with the offerings of the offered securities are as follows:
<TABLE>
<CAPTION>
<S> <C>
Securities Act Registration Fee $ 248,454
Rating Agency Fees 150,000
"Blue Sky" Fees and Expenses (including counsel fees) 15,000
Printing and Engraving Expenses. 225,000
Legal Fees and Expenses (other than Blue Sky fees) 300,000
Accounting Fees and Expenses 150,000
Trustee's Fees (including counsel fees) 25,000
Miscellaneous 36,546
------------------
Total $1,150,000
==================
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Charter and Bylaws of New Plan Excel Realty Trust, Inc. (the
"Company") require the Company to indemnify its directors, officers and certain
other persons to the fullest extent permitted from time to time by Maryland law.
The Maryland General Corporation Law permits a corporation to indemnify its
directors, officers and certain other persons against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by them in
connection with any proceeding to which they may be made a party by reason of
their service to or at the request of the corporation, unless it is established
that the act or omission of the indemnified party was material to the matter
giving rise to the proceedings and (i) was committed in bad faith or was the
result of active and deliberate dishonesty, (ii) the indemnified party actually
received an improper personal benefit, or (iii) in the case of any criminal
proceeding the indemnified party had reasonable cause to believe that the act or
omission was unlawful. Indemnification may be made against judgments, penalties,
fines, settlements and reasonable expenses actually incurred by the director or
officer in connection with the proceeding; provided, however, that if the
proceeding is one by or in the right of the corporation, indemnification may not
be made with respect to any proceeding in which the director or officer has been
adjudged to be liable to the corporation. In addition, a director or officer may
not be indemnified with respect to any proceeding charging improper personal
benefit to the director or officer in which the director or officer was adjudged
to be liable on the basis that personal benefit was improperly received. The
termination of any proceeding by conviction, or upon a plea of nolo contendere
or its equivalent, or an entry of any order of probation prior to judgment,
creates a rebuttal presumption that the director or officer did not meet the
requisite standard of conduct required for indemnification to be permitted.
The Declaration of Trust of New Plan Realty Trust (the "Trust") provides
in substance that no trustee or officer is liable to the Trust, to a shareholder
or to third persons except for his own willful misconduct, bad faith, gross
negligence or reckless disregard of his duties. The Declaration of Trust further
provides in substance that, with the exceptions stated above, a trustee or
officer is entitled to be indemnified against all liability incurred in
connection with the affairs of the Trust. The Declaration of Trust also provides
that no trustee will be personally liable to the Trust or its shareholders for
monetary damages for breach of fiduciary duty as a trustee notwithstanding any
provision of law imposing such liability, except for liability (i) for any
breach of the
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<PAGE> 64
trustee's duty of loyalty to the Trust or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for obtaining an improper benefit, or (iv) for paying a
dividend or making a distribution to shareholders or a loan to officers or
trustees which is illegal under the Massachusetts Business Corporation Law. In
addition, the Declaration of Trust authorizes the trustees of the Trust to
purchase and pay for liability insurance to indemnify the trustees and officers
against certain claims and liabilities.
ITEM 16. EXHIBITS
The exhibits to this Registration Statement are listed in the Exhibit
Index, which appears immediately after the signature page and is incorporated
herein by reference.
ITEM 17. UNDERTAKINGS
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales or other
distributions of their respective securities are being made under this
registration statement, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in this registration statement;
provided, however, that subparagraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the SEC by the Registrant or Registrants pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrants hereby further undertake that, for the
purposes of determining any liability under the Securities Act, each filing of
an annual report of a Registrant pursuant to Section 13(a) or Section 15(d)
II-2
<PAGE> 65
of the Exchange Act that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, trustees, officers and controlling persons of
the Registrants pursuant to existing provisions or otherwise, the Registrants
have been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by a Registrant of expenses incurred or paid
by a director, trustee, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, trustee, officer or controlling person in connection with the
securities being registered, each Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 66
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
undersigned Registrants certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on November 18,
1998.
NEW PLAN EXCEL REALTY TRUST, INC.
By: /s/ Arnold Laubich
------------------------------------
Arnold Laubich
Chief Executive Officer
NEW PLAN REALTY TRUST
By: /s/ Arnold Laubich
------------------------------------
Arnold Laubich
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below hereby constitutes and appoints William Newman or Arnold Laubich his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this registration statement, and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or either of them, or his or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following officers and
directors or trustees of the Registrants in the capacities and on the dates
indicated. Each officer holds the same office in each Registrant. Directors are
directors of the Company. Trustees are trustees of New Plan Realty Trust.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ William Newman Chairman of the Board of November 18, 1998
------------------------------- Directors and Board of Trustees
William Newman
/s/ Arnold Laubich Chief Executive Officer, November 18, 1998
------------------------------- Director and Trustee
Arnold Laubich
/s/ Gary B. Sabin President, Chairman of November 18, 1998
------------------------------- Investment Committee,
Gary B. Sabin Director and Trustee
</TABLE>
II-4
<PAGE> 67
<TABLE>
<S> <C> <C>
/s/ James M. Steuterman Executive Vice President, November 18, 1998
------------------------------- Co-Chief Operating Officer,
James M. Steuterman Director and Trustee
/s/ Richard B. Muir Executive Vice President, November 18, 1998
------------------------------- Co-Chief Operating Officer,
Richard B. Muir Director and Trustee
/s/ David A. Lund Chief Financial Officer November 18, 1998
-------------------------------
David A. Lund
/s/ Dean Bernstein Senior Vice President-- November 18, 1998
------------------------------- Finance and Multifamily,
Dean Bernstein Director and Trustee
/s/ Raymond H. Bottorf Director and Trustee November 18, 1998
-------------------------------
Raymond H. Bottorf
/s/ Norman Gold Director and Trustee November 18, 1998
-------------------------------
Norman Gold
/s/ Boyd A. Lindquist Director and Trustee November 18, 1998
-------------------------------
Boyd A. Lindquist
/s/ Melvin Newman Director and Trustee November 18, 1998
-------------------------------
Melvin Newman
/s/ Robert E. Parsons, Jr. Director and Trustee November 18, 1998
-------------------------------
Robert E. Parsons, Jr.
/s/ Bruce A. Staller Director and Trustee November 18, 1998
-------------------------------
Bruce A. Staller
/s/ John Wetzler Director and Trustee November 18, 1998
-------------------------------
John Wetzler
/s/ Gregory White Director and Trustee November 18, 1998
-------------------------------
Gregory White
/s/ John H. Wilmot Director and Trustee November 18, 1998
-------------------------------
John H. Wilmot
</TABLE>
II-5
<PAGE> 68
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
1.01 Form of Underwriting Agreement for Debt Securities (incorporated by
reference to Exhibit 1.01 to the Company's Registration Statement on
Form S-3 (No. 033-59195) filed on May 9, 1995)
1.02 Form of Underwriting Agreement for Equity Securities (incorporated
by reference to Exhibit 1.01 to the Company's Registration Statement
on Form S-3 (No. 033-59195) filed on May 9, 1995)
3.01 Amended Charter of the Company (incorporated by reference to Exhibit
4.4 to the Company's Registration Statement on Form S-3 (No.
333-65211) filed on October 1, 1998)
3.02 Amended and Restated Bylaws of the Company (incorporated by
reference to Exhibit 4.6 to the Company's Registration Statement on
Form S-3 (No. 333-65211) filed on October 1, 1998)
3.03 Declaration of Trust of New Plan Realty Trust (incorporated by
reference to Exhibit 99.3, Amended and Restated Declaration of
Trust, to the Trust's Current Report on Form 8-K dated May 24, 1996
and Exhibit 3.2, Certificate of Amendment of Amended and Restated
Declaration of Trust, to the Trust's Form 10-K filed October 29,
1998)
4.01 Form of Senior Debt Securities Indenture
4.02 Form of Subordinated Debt Securities Indenture
4.03 Form of Deposit Agreement for Depositary Shares
4.04 Form of Equity Warrant Agreement
4.05 Form of Debt Warrant Agreement
4.06* Form of Rights Agreement
5.01 Opinion of Hogan & Hartson L.L.P.
8.01 Opinion of Altheimer & Gray regarding tax matters
12.01 Calculations of Ratios
23.01 Consent of PricewaterhouseCoopers LLP
23.02 Consents of Squire & Co.
23.03 Hogan & Hartson L.L.P. (included in Exhibit 5)
23.04 Consent of Altheimer & Gray (included in Exhibit 8)
24.01 Powers of Attorney (included on signature page)
25.01* Statement of Eligibility of Trustee on Form T-1
* To be filed by amendment or incorporated by reference in connection with the
offering of specific securities.
II-6
<PAGE> 1
EXHIBIT 4.01
NEW PLAN EXCEL REALTY TRUST, INC.,
as Primary Obligor,
AND
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
INDENTURE
Dated as of _______ __, 199_
Senior Securities
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<S> <C>
SECTION 101. Definitions.................................................................................2
Acquired Indebtedness....................................................................................3
Act .....................................................................................................3
Additional Amounts.......................................................................................3
Affiliate................................................................................................3
Authenticating Agent.....................................................................................3
Authorized Newspaper.....................................................................................3
Bankruptcy Law...........................................................................................3
Bearer Security..........................................................................................3
Board of Directors.......................................................................................4
Board Resolution.........................................................................................4
Business Day.............................................................................................4
CEDEL....................................................................................................4
Commission...............................................................................................4
Common Shares............................................................................................4
Company..................................................................................................4
Company Request..........................................................................................4
Company Order............................................................................................4
Consolidated Income Available for Debt Service...........................................................4
Consolidated Net Income..................................................................................5
Conversion Event.........................................................................................5
Corporate Trust Office...................................................................................5
corporation..............................................................................................5
coupon...................................................................................................5
Custodian................................................................................................5
Debt.....................................................................................................5
Defaulted Interest.......................................................................................6
Dollar...................................................................................................6
"$" .....................................................................................................6
ECU......................................................................................................6
Euroclear................................................................................................6
European Monetary System.................................................................................6
Event of Default.........................................................................................6
Foreign Currency.........................................................................................6
GAAP.....................................................................................................6
Government Obligations...................................................................................6
Guarantee................................................................................................7
Guarantor................................................................................................7
Holder...................................................................................................7
Indenture................................................................................................7
</TABLE>
- i -
<PAGE> 3
<TABLE>
<S> <C>
Indexed Security.........................................................................................7
interest.................................................................................................7
Interest Payment Date....................................................................................7
Make-Whole Amount........................................................................................7
Maturity.................................................................................................8
Maximum Annual Service Charge............................................................................8
Officers' Certificate....................................................................................8
Opinion of Counsel.......................................................................................9
Original Issue Discount Security.........................................................................9
Outstanding..............................................................................................9
Paying Agent.............................................................................................9
Person...................................................................................................9
Place of Payment.........................................................................................10
Predecessor Security.....................................................................................10
Preferred Shares.........................................................................................10
Recourse Indebtedness....................................................................................10
Redemption Date..........................................................................................10
Redemption Price.........................................................................................10
Registered Security......................................................................................10
Regular Record Date......................................................................................10
Reinvestment Rate........................................................................................10
Repayment Date...........................................................................................11
Repayment Price..........................................................................................11
Responsible Officer......................................................................................11
Secured Debt.............................................................................................11
Security.................................................................................................11
Security Register........................................................................................12
Security Registrar.......................................................................................12
Significant Subsidiary...................................................................................12
Special Record Date......................................................................................12
Stated Maturity..........................................................................................12
Statistical Release......................................................................................12
Subsidiary...............................................................................................12
Total Assets.............................................................................................12
Trust Indenture Act......................................................................................12
TIA......................................................................................................12
Trustee..................................................................................................12
Undepreciated Real Estate Assets.........................................................................13
Unencumbered Total Asset Value...........................................................................13
United States............................................................................................13
United States person.....................................................................................13
Yield to Maturity........................................................................................13
SECTION 102. Compliance Certificates and Opinions.......................................................13
SECTION 103. Form of Documents Delivered to Trustee.....................................................14
SECTION 104. Acts of Holders............................................................................14
</TABLE>
- ii -
<PAGE> 4
<TABLE>
<S> <C>
SECTION 105. Notices, etc., to Trustee and Company......................................................16
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......................................................................18
SECTION 111. Governing Law..............................................................................18
SECTION 112. Legal Holidays.............................................................................18
ARTICLE TWO SECURITIES FORMS
SECTION 202. Form of Trustee's Certificate of Authentication............................................18
SECTION 203. Securities Issuable in Global Form.........................................................19
ARTICLE THREE THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.......................................................20
SECTION 302. Denominations..............................................................................23
SECTION 303. Execution, Authentication, Delivery and Dating.............................................24
SECTION 304. Temporary Securities.......................................................................26
SECTION 305. Registration, Registration of Transfer and Exchange........................................28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...........................................31
SECTION 307. Payment of Interest; Interest Rights Preserved.............................................33
SECTION 308. Persons Deemed Owners......................................................................35
SECTION 309. Cancellation...............................................................................35
SECTION 310. Computation of Interest....................................................................36
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................................................37
SECTION 402. Application of Trust Funds.................................................................38
ARTICLE FIVE REMEDIES
SECTION 501. Events of Default..........................................................................37
SECTION 502. Acceleration of Maturity; Rescission and Annulment.........................................39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee...............................................................................................40
SECTION 504. Trustee May File Proofs of Claim...........................................................41
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................................................................42
SECTION 506. Application of Money Collected.............................................................42
SECTION 507. Limitation on Suits........................................................................42
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts......................................................43
</TABLE>
- iii -
<PAGE> 5
<TABLE>
<S> <C>
SECTION 509. Restoration of Rights and Remedies.........................................................43
SECTION 510. Rights and Remedies Cumulative.............................................................44
SECTION 511. Delay or Omission Not Waiver...............................................................44
SECTION 512. Control by Holders of Securities...........................................................44
SECTION 513. Waiver of Past Defaults....................................................................44
SECTION 514. Waiver of Usury, Stay or Extension Laws....................................................44
SECTION 515. Undertaking for Costs......................................................................45
ARTICLE SIX THE TRUSTEE
SECTION 601. Notice of Defaults.........................................................................45
SECTION 602. Certain Rights of Trustee..................................................................45
SECTION 603. Not Responsible for Recitals or Issuance of Securities.....................................47
SECTION 604. May Hold Securities........................................................................47
SECTION 605. Money Held in Trust........................................................................47
SECTION 606. Compensation and Reimbursement.............................................................47
SECTION 607. Eligibility of Trustee; Conflicting Interests..............................................48
SECTION 608. Resignation and Removal; Appointment of Successor..........................................48
SECTION 609. Acceptance of Appointment by Successor.....................................................50
SECTION 610. Merger, Conversion, Consolidation or Succession to Business................................51
SECTION 611. Appointment of Authenticating Agent........................................................51
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders...............................................53
SECTION 702. Reports by Trustee.........................................................................53
SECTION 703. Reports by Company.........................................................................53
SECTION 704. Company to Furnish Trustee Names and Addresses of
Holders...............................................................................................54
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...............................................54
SECTION 802. Rights and Duties of Successor Corporation.................................................54
SECTION 803. Officers' Certificate and Opinion of Counsel...............................................55
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.........................................55
SECTION 902. Supplemental Indentures with Consent of Holders............................................57
SECTION 903. Execution of Supplemental Indentures.......................................................58
SECTION 904. Effect of Supplemental Indentures..........................................................68
</TABLE>
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<TABLE>
<S> <C>
SECTION 905. Conformity with Trust Indenture Act........................................................58
SECTION 906. Reference in Securities to Supplemental Indentures.........................................58
ARTICLE TEN COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, Interest and
Additional Amounts....................................................................................58
SECTION 1002. Maintenance of Office or Agency...........................................................59
SECTION 1003. Money for Securities Payments to Be Held in Trust.........................................60
SECTION 1004. Limitations on Incurrence of Debt.........................................................62
SECTION 1005. Existence.................................................................................63
SECTION 1006. Maintenance of Properties.................................................................63
SECTION 1007. Insurance.................................................................................63
SECTION 1008. Payment of Taxes and Other Claims.........................................................63
SECTION 1009. Provision of Financial Information........................................................64
SECTION 1010. Statement as to Compliance................................................................64
SECTION 1011. Additional Amounts........................................................................64
SECTION 1012. Waiver of Certain Covenants...............................................................65
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..................................................................66
SECTION 1102. Election to Redeem; Notice to Trustee.....................................................66
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.........................................66
SECTION 1104. Notice of Redemption......................................................................66
SECTION 1105. Deposit of Redemption Price...............................................................68
SECTION 1106. Securities Payable on Redemption Date.....................................................68
SECTION 1107. Securities Redeemed in Part...............................................................69
ARTICLE TWELVE SINKING FUNDS
SECTION 1201. Applicability of Article..................................................................69
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.....................................69
SECTION 1203. Redemption of Securities for Sinking Fund.................................................70
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article..................................................................70
SECTION 1302. Repayment of Securities...................................................................70
SECTION 1303. Exercise of Option........................................................................71
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable...............................................................................................71
SECTION 1305. Securities Repaid in Part.................................................................72
</TABLE>
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ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
<TABLE>
<S> <C>
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.....................................................................72
SECTION 1402. Defeasance and Discharge..................................................................72
SECTION 1403. Covenant Defeasance.......................................................................72
SECTION 1404. Conditions to Defeasance or Covenant Defeasance...........................................73
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions..............................................................74
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.................................................76
SECTION 1502. Call, Notice and Place of Meetings........................................................76
SECTION 1503. Persons Entitled to Vote at Meetings......................................................76
SECTION 1504. Quorum; Action............................................................................76
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings...........................................................................................77
SECTION 1506. Counting Votes and Recording Action of Meetings...........................................78
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES..................................................................................79
SECTION 1601. Guarantee.................................................................................79
SECTION 1602. Execution and Delivery of Guarantee.......................................................81
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
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RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939 (THE "1939 ACT") AND INDENTURE
<TABLE>
<CAPTION>
1939 Act Section Indenture Section
<S> <C>
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
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act, which
provides that the provisions of Sections 310 to and including 317 of the 1939
Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
<PAGE> 9
INDENTURE, dated as of ____________ __, 199_, between NEW PLAN EXCEL
REALTY TRUST, INC., a Maryland corporation, as primary obligor (hereinafter
called the "Company"), having its principal office at 1120 Avenue of the
Americas, New York, New York 10036; STATE STREET BANK AND TRUST, N.A., a
national banking association organized under the laws of the United States of
America, as trustee (hereinafter called the "Trustee"), having its Corporate
Trust Office at _____________________; and any Person becoming a Guarantor
hereunder.
RECITALS
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 and each Guarantor, if any, 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;
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<PAGE> 10
(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.
"Acquired Indebtedness" means Debt of a Person (i) existing at the time
the Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from the Person, in each case, other than Debt incurred
in connection with, or in contemplation of, the Person becoming a Subsidiary or
that acquisition. Acquired Indebtedness shall be deemed to be incurred on the
date of the related acquisition of assets from any Person or the date the
acquired Person becomes a Subsidiary.
"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.
"Adjusted Total Assets" has the meaning specified in Section 1004(a).
"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.
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<PAGE> 11
"Board of Directors" means the board of directors 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 Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other 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, (e) the effect of any noncash charge resulting from a change in
accounting principles in determining Consolidated Net Income for such period,
(f) provisions for losses from sales or joint ventures, (g) increases in
deferred taxes and other non-cash items and (h) charges for early
extinguishment of debt, and less amounts which have been added in determining
Consolidated Net Income for such period for (i) provisions for gains from sales
or joint ventures and (ii) decreases in deferred taxes and other non-cash
items.
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<PAGE> 12
"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
[_________________________] and, for purposes of the Place of Payment
provisions of Section 1002, is located at
[_______________________________________].
"corporation" includes corporations, limited partnerships, limited
liability companies, companies, real estate investment trusts 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 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) reimbursement obligations, contingent or otherwise, in
connection with any 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 reimbursement obligations in
connection with 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 that would appear as a liability on such Person's consolidated
balance sheet in accordance with GAAP (other than the Company or any
Subsidiary) (it being understood that "Debt" shall be deemed to be incurred by
the Company and its Subsidiaries on a consolidated basis whenever the Company
and its Subsidiaries on a consolidated basis create, assume, guarantee or
otherwise become liable in respect thereof; Debt of a Subsidiary of the Company
existing prior to the time it becomes a Subsidiary of the Company shall be
deemed to be incurred upon such Subsidiary's becoming a Subsidiary of the
Company; and Debt of a Person existing prior to a merger or consolidation of
such Person with the Company or any Subsidiary of the Company in which such
Person is the successor of the
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<PAGE> 13
Company or such Subsidiary shall be deemed to be incurred upon the consummation
of such merger or consolidation).
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit or its successor currency as
defined and revised from time to time by the European Union.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Monetary System" means the European Monetary System established
by the European Union.
"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 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,
provided that, solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" means generally accepted accounting
principles, as in effect on the date hereof, as used in the United States
applied on a consistent basis.
"Government Obligations" means securities which are (i) direct obligations
of the United States 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 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 or such
other government, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of any
such Government Obligation held by such custodian for the account of the holder
of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to
the holder of such depository receipt from any amount received by the custodian
in respect of the Government Obligation or the specific payment of interest on
or principal of the Government Obligation evidenced by such depository receipt.
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<PAGE> 14
"Guarantee" has the meaning set forth in Article Sixteen hereof.
"Guarantor" means any Person that is liable under a Guarantee under
Article Sixteen hereof.
"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.
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Securities, the excess, if any, of: (i) the
aggregate present value as of the date of such redemption or accelerated
payment of each dollar of principal being redeemed or paid and the amount of
interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of each such
dollar if such redemption had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date notice of such
redemption is given) from the respective dates on which such principal and
interest would have been payable if such redemption or accelerated payment had
not been
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<PAGE> 15
made, to the date of redemption or accelerated payment; over (ii) the aggregate
principal amount of the Securities being redeemed or paid.
"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 Directors, 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 canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or 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;
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<PAGE> 16
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company; and
(v) Securities converted into 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 aiver, 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 agency or political subdivision thereof.
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<PAGE> 17
"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.
"Recourse Indebtedness" means Debt, other than Secured Debt as to which
Secured Debt the liability of the obligor thereon is limited to its interest in
the collateral securing such Secured Debt, provided that no such Secured Debt
shall constitute Recourse Indebtedness by reason of provisions therein for
imposition of full recourse liability on the obligor for certain wrongful acts,
environmental liabilities, or other customary exclusions from the so-called
"non-recourse" provisions.
"Redemption Date", when used with respect to any Security to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"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.
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical
Release under the caption "Treasury Constant Maturities" for the maturity
(rounded to the nearest month) corresponding to the remaining life to maturity,
as of the payment date of the principal being redeemed or paid. If no maturity
exactly corresponds to such maturity, yields for the two published maturities
most closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the
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<PAGE> 18
purposes of calculating the Reinvestment Rate, the most recent Statistical
Release published prior to the date of determination of the Make-Whole Amount
shall be used. If the format or content of the Statistical Release changes in
a manner that precludes determination of the Treasury yield in the above
manner, then the Treasury yield shall be determined in the manner that most
closely approximates the above manner, as reasonably determined by the Company.
If the format or content of the Statistical Release changes in a manner that
precludes determination of the Treasury Yield in the above manner, then the
Treasury Yield shall be determined in the manner that most closely approximates
the above manner, as reasonably determined by the Company.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president (whether or not designated by a number or a word
or words added before or after the title "vice president"), the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of such officer's knowledge and familiarity with the
particular subject.
"Secured Debt" means, without duplication, Debt that is secured by a
mortgage, trust deed, deed of trust, deed to secure Debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a security
interest in real property or other tangible asset(s). Secured Debt shall be
deemed to be incurred (i) on the date the obligor thereon creates, assumes,
guarantees or otherwise becomes liable in respect thereof if it is secured in
the manner described in the preceding sentence on such date or (ii) on the date
the obligor thereon first secures such Debt in the manner described in the
preceding sentence if such Debt was not so secured on the date it was incurred.
"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.
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"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.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which reports yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is
not published at the time of any determination under the Indenture, then such
other reasonably comparable index which shall be designated by the Company.
"Subsidiary" means, with respect to the Company or a Guarantor, a
corporation or general partnership a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may be, of which is
owned or controlled, directly or indirectly, by the Company or the Guarantor,
as applicable, or by one or more other Subsidiaries of the Company or the
Guarantor. 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 on a consolidated basis 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.
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"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 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
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(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
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<PAGE> 22
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
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<PAGE> 23
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
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<PAGE> 24
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
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<PAGE> 25
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:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
By
-------------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified
as contemplated by Section 301, payment of principal of and any premium 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.
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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;
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<PAGE> 28
(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
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<PAGE> 29
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
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
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(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);
(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) whether and to what extent the Securities of such series will
be guaranteed by a Guarantor; and
(26) 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
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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 issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or Cedel, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If
any Security shall be represented by a permanent global Bearer Security, then,
for purposes of this Section and Section 304, the notation of a beneficial
owner's interest therein upon original issuance of such Security or upon
exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section
306, the Trustee shall not authenticate and deliver any Bearer Security unless
all appurtenant coupons for interest then matured have been detached and
canceled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series
shall so permit, such 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,
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<PAGE> 32
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 appertaining
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
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<PAGE> 33
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 preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of Securities of
any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series of
authorized denominations; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Registered Security; and
provided further that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the conditions
set forth in Section 303. Until so exchanged, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided 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
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<PAGE> 34
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.
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<PAGE> 35
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 certification if
such date occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this paragraph, no payments
of principal or interest owing with resect 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
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<PAGE> 36
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 Beare 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
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<PAGE> 37
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 principalamount
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
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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
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<PAGE> 39
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.
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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
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the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security of such series and the date of the proposed payment
(which shall not be less than 20 days after such notice is received by the
Trustee), and at the same time the Company shall deposit with the Trustee an
amount of money in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at
the expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Registered Securities of such
series at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. The Trustee may, in its discretion, in
the name and at the expense of the Company, cause a similar notice to be
published at least once in an Authorized Newspaper in each Place of Payment,
but such publications shall not be a condition precedent to the establishment
of such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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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 canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly canceled by the
Trustee. If the Company shall so acquire any of the Securities, however, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. Canceled
Securities and coupons held by the
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Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1011), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing after
such exchange, whose surrender is not required or has been waived as
provided in Section 305, (ii) Securities and coupons of such series
which have been 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
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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 satisfaction and discharge of
this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the
Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
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
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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 or a Guarantor in this Indenture with respect to any
Security of that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) default under any evidence of Recourse Indebtedness of the
Company, or any mortgage, indenture or other instrument of the Company
(including a default with respect to Securities of any series other than that
series), under which there may be issued or by which there may be secured any
Recourse Indebtedness of the Company (or of 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 Recourse
Indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding $5,000,000
of such Recourse Indebtedness when due and payable after the expiration of any
applicable notice and grace periods with respect thereto and shall have
resulted in such Recourse Indebtedness in an aggregate principal amount
exceeding $5,000,000 becoming or being declared due and payable prior to the
date on which it would otherwise have become due and payable, without such
Recourse 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 Recourse 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:
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(A) commences a voluntary case,
(B) consents to the entry of an order for relief against
it in an involuntary case,
(C) consents to the appointment of a Custodian of it 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) a Guarantee, if issued, ceases to be, or is asserted in writing by
the Company or any Guarantor not to be, in full force or effect or enforceable
in accordance with its terms, or
(9) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11,
U.S. Code or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of 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
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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
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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
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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;
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(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
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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
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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):
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(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 Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series or any related coupons
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee security or indemnity reasonably satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the 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.
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The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, 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
compensation for all services rendered by it hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
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(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. Eligibility of Trustee; 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 Trustee publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Trustee 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:
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(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any Holder
of a Security who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series). If, within
one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any series
shall be appointed by Act of the Holders of a majority in principal amount of
the Outstanding Securities of such series delivered to the Company and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner hereinafter
provided, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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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.
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(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any entity into which the Trustee may be merged or converted or with which it
may be consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding
to all or substantially all of the corporate trust business of the Trustee,
shall be the successor of the Trustee hereunder, provided such entity shall be
otherwise qualified and eligible under this Article, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto. In case any Securities or coupons shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and 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 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.
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Any entity into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a
party, or any entity succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such entity 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.
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
By: ,
-------------------------------------
as Authenticating Agent
By:
-------------------------------------
Authorized Signatory
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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.
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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
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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 transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are
to be for the benefit of less than all series of Securities, stating that such
Events of Default are expressly being included solely for the
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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 provide a Guarantee of 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; 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.
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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, any Guarantor of such Securities, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of Securities and any related coupons under this
Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected
thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, 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) release any Guarantor of such Security from its Guarantee, or
(4) 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
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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
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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 lsted 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 presentations, surrenders, notices and demands.
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Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency
of the 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
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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
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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 other than
intercompany Debt (representing Debt to which the only parties are the Company
and any of the Subsidiaries, but only so long as such Debt is held solely by
the Company or any Subsidiary and provided that, in the case of Debt owed to
Subsidiaries, such Debt is subordinate in right of payment to the Securities)
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 determined in accordance with GAAP is greater than 65% of the sum of (i)
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 and (ii) the increase in Total Assets
from the end of such quarter including, without limitation, any increase in
Total Assets resulting from the incurrence of such additional Debt (such
increase, together with Total Assets, being referred to herein as "Adjusted
Total Assets").
(b) The Company will not, and will not permit any Subsidiary to,
incur any Debt other than intercompany Debt (representing Debt to which the
only parties are the Company and any of the Subsidiaries, but only so long as
such Debt is held solely by the Company or any Subsidiary and provided that, in
the case of Debt owed to Subsidiaries, such Debt is subordinate in right of
payment to the Securities) 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 on a pro forma basis immediately after
the incurrence of such additional Debt and the application of the proceeds
therefrom, and calculated on the assumption that (i) such Debt, and any other
Debt incurred by the Company or its Subsidiaries since the first day of such
12-month period which was outstanding at the end of such period, had been
incurred at the beginning of such period and continued to be outstanding
throughout such period, and the application of the proceeds of such Debt,
including to refinance other Debt, had occurred at the beginning of such
period, (ii) the repayment or retirement of any other Debt by the Company or
its Subsidiaries since the first day of such 12-month period had been repaid or
retired at the beginning of such period (except that, in determining the amount
of Debt so repaid or retired, the amount of Debt under any revolving credit
facility shall be computed based upon the average daily balance of such Debt
during such period), (iii) in the case of Acquired Indebtedness or Debt
incurred in connection with any acquisition since the first day of the 12-month
period, the related acquisition had occurred as of the first day of the period
with the appropriate adjustments with respect to the acquisition being included
in the pro forma calculation, and (iv) in the case of any increase or decrease
in Total Assets, or any other acquisition or disposition by the Company or any
Subsidiary of any asset or group of assets, since the first day of such
12-month period, including, without limitation, by merger, stock purchase or
sale, or asset purchase or sale, such increase, decrease, or other acquisition
or disposition or any related repayment of Debt had occurred as of the first
day of
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such period with the appropriate adjustments to revenues, expenses and Debt
levels with respect to such increase, decrease or other acquisition or
disposition being included in such pro forma calculation.
(c) The Company will not, and will not permit any Subsidiary to,
incur any Secured Debt if, immediately after giving effect to the incurrence of
such additional Secured Debt and the application of the proceeds thereof, the
aggregate principal amount of all outstanding Secured Debt of the Company and
its Subsidiaries on a consolidated basis is greater than 40% of Adjusted Total
Assets.
(d) 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 not Secured
Debt.
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 Directors 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 material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in this
Section shall prevent the Company or any Subsidiary from discontinuing the
operation and maintenance of any such properties if such discontinuance is, in
the judgment of the Company or the Subsidiary, desirable in the conduct of its
business and not disadvantageous in any material respect to the Holders.
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 in
commercially reasonable amounts and types.
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 material 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 material 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
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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. If the Company is
required to file annual and quarterly reports and other documents with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act"), the Company will file such reports and documents
with the Commission on or prior to the respective dates by which the Company is
required to file such documents. Within 15 days of the required filing date of
each such document, the Company will (i) deliver a copy of such document to the
Trustee and (ii) transmit a copy of such document (exclusive of exhibits) by
mail to all Holders, as their names and addresses appear in the Security
Register, without cost to such Holders. If the Company is not required to file
annual and quarterly reports and other documents with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act, the Company will, on or prior to
the date that is 15 days following the date by which the Company would have
been required to file each such document with the Commission if it were so
required, (i) deliver to the Trustee a document containing substantially the
same kind of information as the Company would have been required to include in
such document if it were so required and (ii) transmit a copy of the document
delivered to the Trustee (exclusive of exhibits) by mail to all Holders, as
their names and addresses appear in the Security Register, without cost to such
Holders; provided that, if Securities of a series are guaranteed by an entity
that (i) is the holder, directly or indirectly, of all of the outstanding
capital stock of the Company, and (ii) is required to file annual and quarterly
reports and other documents with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act, the delivery to the Trustee and transmittal by mail to all
Holders of the annual and quarterly reports and other documents filed by such
entity with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
within the time periods set forth herein shall be deemed to satisfy the
Company's obligations to provide financial information under this Indenture
with respect to such Securities.
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
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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.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which
are redeemable before their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as contemplated by Section
301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 45 days
prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee 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.
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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,
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(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
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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
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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 redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of
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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
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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.
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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
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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 hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section
1403 to any Outstanding Securities of or within a series and any coupons
appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (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 interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities and
any coupons appertaining thereto on the day on which such payments are due and
payabl in accordance with the terms of this Indenture and of such Securities
and any coupons appertaining thereto.
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<PAGE> 82
(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,
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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 defeasance, as applicable, in accordance with
this Article.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee may
at any time call a meeting of Holders of Securities of any series for any
purpose specified in Section 1501, to be held at such time and at such place in
the Borough of Manhattan, The City of New York, or in London as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders
of one or more Outstanding Securities of such series by such Holder or Holders.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides may be given by the
Holders of not less than a specified percentage in
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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
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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
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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.
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
SECTION 1601. Guarantee. (1) Each Person providing a guarantee of the
Securities of a series and designated as a "Guarantor" in the Board Resolution,
supplemental indenture or Officers' Certificate establishing such series, with
respect to each series of Securities to which this Article Sixteen is made
applicable, irrevocably and unconditionally guarantees (the "Guarantee") to
each Holder of a Security of such series authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of this Indenture, the Securities of such series or
the obligations of the Company under this Indenture or the Securities of such
series, that: (i) the principal of and premium, if any, and interest on the
Securities of such series will be paid in full when due, whether at the Stated
Maturity or Interest Payment Date, by acceleration, call for redemption, or
otherwise; (ii) all other obligations of the Company to the Holders of such
series or the Trustee under this Indenture or the Securities of such series
will be promptly paid in full, all in accordance with the terms of this
Indenture and the Securities of such series; and (iii) in case of any extension
of time of payment or renewal of any Securities of such series or any of such
other obligations thereunder, they will be paid in full when due in accordance
with the terms of the extension or renewal, whether at maturity, by
acceleration, call for redemption, or otherwise. Failing payment when due of
any amount so guaranteed for whatever reason, each Guarantor shall be obligated
to pay the same before failure so to pay becomes an Event of Default with
respect to Securities of any series. If the Company defaults in the payment of
the principal of or premium, if any, or interest on, or any Additional Amount
in respect of, the Securities of a series so guaranteed when and as the same
shall become due, whether upon maturity, acceleration, call for redemption, or
otherwise, without the necessity of action by the Trustee or any Holder, each
Guarantor with respect to such series shall be required to promptly make such
payment in full. The obligations of all Guarantors under this Article Sixteen
shall be joint and several.
(2) Each Guarantor agrees with respect to Securities of any
series that its obligations with regard to this Guarantee shall be full and
unconditional, irrespective of the validity, regularity or enforceability of
the Securities of such series or this Indenture, the absence of any action to
enforce the same, any delays in obtaining or realizing upon or failures to
obtain or realize upon collateral, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor with respect to Securities of any series hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
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event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company or right to require the prior disposition
of the assets of the Company to meet its obligations, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be discharged
except by complete performance of the obligations contained in the Securities
of such series and this Indenture as it relates to such series of Securities.
(3) If any Holder of Securities of a series or the Trustee is
required by any court or otherwise to return to any of the Company or a
Guarantor with respect to Securities of that series, or any Custodian, trustee,
or similar official acting in relation to any of the Company or a Guarantor,
any amount paid by any of the Company or a Guarantor to the Trustee or such
Holder with respect to Securities of that series, the Guarantee with respect to
Securities of that series, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders of Securities
of a series in respect of any obligations guaranteed hereby until payment in
full of all obligations of Securities of such guaranteed series. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 502 for
the purposes of a Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration as to the Company of the obligations
so guaranteed, and (ii) in the event of any declaration of acceleration of
those obligations as provided in Section 502, those obligations (whether or not
due and payable) will forthwith become due and payable by the Guarantors with
respect to Securities of a series for purposes of the Guarantee.
(4) Each Guarantor and by its acceptance of a Security issued
hereunder each Holder hereby confirms that it is the intention of all such
parties that the Guarantee by each Guarantor set forth in Section 1601(1) not
constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention,
the Holders and all Guarantors hereby irrevocably agree that the obligations of
each of the Guarantors under the Guarantee set forth in Section 1601(1) shall
be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor, and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to the next succeeding sentence, result in the obligations of such
Guarantor under such Guarantee not constituting such a fraudulent transfer or
conveyance. Each Guarantor that makes any payment or distribution under
Section 1601(1) shall be entitled to a contribution from each other Guarantor
equal to its Pro Rata Portion of such payment or distribution. For purposes of
the foregoing, the "Pro Rata Portion" of any Guarantor means the percentage of
net assets of all Guarantors held by such Guarantor, determined in accordance
with GAAP.
(5) It is the intention of the parties that the obligations
of the Guarantors shall be in, but not in excess of, the maximum amount
permitted by applicable law. Accordingly, if the obligations in respect of the
Guarantee would be annulled, avoided or subordinated to the creditors of any
Guarantor by a court of competent jurisdiction in a proceeding actually pending
before such court as a result of a determination both that such Guarantee was
made without fair
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consideration and, immediately after giving effect thereto, such Guarantor was
insolvent or unable to pay its debts as they mature or left with an
unreasonably small capital, then the obligations of such Guarantor under such
Guarantee shall be reduced by such court if and to the extent such reduction
would result in the avoidance of such annulment, avoidance or subordination;
provided, however, that any reduction pursuant to this paragraph shall be made
in the smallest amount as is strictly necessary to reach such result. For
purposes of this paragraph, "fair consideration," "insolvency," "unable to pay
its debts as they mature," "unreasonably small capital" and the effective times
of reductions, if any, required by this paragraph shall be determined in
accordance with applicable law.
(6) If the obligations of any Guarantor are reduced pursuant
to Section 1601(4) or 1601(5) above, such reduction shall be applied
proportionately with respect to all Securities (of whatever series) guaranteed
under Section 1601, in accordance with the respective outstanding principal
amount of such Securities so guaranteed (or, if any Securities are Original
Issue Discount Securities, the accreted value of such Securities) and being
then due upon the acceleration of the payment of such Securities.
SECTION 1602. Execution and Delivery of Guarantee. Each Guarantor shall,
by virtue of its execution and delivery of this Indenture or one or more
supplemental indentures, be deemed to have signed on each Security of each
series issued hereunder to which the provisions of this Article Sixteen are
applicable the notation of Guarantee set forth in the form of such Security
established in a supplemental indenture or pursuant to a Board Resolution in
accordance with Section 301 to the same extent as if the signature of the
Guarantor appeared on such Security. The delivery of any Security of that
series by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in Section 1601 on behalf of
each Guarantor for that series.
* * * * *
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.
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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 EXCEL REALTY TRUST, INC.
By:
--------------------------------
[SEAL] Name:
------------------------
Title: Senior Vice President
Attest:
- -----------------------------------------
Title:
NEW PLAN REALTY TRUST
as Guarantor
By:
---------------------------------
[SEAL] Name:
-------------------------
Title: Senior Vice President
Attest:
- -----------------------------------------
Title:
STATE STREET BANK AND TRUST COMPANY,
N.A.
as Trustee
By:
[SEAL] --------------------------------
Attest:
- -----------------------------------------
Title:
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<PAGE> 91
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of _______________ 19__, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at New York, New York, that he/she is ____________ of NEW
PLAN EXCEL REALTY TRUST, INC., 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
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of _______________ 19__, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at New York, New York, 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
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<PAGE> 92
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF SUFFOLK )
On the ____ day of _______________ 19__, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at New York, New York, that he/she is ____________ of STATE
STREET BANK AND TRUST COMPANY, N.A., 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
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<PAGE> 93
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 Excel Realty Trust, Inc. 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.
- 1 -
<PAGE> 94
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:
- 2 -
<PAGE> 95
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 Excel Realty
Trust, Inc. 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.
- 3 -
<PAGE> 96
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:
------------------------------------
- 4 -
<PAGE> 1
EXHIBIT 4.02
NEW PLAN EXCEL REALTY TRUST, INC.,
as Primary Obligor,
AND
______________________________________________,
as Trustee
INDENTURE
Dated as of _____________ __, 199_
Subordinated Securities
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..................2
SECTION 101. Definitions.............................................................2
Acquired Indebtedness.................................................................3
Act...................................................................................3
Additional Amounts....................................................................3
Affiliate.............................................................................3
Authenticating Agent..................................................................3
Authorized Newspaper..................................................................3
Bankruptcy Law........................................................................3
Bearer Security.......................................................................3
Board of Directors....................................................................4
Board Resolution......................................................................4
Business Day..........................................................................4
CEDEL ................................................................................4
Commission............................................................................4
Common Shares.........................................................................4
Company...............................................................................4
Company Request.......................................................................4
Company Order.........................................................................4
Conversion Event......................................................................4
Corporate Trust Office................................................................4
corporation...........................................................................5
coupon................................................................................5
Custodian.............................................................................5
Debt ................................................................................5
Defaulted Interest....................................................................5
Dollar................................................................................5
"$"...................................................................................5
ECU...................................................................................5
Euroclear.............................................................................5
European Monetary System..............................................................5
Event of Default......................................................................6
Foreign Currency......................................................................6
GAAP..................................................................................6
Government Obligations................................................................6
Guarantee.............................................................................6
Guarantor.............................................................................6
Holder................................................................................6
Indenture.............................................................................6
Indexed Security......................................................................7
interest..............................................................................7
</TABLE>
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<PAGE> 3
<TABLE>
<S> <C>
Interest Payment Date.................................................................7
Make-Whole Amount.....................................................................7
Maturity..............................................................................7
Officers' Certificate.................................................................7
Opinion of Counsel....................................................................7
Original Issue Discount Security......................................................8
Outstanding...........................................................................8
Paying Agent..........................................................................9
Person................................................................................9
Place of Payment......................................................................9
Predecessor Security..................................................................9
Preferred Shares......................................................................9
Recourse Indebtedness.................................................................9
Redemption Date.......................................................................10
Redemption Price......................................................................10
Registered Security...................................................................10
Regular Record Date...................................................................10
Reinvestment Rate.....................................................................10
Repayment Date........................................................................10
Repayment Price.......................................................................10
Representative........................................................................10
Responsible Officer...................................................................10
Secured Debt..........................................................................11
Security..............................................................................11
Security Register.....................................................................11
Security Registrar....................................................................11
Senior Debt...........................................................................11
Significant Subsidiary................................................................12
Special Record Date...................................................................12
Stated Maturity.......................................................................12
Statistical Release...................................................................12
Subsidiary............................................................................12
Trust Indenture Act...................................................................12
TIA...................................................................................12
Trustee...............................................................................12
United States.........................................................................13
United States person..................................................................13
Yield to Maturity.....................................................................13
SECTION 102. Compliance Certificates and Opinions....................................13
SECTION 103. Form of Documents Delivered to Trustee..................................13
SECTION 104. Acts of Holders.........................................................14
SECTION 105. Notices, etc., to Trustee and Company...................................16
SECTION 106. Notice to Holders; Waiver...............................................16
SECTION 107. Effect of Headings and Table of Contents................................17
SECTION 108. Successors and Assigns..................................................17
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
SECTION 109. Separability Clause.....................................................17
SECTION 110. Benefits of Indenture...................................................17
SECTION 111. Governing Law...........................................................17
SECTION 112. Legal Holidays..........................................................17
ARTICLE TWO SECURITIES FORMS.........................................................18
SECTION 202. Form of Trustee's Certificate of Authentication ........................18
SECTION 203. Securities Issuable in Global Form......................................19
ARTICLE THREE THE SECURITIES.........................................................19
SECTION 301. Amount Unlimited; Issuable in Series....................................19
SECTION 302. Denominations...........................................................23
SECTION 303. Execution, Authentication, Delivery and Dating .........................23
SECTION 304. Temporary Securities....................................................26
SECTION 305. Registration, Registration of Transfer and Exchange ....................28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities .......................31
SECTION 307. Payment of Interest; Interest Rights Preserved .........................32
SECTION 308. Persons Deemed Owners...................................................34
SECTION 309. Cancellation............................................................35
SECTION 310. Computation of Interest.................................................35
ARTICLE FOUR SATISFACTION AND DISCHARGE..............................................36
SECTION 401. Satisfaction and Discharge of Indenture.................................36
SECTION 402. Application of Trust Funds..............................................37
ARTICLE FIVE REMEDIES................................................................37
SECTION 501. Events of Default.......................................................37
SECTION 502. Acceleration of Maturity; Rescission and Annulment .....................39
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.........40
SECTION 504. Trustee May File Proofs of Claim........................................41
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons..42
SECTION 506. Application of Money Collected..........................................42
SECTION 507. Limitation on Suits.....................................................42
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium, if any,
Interest and Additional Amounts.................................................43
SECTION 509. Restoration of Rights and Remedies......................................43
SECTION 510. Rights and Remedies Cumulative..........................................43
SECTION 511. Delay or Omission Not Waiver............................................43
SECTION 512. Control by Holders of Securities........................................44
SECTION 513. Waiver of Past Defaults.................................................44
SECTION 514. Waiver of Usury, Stay or Extension Laws.................................44
SECTION 515. Undertaking for Costs...................................................44
ARTICLE SIX THE TRUSTEE..............................................................45
SECTION 601. Notice of Defaults......................................................45
SECTION 602. Certain Rights of Trustee...............................................45
SECTION 603. Not Responsible for Recitals or Issuance of Securities .................46
SECTION 604. May Hold Securities.....................................................47
</TABLE>
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<PAGE> 5
<TABLE>
<S> <C>
SECTION 605. Money Held in Trust.....................................................47
SECTION 606. Compensation and Reimbursement..........................................47
SECTION 607. Eligibility of Trustee; Conflicting Interests ..........................48
SECTION 608. Resignation and Removal; Appointment of Successor ......................48
SECTION 609. Acceptance of Appointment by Successor..................................49
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.............50
SECTION 611. Appointment of Authenticating Agent.....................................51
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY .....................52
SECTION 701. Disclosure of Names and Addresses of Holders ...........................52
SECTION 702. Reports by Trustee......................................................53
SECTION 703. Reports by Company......................................................53
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders...............53
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE ......................54
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and
Conveyances Permitted Subject to Certain Conditions ............................54
SECTION 802. Rights and Duties of Successor Corporation..............................54
SECTION 803. Officers' Certificate and Opinion of Counsel ...........................55
ARTICLE NINE SUPPLEMENTAL INDENTURES.................................................55
SECTION 901. Supplemental Indentures Without Consent of Holders .....................55
SECTION 902. Supplemental Indentures with Consent of Holders ........................56
SECTION 903. Execution of Supplemental Indentures....................................57
SECTION 904. Effect of Supplemental Indentures.......................................57
SECTION 905. Conformity with Trust Indenture Act.....................................58
SECTION 906. Reference in Securities to Supplemental Indentures .....................58
ARTICLE TEN COVENANTS................................................................58
SECTION 1001. Payment of Principal, Premium, if any, Interest and Additional
Amounts.........................................................................58
SECTION 1002. Maintenance of Office or Agency........................................58
SECTION 1003. Money for Securities Payments to Be Held in Trust .....................60
SECTION 1004. Omitted................................................................61
SECTION 1005. Existence..............................................................61
SECTION 1006. Maintenance of Properties..............................................62
SECTION 1007. Insurance..............................................................62
SECTION 1008. Payment of Taxes and Other Claims......................................62
SECTION 1009. Provision of Financial Information.....................................62
SECTION 1010. Statement as to Compliance.............................................63
SECTION 1011. Additional Amounts.....................................................63
SECTION 1012. Waiver of Certain Covenants............................................64
ARTICLE ELEVEN REDEMPTION OF SECURITIES..............................................64
SECTION 1101. Applicability of Article...............................................64
SECTION 1102. Election to Redeem; Notice to Trustee..................................64
SECTION 1103. Selection by Trustee of Securities to Be Redeemed .....................64
</TABLE>
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<PAGE> 6
<TABLE>
<S> <C>
SECTION 1104. Notice of Redemption...................................................65
SECTION 1105. Deposit of Redemption Price............................................66
SECTION 1106. Securities Payable on Redemption Date..................................66
SECTION 1107. Securities Redeemed in Part............................................67
ARTICLE TWELVE SINKING FUNDS.........................................................68
SECTION 1201. Applicability of Article...............................................68
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities .................68
SECTION 1203. Redemption of Securities for Sinking Fund..............................68
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS..................................69
SECTION 1301. Applicability of Article...............................................69
SECTION 1302. Repayment of Securities................................................69
SECTION 1303. Exercise of Option.....................................................69
SECTION 1304. When Securities Presented for Repayment Become Due and Payable.........70
SECTION 1305. Securities Repaid in Part..............................................71
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE..................................71
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or
Covenant Defeasance.............................................................71
SECTION 1402. Defeasance and Discharge...............................................71
SECTION 1403. Covenant Defeasance....................................................72
SECTION 1404. Conditions to Defeasance or Covenant Defeasance .......................72
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions..................................................74
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES....................................75
SECTION 1501. Purposes for Which Meetings May Be Called..............................75
SECTION 1502. Call, Notice and Place of Meetings.....................................75
SECTION 1503. Persons Entitled to Vote at Meetings...................................76
SECTION 1504. Quorum; Action.........................................................76
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings....77
SECTION 1506. Counting Votes and Recording Action of Meetings .......................78
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES...............................................................78
SECTION 1601. Guarantee..............................................................78
SECTION 1602. Execution and Delivery of Guarantee....................................80
ARTICLE SEVENTEEN
SUBORDINATION.........................................................................81
SECTION 1701. Agreement to Subordinate...............................................81
SECTION 1702. Liquidation, Dissolution, Bankruptcy...................................81
SECTION 1703. Default on Senior Debt.................................................81
SECTION 1704. Acceleration of Securities.............................................82
SECTION 1705. When Distribution Must Be Paid Over....................................82
SECTION 1706. Notice by Company......................................................82
SECTION 1707. Subrogation............................................................82
SECTION 1708. Relative Rights........................................................82
</TABLE>
- v -
<PAGE> 7
<TABLE>
<S> <C>
SECTION 1709. Subrogation May Not Be Impaired by Company.............................83
SECTION 1710. Distribution or Notice to Representative...............................83
SECTION 1711. Rights of Trustee and Paying Agent.....................................83
</TABLE>
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
- vi -
<PAGE> 8
RECONCILIATION AND TIE BETWEEN
TRUST INDENTURE ACT OF 1939 (THE "1939 ACT") AND INDENTURE
<TABLE>
<CAPTION>
1939 Act Section Indenture Section
<S> <C>
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
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the 1939 Act,
which provides that the provisions of Sections 310 to and including 317 of the
1939 Act are a part of and govern every qualified indenture, whether or not
physically contained therein.
<PAGE> 9
INDENTURE, dated as of ____________ __, 199_, between NEW PLAN EXCEL
REALTY TRUST, INC., a Maryland corporation, as primary obligor (hereinafter
called the "Company"), having its principal office at 1120 Avenue of the
Americas, New York, New York 10036; and ________________, a national banking
association organized under the laws of the United States of America, as trustee
(hereinafter called the "Trustee"), having its Corporate Trust Office at
_____________________; and any Person becoming a Guarantor hereunder.
RECITALS
The Company deems it necessary to issue from time to time for its lawful
purposes subordinated debt securities (hereinafter called the "Securities")
evidencing its unsecured and subordinated indebtedness, and has duly authorized
the execution and delivery of this Indenture to provide for the issuance from
time to time of the Securities, unlimited as to 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 and each Guarantor, if any, 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;
- 2 -
<PAGE> 10
(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.
"Acquired Indebtedness" means Debt of a Person (i) existing at the time
the Person becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from the Person, in each case, other than Debt incurred in
connection with, or in contemplation of, the Person becoming a Subsidiary or
that acquisition. Acquired Indebtedness shall be deemed to be incurred on the
date of the related acquisition of assets from any Person or the date the
acquired Person becomes a Subsidiary.
"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.
- 3 -
<PAGE> 11
"Board of Directors" means the board of directors 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 Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other 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.
"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 [_______________]
and, for purposes of the Place of Payment provisions of Section 1002, is
located at [_______________________________________].
- 4 -
<PAGE> 12
"corporation" includes corporations, limited partnerships, limited
liability companies, companies, real estate investment trusts 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 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) reimbursement obligations, contingent or otherwise, in connection with any
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 reimbursement obligations in connection with 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
that would appear as a liability on such Person's consolidated balance sheet in
accordance with GAAP (other than the Company or any Subsidiary) (it being
understood that "Debt" shall be deemed to be incurred by the Company and its
Subsidiaries on a consolidated basis whenever the Company and its Subsidiaries
on a consolidated basis create, assume, guarantee or otherwise become liable in
respect thereof; Debt of a Subsidiary of the Company existing prior to the time
it becomes a Subsidiary of the Company shall be deemed to be incurred upon such
Subsidiary's becoming a Subsidiary of the Company; and Debt of a Person existing
prior to a merger or consolidation of such Person with the Company or any
Subsidiary of the Company in which such Person is the successor of the Company
or such Subsidiary shall be deemed to be incurred upon the consummation of such
merger or consolidation).
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"ECU" means the European Currency Unit or its successor currency as
defined and revised from time to time by the European Union.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Monetary System" means the European Monetary System
established by the European Union.
- 5 -
<PAGE> 13
"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 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,
provided that, solely for purposes of any calculation required by the financial
covenants contained herein, "GAAP" means generally accepted accounting
principles, as in effect on the date hereof, as used in the United States
applied on a consistent basis.
"Government Obligations" means securities which are (i) direct
obligations of the United States 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 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 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.
"Guarantee" has the meaning set forth in Article Sixteen hereof.
"Guarantor" means any Person that is liable under a Guarantee under
Article Sixteen hereof.
"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
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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.
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Securities, the excess, if any, of: (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such dollar if such redemption had not been
made, determined by discounting, on a semi-annual basis, such principal and
interest at the Reinvestment Rate (determined on the third Business Day
preceding the date notice of such redemption is given) from the respective dates
on which such principal and interest would have been payable if such redemption
or accelerated payment had not been made, to the date of redemption or
accelerated payment; over (ii) the aggregate principal amount of the Securities
being redeemed or paid.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, 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.
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"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption
or repayment at the option of the Holder money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities
and any coupons appertaining thereto, provided that, if such Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or 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 obligations 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
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<PAGE> 16
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 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.
"Recourse Indebtedness" means Debt, other than Secured Debt as to which
Secured Debt the liability of the obligor thereon is limited to its interest in
the collateral securing such Secured Debt, provided that no such Secured Debt
shall constitute Recourse Indebtedness by reason of provisions therein for
imposition of full recourse liability on the obligor for certain wrongful acts,
environmental liabilities, or other customary exclusions from the so-called
"non-recourse" provisions.
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"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.
"Reinvestment Rate" means .25% plus the arithmetic mean of the yields
under the heading "Week Ending" published in the most recent Statistical Release
under the caption "Treasury Constant Maturities" for the maturity (rounded to
the nearest month) corresponding to the remaining life to maturity, as of the
payment date of the principal being redeemed or paid. If no maturity exactly
corresponds to such maturity, yields for the two published maturities most
closely corresponding to such maturity shall be calculated pursuant to the
immediately preceding sentence and the Reinvestment Rate shall be interpolated
or extrapolated from such yields on a straight-line basis, rounding in each of
such relevant periods to the nearest month. For the purposes of calculating the
Reinvestment Rate, the most recent Statistical Release published prior to the
date of determination of the Make-Whole Amount shall be used. If the format or
content of the Statistical Release changes in a manner that precludes
determination of the Treasury yield in the above manner, then the Treasury yield
shall be determined in the manner that most closely approximates the above
manner, as reasonably determined by the Company. If the format or content of the
Statistical Release changes in a manner that precludes determination of the
Treasury Yield in the above manner, then the Treasury Yield shall be determined
in the manner that most closely approximates the above manner, as reasonably
determined by the Company.
"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.
"Representative" means the indenture trustee or other trustee, agent or
representative for an issue of Senior Debt.
"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,
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any assistant secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any trust officer or assistant trust officer, the
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such officer's knowledge and familiarity
with the particular subject.
"Secured Debt" means, without duplication, Debt that is secured by a
mortgage, trust deed, deed of trust, deed to secure Debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a security
interest in real property or other tangible asset(s). Secured Debt shall be
deemed to be incurred (i) on the date the obligor thereon creates, assumes,
guarantees or otherwise becomes liable in respect thereof if it is secured in
the manner described in the preceding sentence on such date or (ii) on the date
the obligor thereon first secures such Debt in the manner described in the
preceding sentence if such Debt was not so secured on the date it was incurred.
"Security" has the meaning stated in the first recital of this Indenture
and, more particularly, means any Security or Securities authenticated and
delivered under this Indenture; provided, however, that, if at any time there is
more than one Person acting as Trustee under this Indenture, "Securities" with
respect to the Indenture as to which such Person is Trustee shall have the
meaning stated in the first recital of this Indenture and shall more
particularly mean Securities authenticated and delivered under this Indenture,
exclusive, however, of Securities of any series as to which such Person is not
Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal of and interest on, or substantially
similar payments to be made by the Company in respect of, the following, whether
outstanding at the date of execution of this Indenture or thereafter incurred,
created or assumed: (a) indebtedness of the Company for money borrowed or
represented by purchase-money obligations, (b) indebtedness of the Company
evidenced by notes, debentures or bonds, or other securities issued under the
provisions of an indenture, fiscal agency agreement or other instrument, (c)
obligations of the Company as lessee under leases of property either made as
part of any sale and lease-back transaction to which the Company is a party or
otherwise, (d) indebtedness of partnerships and joint ventures which is included
in the Company's consolidated financial statements, (e) indebtedness,
obligations and liabilities of others in respect of which the Company is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Company has agreed to purchase or otherwise
acquire, and (f) any binding commitment of the Company to fund any real estate
investment or to fund any investment in any entity making such real estate
investment; but excluding, however, (1) any such indebtedness, obligation or
liability referred to in clauses (a) through (f) above as to which, in the
instrument creating or evidencing the same or pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to
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<PAGE> 19
the Securities, or ranks pari passu with the Securities, (2) any such
indebtedness, obligation or liability which is subordinated to indebtedness of
the Company to substantially the same extent as or to a greater extent than the
Securities are subordinated, (3) any trade accounts payable and (4) the
Securities. As used in the preceding sentence, the term "purchase-money
obligations" shall mean indebtedness or obligations evidenced by a note,
debenture, bond or other instrument (whether or not secured by any lien or other
security interest but excluding indebtedness or obligations for which recourse
is limited to the property purchased) issued or assumed as all or a part of the
consideration for the acquisition of property, whether by purchase, merger,
consolidation or otherwise. A payment may consist of cash, securities or other
property.
"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.
"Statistical Release" means the statistical release designated
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which reports yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any determination under the Indenture,
then such other reasonably comparable index which shall be designated by the
Company.
"Subsidiary" means, with respect to the Company or a Guarantor, a
corporation or general partnership a majority of the outstanding voting stock,
partnership interests or membership interests, as the case may be, of which is
owned or controlled, directly or indirectly, by the Company or the Guarantor, as
applicable, or by one or more other Subsidiaries of the Company or the
Guarantor. For the purposes of this definition, "voting stock" means stock
having voting power for the election of directors, whether at all times or only
so long as no senior class of stock has such voting power by reason of any
contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder; provided, however, that
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean only the Trustee with respect
to Securities of that series.
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<PAGE> 20
"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
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<PAGE> 21
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
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<PAGE> 22
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
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<PAGE> 23
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.
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If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 109. Separability Clause. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture or in the
Securities or coupons, 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
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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.
,
---------------------------------------
as Trustee
By
--------------------------------------
Authorized Signatory
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<PAGE> 26
SECTION 203. Securities Issuable in Global Form. If Securities of or
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee in such manner and
upon instructions given by such Person or Persons as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 303
or 304. Subject to the provisions of Section 303 and, if applicable, Section
304, the Trustee shall deliver and redeliver any Security in permanent global
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium 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.
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<PAGE> 27
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
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<PAGE> 28
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;
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<PAGE> 29
(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
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the 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);
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<PAGE> 30
(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);
(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) whether and to what extent the Securities of such series will be
guaranteed by a Guarantor; and
(26) 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
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<PAGE> 31
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 issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or Cedel, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time and
if the Board Resolution or supplemental indenture establishing such series shall
so permit, such 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;
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<PAGE> 32
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining thereto,
when completed by appropriate insertions and executed and delivered by the
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
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<PAGE> 33
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and provided further
that a definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303.
Until so exchanged, the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
(b) Unless otherwise provided 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
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<PAGE> 34
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
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global Security on such Interest Payment Date and who have each delivered to
Euroclear or CEDEL, as the case may be, a certificate dated no earlier than 15
days prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth as Exhibit A-1 to this Indenture (or in such other forms as
may be established pursuant to Section 301). Notwithstanding anything to the
contrary herein contained, the certifications made pursuant to this paragraph
shall satisfy the certification requirements of the preceding two paragraphs of
this Section 304(b) and of the third paragraph of Section 303 of this Indenture
and the interests of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest owing
with respect to a beneficial interest in a temporary global Security will be
made unless and until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any interest so
received by Euroclear and CEDEL and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after such Interest
Payment Date in order to be repaid to the 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
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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
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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.
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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
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<PAGE> 39
(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
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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 arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special
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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.
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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 canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the 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.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1011), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been 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
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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 satisfaction and discharge of this
Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
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
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(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 or a Guarantor in this Indenture with respect to any
Security of that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with), and continuance of such default or breach for a period of 60 days after
there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) default under any evidence of Recourse Indebtedness of the
Company, or any mortgage, indenture or other instrument of the Company
(including a default with respect to Securities of any series other than that
series), under which there may be issued or by which there may be secured any
Recourse Indebtedness of the Company (or of 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 Recourse
Indebtedness now exists or shall hereafter be created, which default shall
constitute a failure to pay an aggregate principal amount exceeding $5,000,000
of such Recourse Indebtedness when due and payable after the expiration of any
applicable notice and grace periods with respect thereto and shall have resulted
in such Recourse Indebtedness in an aggregate principal amount exceeding
$5,000,000 becoming or being declared due and payable prior to the date on which
it would otherwise have become due and payable, without such Recourse
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 Recourse 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
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(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) a Guarantee, if issued, ceases to be, or is asserted in writing
by the Company or any Guarantor not to be, in full force or effect or
enforceable in accordance with its terms, or
(9) any other Event of Default provided with respect to Securities
of that series.
As used in this Section 501, the term "Bankruptcy Law" means title 11,
U.S. Code or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) of 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,
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(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,
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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.
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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;
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(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium, 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
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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
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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
Directors may be sufficiently evidenced by a Board Resolution;
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(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 liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the 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
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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 compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and 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.
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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. Eligibility of Trustee; 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 Trustee publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial or
District of Columbia supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Trustee 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
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shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
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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 entity into which the Trustee may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any entity
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such entity
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,
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conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities or coupons so authenticated with the
same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption or
repayment thereof, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be
evidenced by an instrument in writing signed by a Responsible Officer of the
Trustee, a copy of which instrument shall be promptly furnished to the Company.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and 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 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 entity into which an Authenticating Agent may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any entity succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such entity 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
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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.
---------------------------------------------,
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).
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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,
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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.
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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 transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that such
Events of Default are expressly being included solely for the benefit of such
series); provided, however, that in respect of any such additional Events of
Default such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in aggregate principal amount
of that or those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be
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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 provide a Guarantee of 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; 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, any Guarantor of such Securities, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, 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
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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) release any Guarantor of such Security from its Guarantee, or
(4) 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
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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
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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 presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on or Additional
Amounts in respect of Bearer Securities shall be made at any office or agency of
the 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.
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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
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(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. Omitted.
SECTION 1005. Existence. Subject to Article Eight, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect 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 Directors 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.
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SECTION 1006. Maintenance of Properties. The Company will cause all of
its material properties used or useful in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Company or any Subsidiary from discontinuing the operation and
maintenance of any such properties if such discontinuance is, in the judgment of
the Company or the Subsidiary, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders.
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 in commercially
reasonable amounts and types.
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 material 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 material 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. If the Company is
required to file annual and quarterly reports and other documents with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 (the "Exchange Act"), the Company will file such reports and documents with
the Commission on or prior to the respective dates by which the Company is
required to file such documents. Within 15 days of the required filing date of
each such document, the Company will (i) deliver a copy of such document to the
Trustee and (ii) transmit a copy of such document (exclusive of exhibits) by
mail to all Holders, as their names and addresses appear in the Security
Register, without cost to such Holders. If the Company is not required to file
annual and quarterly reports and other documents with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act, the Company will, on or prior to the
date that is 15 days following the date by which the Company would have been
required to file each such document with the Commission if it were so required,
(i) deliver to the Trustee a document containing substantially the same kind of
information as the Company would have been required to include in such document
if it were so required and (ii) transmit a copy of the document delivered to the
Trustee (exclusive of exhibits) by mail to all Holders, as their names and
addresses appear in the Security Register, without cost to such Holders;
provided that, if Securities of a series are guaranteed by an entity that (i) is
the holder, directly or indirectly, of all of the outstanding capital stock of
the Company, and (ii) is required to file annual and quarterly reports and other
documents with the Commission pursuant to
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Section 13 or 15(d) of the Exchange Act, the delivery to the Trustee and
transmittal by mail to all Holders of the annual and quarterly reports and other
documents filed by such entity with the Commission pursuant to Section 13 or
15(d) of the Exchange Act within the time periods set forth herein shall be
deemed to satisfy the Company's obligations to provide financial information
under this Indenture with respect to such Securities.
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
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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
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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
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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
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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
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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
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delivered and credited. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any
series before their Stated Maturity at the option of Holders thereof shall be
made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject
to repayment in whole or in part at the option of the Holders thereof will,
unless otherwise provided in the terms of such Securities, be repaid at a price
equal to the principal amount 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
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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
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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
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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
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply
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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 interest, if any, on such Outstanding
Securities and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory sinking
fund payments or analogous payments applicable to such Outstanding Securities
and any coupons appertaining thereto on the day on which such payments are due
and payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the 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
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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
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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 defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities of any series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee may at
any time call a meeting of Holders of Securities of any series for any purpose
specified in Section 1501, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London as the Trustee shall
determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter
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proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in the Borough of Manhattan,
The City of New York, or in London for such meeting and may call such meeting
for such purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities of any series, a Person shall be
(1) a Holder of one or more Outstanding Securities of such series, or (2) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities of such series by such Holder or Holders. The
only Persons who shall be entitled to be present or to speak at any meeting of
Holders of Securities of any series shall be the Persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes after the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than
five 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.
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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
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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.
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
SECTION 1601. Guarantee. (1) Each Person providing a guarantee of the
Securities of a series and designated as a "Guarantor" in the Board Resolution,
supplemental indenture or Officers' Certificate establishing such series, with
respect to each series of Securities to which this Article Sixteen is made
applicable, irrevocably and unconditionally guarantees (the "Guarantee") to each
Holder of a Security of such series authenticated and delivered by the Trustee
and to the Trustee and its successors and assigns, irrespective of the validity
and enforceability of this Indenture, the Securities of such series or the
obligations of the Company under this Indenture or the Securities of such
series, that: (i) the principal of and premium, if any, and interest on the
Securities of such series will be paid in full when due, whether at the Stated
Maturity or Interest Payment Date, by acceleration, call for redemption, or
otherwise; (ii) all other obligations of the Company to the Holders of such
series or the Trustee under this Indenture or the Securities of such series will
be promptly paid in full, all in accordance with the
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terms of this Indenture and the Securities of such series; and (iii) in case of
any extension of time of payment or renewal of any Securities of such series or
any of such other obligations thereunder, they will be paid in full when due in
accordance with the terms of the extension or renewal, whether at maturity, by
acceleration, call for redemption, or otherwise. Failing payment when due of any
amount so guaranteed for whatever reason, each Guarantor shall be obligated to
pay the same before failure so to pay becomes an Event of Default with respect
to Securities of any series. If the Company defaults in the payment of the
principal of or premium, if any, or interest on, or any Additional Amount in
respect of, the Securities of a series so guaranteed when and as the same shall
become due, whether upon maturity, acceleration, call for redemption, or
otherwise, without the necessity of action by the Trustee or any Holder, each
Guarantor with respect to such series shall be required to promptly make such
payment in full. The obligations of all Guarantors under this Article Sixteen
shall be joint and several.
(2) Each Guarantor agrees with respect to Securities of any
series that its obligations with regard to this Guarantee shall be full and
unconditional, irrespective of the validity, regularity or enforceability of the
Securities of such series or this Indenture, the absence of any action to
enforce the same, any delays in obtaining or realizing upon or failures to
obtain or realize upon collateral, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstances that might
otherwise constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor with respect to Securities of any series hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company or right to require the prior disposition of the assets of
the Company to meet its obligations, protest, notice and all demands whatsoever
and covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Securities of such series and
this Indenture as it relates to such series of Securities.
(3) If any Holder of Securities of a series or the Trustee
is required by any court or otherwise to return to any of the Company or a
Guarantor with respect to Securities of that series, or any Custodian, trustee,
or similar official acting in relation to any of the Company or a Guarantor, any
amount paid by any of the Company or a Guarantor to the Trustee or such Holder
with respect to Securities of that series, the Guarantee with respect to
Securities of that series, to the extent theretofore discharged, shall be
reinstated in full force and effect. Each Guarantor agrees that it will not be
entitled to any right of subrogation in relation to the Holders of Securities of
a series in respect of any obligations guaranteed hereby until payment in full
of all obligations of Securities of such guaranteed series. Each Guarantor
further agrees that, as between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (i) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 502 for the purposes
of a Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration as to the Company of the obligations so guaranteed,
and (ii) in the event of any declaration of acceleration of those obligations as
provided in Section 502, those obligations (whether or not due and payable) will
forthwith become due and payable by the Guarantors with respect to Securities of
a series for purposes of the Guarantee.
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(4) Each Guarantor and by its acceptance of a Security
issued hereunder each Holder hereby confirms that it is the intention of all
such parties that the Guarantee by each Guarantor set forth in Section 1601(1)
not constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal or state law. To effectuate the foregoing intention, the
Holders and all Guarantors hereby irrevocably agree that the obligations of each
of the Guarantors under the Guarantee set forth in Section 1601(1) shall be
limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Guarantor, and after giving effect to
any collections from or payments made by or on behalf of any other Guarantor in
respect of the obligations of such other Guarantor under its Guarantee or
pursuant to the next succeeding sentence, result in the obligations of such
Guarantor under such Guarantee not constituting such a fraudulent transfer or
conveyance. Each Guarantor that makes any payment or distribution under Section
1601(1) shall be entitled to a contribution from each other Guarantor equal to
its Pro Rata Portion of such payment or distribution. For purposes of the
foregoing, the "Pro Rata Portion" of any Guarantor means the percentage of net
assets of all Guarantors held by such Guarantor, determined in accordance with
GAAP.
(5) It is the intention of the parties that the obligations
of the Guarantors shall be in, but not in excess of, the maximum amount
permitted by applicable law. Accordingly, if the obligations in respect of the
Guarantee would be annulled, avoided or subordinated to the creditors of any
Guarantor by a court of competent jurisdiction in a proceeding actually pending
before such court as a result of a determination both that such Guarantee was
made without fair consideration and, immediately after giving effect thereto,
such Guarantor was insolvent or unable to pay its debts as they mature or left
with an unreasonably small capital, then the obligations of such Guarantor under
such Guarantee shall be reduced by such court if and to the extent such
reduction would result in the avoidance of such annulment, avoidance or
subordination; provided, however, that any reduction pursuant to this paragraph
shall be made in the smallest amount as is strictly necessary to reach such
result. For purposes of this paragraph, "fair consideration," "insolvency,"
"unable to pay its debts as they mature," "unreasonably small capital" and the
effective times of reductions, if any, required by this paragraph shall be
determined in accordance with applicable law.
(6) If the obligations of any Guarantor are reduced pursuant
to Section 1601(4) or 1601(5) above, such reduction shall be applied
proportionately with respect to all Securities (of whatever series) guaranteed
under Section 1601, in accordance with the respective outstanding principal
amount of such Securities so guaranteed (or, if any Securities are Original
Issue Discount Securities, the accreted value of such Securities) and being then
due upon the acceleration of the payment of such Securities.
SECTION 1602. Execution and Delivery of Guarantee. Each Guarantor shall,
by virtue of its execution and delivery of this Indenture or one or more
supplemental indentures, be deemed to have signed on each Security of each
series issued hereunder to which the provisions of this Article Sixteen are
applicable the notation of Guarantee set forth in the form of such Security
established in a supplemental indenture or pursuant to a Board Resolution in
accordance with Section 301 to the same extent as if the signature of the
Guarantor appeared on such
- 80 -
<PAGE> 88
Security. The delivery of any Security of that series by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guarantee
set forth in Section 1601 on behalf of each Guarantor for that series.
ARTICLE SEVENTEEN
SUBORDINATION
SECTION 1701. Agreement to Subordinate. The Company agrees, and each
Holder by accepting a Security agrees, that the indebtedness evidenced by the
Securities is subordinated in right of payment, to the extent and in the manner
provided in this Article, to the prior payment in full of all Senior Debt and
that the subordination is for the benefit of the holders of Senior Debt.
SECTION 1702. Liquidation; Dissolution; Bankruptcy. Upon any
distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to receive payment in
full in cash of the principal of and interest (including interest accruing
after the commencement of any such proceeding) to the date of payment on the
Senior Debt before Holders shall be entitled to receive any payment of
principal of or interest on Securities;
(2) until the Senior Debt is paid in full in cash, any distribution
to which Holders would be entitled but for this Article shall be made to
holders of Senior Debt as their interests may appear, except that Holders
may receive securities that are subordinated to Senior Debt to at least the
same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or decree of a
court of competent jurisdiction or a certificate of a bankruptcy trustee or
other similar official for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of Senior Debt and other
Company debt, the amount thereof or payable thereon and all other pertinent
facts relating to the Trustee's obligations under this Article Sixteen.
SECTION 1703. Default on Senior Debt. The Company may not pay principal
of or interest on the Securities and may not acquire any Securities for cash or
property other than capital stock of the Company if:
(1) a default on Senior Debt occurs and is continuing that permits
holders of such Senior Debt to accelerate its maturity, and
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<PAGE> 89
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give it
pursuant to Section 1711. If the Company receives any such notice, a similar
notice received within nine months thereafter relating to the same default
on the same issue of Senior Debt shall not be effective for purposes of this
Section.
The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given, if the default is
not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that
time.
SECTION 1704. Acceleration of Securities. If payment of the Securities
is accelerated because of an Event of Default, the Company shall promptly notify
holders of Senior Debt of the acceleration. The Company may pay the Securities
when 120 days pass after the acceleration occurs if this Article permits the
payment at that time.
SECTION 1705. When Distribution Must Be Paid Over. If a distribution is
made to Holders that because of this Article should not have been made to them,
the Holders who receive the distribution shall hold it in trust for holders of
Senior Debt and pay it over to them as their interests may appear.
SECTION 1706. Notice by Company. The Company shall promptly notify the
Trustee and any Paying Agent of any facts known to the Company that would cause
a payment of principal of or interest on Securities to violate this Article.
SECTION 1707. Subrogation. After all Senior Debt is paid in full and
until the Securities are paid in full, Holders shall be subrogated to the rights
of holders of Senior Debt to receive distributions applicable to Senior Debt to
the extent that distributions otherwise payable to the Holders have been applied
to the payment of Senior Debt. A distribution made under this Article to holders
of Senior Debt which otherwise would have been made to Holders is not, as
between the Company and Holders, a payment by the Company on Senior Debt.
SECTION 1708. Relative Rights. This Article defines the relative rights
of Holders and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than holders of Senior Debt; or
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<PAGE> 90
(3) prevent the Trustee or any Holder from exercising its
available remedies upon an Event of Default, subject to the rights of
holders of Senior Debt to receive distributions otherwise payable to Holders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a default.
SECTION 1709. Subordination May Not Be Impaired by Company. No right of
any holder of Senior Debt to enforce the subordination of the indebtedness
evidenced by the Securities shall be impaired by any act or failure to act by
the Company or by its failure to comply with this Indenture.
SECTION 1710. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.
SECTION 1711. Rights of Trustee and Paying Agent. The Trustee or any
Paying Agent may continue to make payments on the Securities until it receives
written notice of facts that would cause a payment of principal of or interest
on the Securities to violate this Article. Only the Company, a Representative or
a holder of an issue of Senior Debt that has no Representative may give the
written notice.
The Trustee has no fiduciary duty to the holders of Senior Debt other
than as created under this Indenture. The Trustee in its individual or any other
capacity may hold Senior Debt with the same rights it would have if it were not
Trustee.
The Company's obligation to pay, and the Company's payment of, the
Trustee's fees pursuant to Section 606 are excluded from the operation of this
Article Seventeen.
* * * * *
This Indenture may be executed in any number of counterparts, each of which
so executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same Indenture.
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<PAGE> 91
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 EXCEL REALTY TRUST, INC.
By:
----------------------------------
[SEAL] Name:
------------------------
Title: Senior Vice President
Attest:
- ------------------------
Title:
NEW PLAN REALTY TRUST
as Guarantor
By:
----------------------------------
[SEAL] Name:
-------------------------
Title: Senior Vice President
Attest:
- ------------------------
Title:
-------------------------------------
as Trustee
By:
--------------------------------
[SEAL]
Attest:
- ------------------------
Title:
- 84 -
<PAGE> 92
<PAGE> 93
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of _______________ 19__, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at New York, New York, that he/she is ____________ of NEW
PLAN EXCEL REALTY TRUST, INC., 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
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ____ day of _______________ 19__, before me personally came
_________________, to me known, who, being by me duly sworn, did depose and say
that he/she resides at New York, New York, 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
- 85 -
<PAGE> 94
________________________ )
) ss:
COUNTY OF ___________ )
On the ____ day of _______________ 19__, 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
______________________, 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
- 86 -
<PAGE> 95
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 Excel Realty Trust, Inc. 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.
<PAGE> 96
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:
- 2 -
<PAGE> 97
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 Excel Realty Trust, Inc. 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.
- 3 -
<PAGE> 98
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:
------------------------------
- 4 -
<PAGE> 1
EXHIBIT 4.03
[FORM OF]
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ________ __, 199_, among NEW PLAN EXCEL REALTY
TRUST, INC., a Maryland corporation, ________________________, a national
banking association, as Depositary, and all holders from time to time of
Receipts (as hereinafter defined) issued hereunder.
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of shares of the Company's Preferred Stock (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Stock
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed
to this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein, it is agreed
by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in the singular
and plural forms of such terms) used in this Deposit Agreement and the
Receipts:
SECTION 1.01. "Articles of Incorporation" shall mean the Amended and Restated
Articles of Incorporation, as amended from time to time, of the Company.
SECTION 1.02. "Articles Supplementary" shall mean the Articles Supplementary
Classifying _________ Shares of Preferred Stock as _% Series _ ______________
Preferred Stock filed with the Department of Assessments and Taxation of the
State of Maryland establishing the Preferred Stock as a series of Preferred
Stock of the Company.
SECTION 1.03. "Common Stock" shall mean shares of the Company's common stock,
$.01 par value per share.
SECTION 1.04. "Company" shall mean New Plan Excel Realty Trust, Inc., a
Maryland corporation, and its successors.
SECTION 1.05. "Corporate Office" shall mean the corporate office of the
Depositary at which at any particular time its business in respect of matters
governed by this Deposit Agreement shall be administered, which at the date of
this Deposit Agreement is located at ___________________________________.
1
<PAGE> 2
SECTION 1.06. "Deposit Agreement" shall mean this agreement, as the same may be
amended, modified or supplemented from time to time.
SECTION 1.07. "Depositary" shall mean _____________________, a company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000, and any successor as depositary hereunder.
SECTION 1.08. "Depositary Share" shall mean a fractional interest of _____ of a
share of Preferred Stock deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such share of Preferred Stock and held under this Deposit
Agreement, all as evidenced by the Receipts issued hereunder. Subject to the
terms of this Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Stock represented by such Depositary Share, including the distribution, voting,
redemption, conversion and liquidation rights contained in the Articles
Supplementary.
SECTION 1.09. "Depositary's Agent" shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.
SECTION 1.10. "Preferred Stock" shall mean shares of the Company's _% Series _
______________ Preferred Stock, $.01 par value per share, heretofore validly
issued, fully paid and nonassessable.
SECTION 1.11. "Receipt" shall mean a Depositary Receipt issued hereunder to
evidence one or more Depositary Shares, whether in definitive or temporary
form, substantially in the form set forth as Exhibit A hereto.
SECTION 1.12. "record date" shall mean the date fixed pursuant to Section 4.04.
SECTION 1.13. "record holder" or "holder" as applied to a Receipt shall mean
the person in whose name a Receipt is registered on the books maintained by the
Depositary for such purpose.
SECTION 1.14. "Registrar" shall mean ________________, or any bank or trust
company appointed to register ownership and transfers of Receipts, the
deposited Preferred Stock, as the case may be, as herein provided.
SECTION 1.15. "Securities Act" shall mean the Securities Act of 1933, as
amended.
SECTION 1.16. "Transfer Agent" shall mean ________________, or any bank or
trust company appointed to transfer the Receipts, the deposited Preferred
Stock, as herein provided.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts. Definitive Receipts shall
be engraved or printed or lithographed with steel-engraved borders and
underlying tint and shall be substantially in the form set forth in Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company, delivered in
compliance with section 2.02, shall execute and deliver temporary
2
<PAGE> 3
Receipts which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the Corporate
Office or such other offices, if any, as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company's expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Preferred
Stock deposited, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary, provided that if a
Registrar (other than the Depositary) shall have been appointed then such
Receipts shall also be countersigned by manual signature of a duly authorized
signatory of the Registrar. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose unless it
shall have been executed as provided in the preceding sentence. The Depositary
shall record on its books each Receipt executed as provided above and delivered
as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary shares. All Receipts shall be
dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or regulation or with the rules and regulations of any
securities exchange upon which the Preferred Stock, the Depositary Shares or
the Receipts may be listed or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such Receipt)
that is properly endorsed or accompanied by a properly executed instrument of
transfer or endorsement shall be transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that until a
Receipt shall be transferred on the books of the Depositary as provided in
Section 2.04, the Depositary may, notwithstanding any notice to the contrary,
treat the record holder thereof at such time as the absolute owner thereof for
the purpose of determining the person entitled to distribution of dividends or
other distributions, the exercise of any conversion rights or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in
Respect Thereof. Concurrently with the execution of this Deposit Agreement, the
Company is delivering to the Depositary a certificate or certificates,
registered in the name of the Depositary and evidencing _____________ shares of
Preferred Stock, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Stock. The Depositary acknowledges
receipt of the deposited Preferred Stock and related documentation and agrees
to hold such deposited Preferred Stock in an account to be established by the
Depositary at the Corporate Office or at such other office as the Depositary
shall determine. The Company hereby appoints the Depositary as the
3
<PAGE> 4
Registrar and Transfer Agent for the Preferred Stock deposited hereunder and
the Depositary hereby accepts such appointment and, as such, will reflect
changes in the number of shares (including any fractional shares) of deposited
Preferred Stock held by it by notation, book-entry or other appropriate method.
If required by the Depositary, Preferred Stock presented for deposit by the
Company at any time, whether or not the register of stockholders of the Company
is closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, that will provide for the prompt
transfer to the Depositary or its nominee of any distribution or right to
subscribe for additional Preferred Stock or to receive other property that any
person in whose name the Preferred Stock is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Stock, or in
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.
Upon receipt by the Depositary of a certificate or certificates for Preferred
Stock deposited hereunder, together with the other documents specified above,
and upon registering such Preferred Stock in the name of the Depositary, the
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall execute and deliver to, or upon the order of, the person or persons named
in the written order delivered to the Depositary referred to in the first
paragraph of this Section 2.02, a Receipt or Receipts for the number of whole
Depositary Shares representing the Preferred Stock so deposited and registered
in such name or names as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the Corporate
Office, except that, at the request, risk and expense of any person requesting
such delivery, such delivery may be made at such other place as may be
designated by such person.
Other than in the case of splits, combinations or other reclassifications
affecting the Preferred Stock, or in the case of distributions of Preferred
Stock, if any, there shall be deposited hereunder not more than the number of
shares constituting the Preferred Stock as set forth in the Articles
Supplementary, as such may be amended.
The Company shall deliver to the Depositary from time to time such quantities
of Receipts as the Depositary may request to enable the Depositary to perform
its obligations under this Deposit Agreement.
SECTION 2.03. Optional Redemption of Preferred Stock for Cash. Whenever the
Company shall elect to redeem shares of deposited Preferred Stock for cash in
accordance with the provisions of the Articles Supplementary, it shall (unless
otherwise agreed in writing with the Depositary) give the Depositary not less
than 60 days' prior written notice of the date of such proposed redemption and
of the number of such shares of Preferred Stock held by the Depositary to be
redeemed and the applicable redemption price, as set forth in the Articles
Supplementary, including the amount, if any, of accrued and unpaid
distributions to the date of such redemption. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of Preferred Stock and
the proposed simultaneous redemption of the Depositary Shares representing the
Preferred Stock to be redeemed, not less than 30 and not more than 60 days
prior to the date fixed for redemption of such Preferred Stock and Depositary
Shares (the "cash redemption date"), to the holders of record on the record
date fixed for such redemption pursuant to Section 4.04 hereof of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
holders as the same appear on the records of the Depositary; but neither
failure to mail any such notice to one or more such holders nor any defect in
any such notice shall affect the sufficiency of the proceedings for redemption
as to other holders. The Company shall provide the Depositary with such notice,
and each such notice shall state: the cash redemption date; the cash redemption
price; the number of shares of deposited Preferred Stock and Depositary Shares
to be redeemed; if fewer than all the Depositary shares held by any holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; the place or places where Receipts evidencing Depositary Shares to
be redeemed are to be surrendered for payment of the cash redemption price; and
that from and after the cash redemption date distributions in respect of the
Preferred Stock represented by the Depositary Shares to be redeemed will cease
to accrue. If fewer than
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all the outstanding Depositary Shares are to be redeemed, the Depositary Shares
to be redeemed shall be selected by lot or pro rata (as nearly as may be
practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company. The Company shall also cause notice
of redemption to be published in The Wall Street Journal or The New York Times,
or if neither such newspaper is then being published, any other daily newspaper
of general circulation in The City of New York, at least once a week for two
successive weeks commencing not less than 30 nor more than 60 days prior to the
cash redemption date.
In the event that notice of redemption has been made as described in the
immediately preceding paragraph and the Company shall then have paid in full to
the Depositary the cash redemption price (determined pursuant to the Articles
Supplementary) of the Preferred Stock deposited with the Depositary to be
redeemed (including any accrued and unpaid distributions to the date of
redemption), the Depositary shall redeem the number of Depositary Shares
representing such Preferred Stock so called for redemption by the Company and
from and after the cash redemption date (unless the Company shall have failed
to redeem the shares of Preferred Stock to be redeemed by it as set forth in
the Company's notice provided for in the preceding paragraph), all
distributions in respect of the shares of Preferred Stock called for redemption
shall cease to accrue, the Depositary Shares called for redemption shall be
deemed no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
redemption price and any money or other property to which holders of such
Receipts were entitled upon such redemption) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Receipts evidencing such Depositary Shares (properly endorsed or
assigned for transfer, it the Depositary shall so require), such Depositary
Shares shall be redeemed at a cash redemption price of $____ per Depositary
Share plus any other money and other property payable in respect of such
Preferred Stock. The foregoing shall be further subject to the terms and
conditions of the Articles Supplementary.
If fewer than all of the Depositary Shares evidenced by a Receipt are called
for redemption, the Depositary will deliver to the holder of such Receipt upon
its surrender to the Depositary, together with payment of the cash redemption
price for and all other amounts payable in respect of the Depositary Shares
called for redemption, a new Receipt evidencing the Depositary Shares evidenced
by such prior Receipt and not called for redemption.
SECTION 2.04. Registration of Transfers of Receipts. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Receipts
and the Depositary hereby accepts such appointment and, as such, shall register
on its books from time to time transfers of Receipts upon any surrender thereof
by the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any transfer taxes as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
SECTION 2.05. Combinations and Split-ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
SECTION 2.06. Surrender of Receipts and Withdrawal of Preferred Stock. Any
holder of a Receipt or Receipts may withdraw any or all of the deposited
Preferred Stock represented by the Depositary Shares evidenced by such Receipt
or Receipts and all money and other property, if any, represented by such
Depositary Shares by surrendering such Receipt or Receipts at the Corporate
Office or at such other office as the Depositary may designate for such
withdrawals. After such surrender, without unreasonable delay, the
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Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole or fractional
shares of such Preferred Stock and all such money and other property, if any,
represented by the Depositary shares evidenced by the Receipt or Receipts so
surrendered for withdrawal, but holders of such whole or fractional shares of
Preferred Stock will not thereafter be entitled to deposit such Preferred Stock
hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole or fractional shares of
deposited Preferred Stock to be withdrawn, the Depositary shall at the same
time, in addition to such number of whole or fractional shares of Preferred
Stock and such money and other property, if any, to be withdrawn, deliver to
such holder, or (subject to Section 2.04) upon his order, a new Receipt or
Receipts evidencing such excess number of Depositary Shares. Delivery of such
Preferred Stock and such money and other property being withdrawn may be made
by the delivery of such certificates, documents of title and other instruments
as the Depositary may deem appropriate, which, if required by the Depositary,
shall be properly endorsed or accompanied by proper instruments of transfer.
If the deposited Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the record
holder of the Receipt or Receipts being surrendered for withdrawal of Preferred
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank.
The Depositary shall deliver the deposited Preferred Stock and the money and
other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at
the request, risk and expense of the holder surrendering such Receipt or
Receipts and for the account of the holder thereof, such delivery may be made
at such other place as may be designated by such holder.
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Split-up,
Combination. Surrender and Exchange of Receipts. As a condition precedent to
the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to the Preferred Stock being deposited or withdrawn); (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any signature (or the authority of any signature); and (iii) compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement as may be required by
any securities exchange upon which the deposited Preferred Stock, the
Depositary Shares or the Receipts may be included for quotation or listed.
The deposit of Preferred Stock may be refused, the delivery of Receipts against
Preferred Stock may be suspended, the transfer of Receipts may be refused, and
the transfer, split-up, combination, surrender, exchange or redemption of
outstanding Receipts may be suspended (i) during any period when the register
of stockholders of the Company is closed or (ii) if any such action is deemed
reasonably necessary or advisable by the Depositary, any of the Depositary's
Agents or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement.
SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be mutilated or
destroyed or lost or stolen, the Depositary in its discretion may execute and
deliver a Receipt of like form and tenor in exchange
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and substitution for such mutilated Receipt or in lieu of and in substitution
for such destroyed, lost or stolen Receipt, provided that the holder thereof
provides the Depositary with (i) evidence reasonably satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, of the
authenticity thereof and of his ownership thereof and (ii) reasonable
indemnification satisfactory to the Depositary and the Company.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any person
presenting Preferred Stock for deposit or any holder of a Receipt may be
required from time to time to file such proof of residence or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of any
Receipt, the transfer, redemption or exchange of any Receipt, the withdrawal of
the deposited Preferred Stock represented by the Depositary Shares evidenced by
any Receipt, the distribution of any distribution or the sale of any rights or
of the proceeds thereof, until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts shall be
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.07, or provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Stock or money
or other property, if any, represented by the Depositary Shares evidenced by
such Receipt may be refused, any distribution may be withheld, and any part or
all of the Preferred Stock or other property represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder a
reasonable number of days prior to such sale). Any distribution so withheld and
the proceeds of any such sale may be applied to any payment of such fees or
expenses, the bolder of such Receipt remaining liable for any deficiency.
SECTION 3.03. Representations and Warranties as to Preferred Stock. In the case
of the initial deposit of the Preferred Stock hereunder, the Company and, in
the case of subsequent deposits thereof, each person so depositing Preferred
Stock under this Deposit Agreement, shall be deemed thereby to represent and
warrant that such Preferred Stock and each certificate therefor are valid and
that the person making such deposit is duly authorized to do so. The Company
hereby further represents and warrants that such Preferred Stock, when issued,
will be validly issued, fully paid and nonassessable. Such representations and
warranties shall survive the deposit of the Preferred Stock and the issuance of
Receipts.
SECTION 3.04. Representation and Warranty as to Receipts and Depositary Shares.
The Company hereby represents and warrants that the Receipts, when issued, will
evidence legal and valid interests in the Depositary Shares and each Depositary
Share will represent a legal and valid ___ fractional interest in a share of
deposited Preferred Stock. Such representation and warranty shall survive the
deposit of the Preferred Stock and the issuance of Receipts evidencing the
Depositary Shares.
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ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive any
cash distribution on the deposited Preferred Stock, including any cash received
upon redemption of any shares of Preferred Stock pursuant to Section 2.03, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
sum as are, as nearly as practicable, in proportion to the respective numbers
of Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that, in case the Company or the Depositary shall be required to and
shall withhold from any cash distribution in respect of the Preferred Stock
represented by the Receipts held by any holder an amount on account of taxes,
the amount made available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such withholding
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Receipts a fraction of one
cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.
SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary shall
receive any distribution other than cash on the deposited Preferred Stock, the
Depositary shall, subject to Section 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary and the
Company may deem equitable and practicable for accomplishing such distribution.
If in the opinion of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such record holders, or if
for any other reason (including any requirement that the Company or the
Depositary withhold an amount on account of taxes), the Depositary deems, after
consultation with the Company, such distribution not to be feasible, the
Depositary may, with the approval of the Company, adopt such method as it deems
equitable and practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Section 3.02, be distributed or made available for distribution, as the case
may be, by the Depositary to record holders of Receipts as provided by Section
4.01 in the case of a distribution received in cash. The Company shall not make
any distribution of such securities or property to the holders of Receipts
unless the Company shall have provided to the Depositary an opinion of counsel
stating that such securities or property have been registered under the
Securities Act or do not need to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the Company
shall at any time offer or cause to be offered to the persons in whose names
deposited Preferred Stock is registered on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary
to the record holders of Receipts in such manner as the Company shall instruct
(including by the issue to such record holders of warrants representing such
rights, preferences or privileges); provided, however, that (a) if at the time
of issue or offer of any such rights, preferences or privileges the Company
determines upon advice of its legal counsel that it is not lawful or feasible
to make such rights, preferences or privileges available to the holders of
Receipts (by the issue of warrants or otherwise) or (b) if and to the extent
instructed by holders of Receipts who do not desire to exercise such rights,
preferences or privileges, the Depositary shall then, if so instructed by the
Company, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of such
holders at public or private
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sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Section 3.01 and Section 3.02,
be distributed by the Depositary to the record holders of Receipts entitled
thereto as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such rights, preferences
or privileges, unless the Company shall have provided to the Depositary an
opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which any rights,
preferences or privileges relate is required in order for holders of Receipts
to be offered or sold the securities to which such rights, preferences or
privileges relate, the Company agrees that it will promptly file a registration
statement pursuant to the Securities Act with respect to such rights,
preferences or privileges and securities and use its best efforts and take all
steps available to it to cause such registration statement to become effective
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.
If any other action under the law of any jurisdiction or any governmental or
administrative authorization, consent or permit is required in order for such
rights, preferences or privileges to be made available to holders of Receipts,
the Company agrees to use its best efforts to take such action or obtain such
authorization, consent or permit sufficiently in advance of the expiration of
such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges.
SECTION 4.04. Notice of Distributions; Fixing of Record Date for Holders of
Receipts. Whenever any cash distribution shall become payable, any distribution
other than cash shall be made, or any rights, preferences or privileges shall
at any time be offered, with respect to the deposited Preferred Stock, or
whenever the Depositary shall receive notice of (i) any meeting at which
holders of such Preferred Stock are entitled to vote or of which holders of
such Preferred Stock are entitled to notice or (ii) any election on the part of
the Company to redeem any shares of such Preferred Stock, the Depositary shall
in each such instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Preferred Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, to give instructions for the exercise of voting rights at any such
meeting or to receive notice of such meeting or whose Depositary Shares are to
be so redeemed.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at which the
holders of deposited Preferred Stock are entitled to vote, the Depositary
shall, as soon as practicable thereafter, mail to the record holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Preferred Stock represented by
their respective Depositary Shares and (iii) a brief statement as to the manner
in which such instructions way be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall vote or cause to be
voted the amount of Preferred Stock represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. To the extent any such instructions request the voting of a fractional
interest of a share of deposited Preferred Stock, the Depositary shall
aggregate such interest with all other fractional interests resulting from
requests with the same voting instructions and shall vote the number of whole
votes resulting from such aggregation in accordance with the instructions
received in such requests. Each share of Preferred Stock is entitled to 10
votes and, accordingly, each Depositary
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Share is entitled to one vote. The Company hereby agrees to take all reasonable
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Preferred stock or cause such Preferred Stock to be
voted. In the absence of specific instructions from the holder of a Receipt,
the Depositary will abstain from voting to the extent of the Preferred Stock
represented by the Depositary Shares evidenced by such Receipt. The Depositary
shall not be required to exercise discretion in voting any Preferred Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Preferred Stock and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of Preferred Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party or sale of all or substantially
all of the Company's assets, the Depositary shall, upon the instructions of the
Company, (i) make such adjustments in (a) the fraction of an interest
represented by one Depositary Share in one share of Preferred Stock and (b) the
ratio of the redemption price per Depositary Share to the redemption price of a
share of Preferred Stock, in each case as may be required by or as is
consistent with the provisions of the Articles Supplementary to fully reflect
the effects of such change in liquidation value, split-up, combination or other
reclassification of stock, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares of stock or other securities or
property (including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Stock as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof in the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, holders of Receipts shall have
the right from and after the effective date of any such change in par or stated
value, split-up, combination or other reclassification of the Preferred Stock
or any such recapitalization, reorganization, merger, amalgamation or
consolidation or sale of substantially all the assets of the Company to
surrender such Receipts to the Depositary with instructions to convert,
exchange or surrender the Preferred Stock represented thereby only into or for,
as the case may be, the kind and amount of shares of stock and other securities
and property and cash into which the deposited Preferred Stock evidenced by
such Receipts might have been converted or for which such Preferred Stock might
have been exchanged or surrendered immediately prior to the effective date of
such transaction. The Company shall cause effective provision to be made in the
charter of the resulting or surviving corporation (if other than the Company)
for protection of such rights as may be applicable upon exchange of the
deposited Preferred Stock for securities or property or cash of the surviving
corporation in connection with the transactions set forth above. The Company
shall cause any such surviving corporation (if other than the Company)
expressly to assume the obligations of the Company hereunder.
SECTION 4.07. Inspection of Reports. The Depositary shall make available for
inspection by holders of Receipts at the Corporate Office and at such other
places as it may from time to time deem advisable during normal business hours
any reports and communications received from the Company that are both received
by the Depositary as the holder of deposited Preferred Stock and made generally
available to the holders of the Preferred Stock. In addition, the Depositary
shall transmit certain notices and reports to the holders of Receipts as
provided in Section 5.05.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time to time
by the Company, the Depositary shall furnish to the Company a list, as of a
recent date specified by the Company, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Receipts are registered on the
books of the Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of form 1099s for all open and
closed accounts, (ii) foreign tax withholding, (iii)
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withholding 31% (or any withholding as may be required at the then applicable
rate) of distributions from eligible holders of Receipts, (iv) mailing W-9
forms to new holders of Receipts without a certified taxpayer identification
number, (v) processing certified W-9 forms, (vi) preparation and filing of
state information returns and (vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of this Deposit
Agreement, in the event that the Depositary determines that any distribution in
property is subject to any tax which the Depositary is obligated by law to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the holders of Receipts entitled
thereto in proportion to the number of Depositary Shares held by them
respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary and the Registrar. The Depositary shall maintain at the Corporate
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Stock and at the offices of the Depositary's Agents, if
any, facilities for the delivery, transfer, surrender and exchange, split-up,
combination and redemption of Receipts and deposit and withdrawal of Preferred
Stock, all in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the registration
and transfer of Receipts, which books at all reasonable times shall be open for
inspection by the record holders of Receipts as provided by applicable law. The
Depositary may close such books, at any time or from time to time, when deemed
expedient by it in connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the Preferred
Stock represented by such Depositary Shares shall be listed on the New York
Stock Exchange, Inc. or any other stock exchange, the Depositary may, with the
approval of the Company, appoint a Registrar (acceptable to the Company) for
registration of such Receipts or Depositary shares in accordance with the
requirements of such Exchange. Such Registrar (which may be the Depositary if
so permitted by the requirements of such Exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Stock are listed on one or more other stock exchanges, the Depositary
will, at the request and expense of the Company, arrange such facilities for
the delivery, transfer, surrender, redemption and exchange of such Receipts,
such Depositary Shares or such Preferred Stock as may be required by law or
applicable stock exchange regulations.
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the
Depositary's Agents, the Registrar or the Company. Neither the Depositary, any
Depositary's Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Articles of Incorporation or the Articles Supplementary or, in
the case of the Company, the Depositary, the Depositary's Agent or the
Registrar, by reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar
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<PAGE> 12
or the Company incur any liability to any holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing that the terms of this Deposit Agreement provide shall or may be done or
performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary, any Depositary's Agent, any
Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out of conduct constituting bad
faith, negligence, gross negligence or willful misconduct in the performance of
such duties as are specifically set forth in this Deposit Agreement.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any action,
suit or other proceeding with respect to the deposited Preferred Stock,
Depositary Shares or Receipts that in its reasonable opinion may involve it in
expense or liability, unless indemnity reasonably satisfactory to it against
all expense and liability be furnished as often as may be required.
Neither the Depositary, any Depositary's Agent, any Registrar nor the Company
shall be liable for any action or any failure to act by it in reliance upon the
written advice of legal counsel or accountants, or information provided by any
person presenting Preferred Stock for deposit, any holder of a Receipt or any
other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or parties.
In the event the Depositary shall receive conflicting claims, requests or
instructions from any holders of Receipts, on the one hand, and the Company, on
the other hand, the Depositary shall be entitled to act on such claims,
requests or instructions received from the Company, and shall be entitled to
the full indemnification set forth in Section 5.06 hereof in connection with
any action so taken.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the deposited Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from negligence or willful misconduct of the
Depositary. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Depositary or any Registrar.
The Depositary, its parent, affiliate, or subsidiaries, any Depositary's Agent,
and any Registrar may own, buy, sell or deal in any class of securities of the
Company and its affiliates and in Receipts or Depositary Shares or become
pecuniarily interested in any transaction in which the Company or its
affiliates may be interested or contract with or lend money to or otherwise act
as fully or as freely as if it were not the Depositary or the Depositary's
Agent hereunder. The Depositary may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates or act in any other
capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Depositary's Agent shall be
deemed to be an "issuer" of the securities under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed that
the Depositary and any Depositary's Agent are acting only in a ministerial
capacity as Depositary for the deposited Preferred Stock; provided, however,
that the Depositary agrees to comply with all information reporting and
withholding requirements applicable to it under law or this Deposit Agreement
in its capacity as Depositary.
12
<PAGE> 13
Neither the Depositary (or its officers, directors, employees or agents) nor
any Depositary's Agent makes any representation or has any responsibility as to
the validity of the registration statement pursuant to which the Depositary
Shares are registered under the Securities Act, the deposited Preferred Stock,
the Depositary Shares, the Receipts (except its countersignature thereon) or
any instruments referred to therein or herein, or as to the correctness of any
statement made therein or herein; provided, however, that the Depositary is
responsible for its representations in this Deposit Agreement and for the
validity of any action taken or required to be taken by the Depositary in
connection with this Deposit Agreement.
The Company agrees that it will register the deposited Preferred Stock and the
Depositary Shares in accordance with the applicable securities laws.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of such
removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed,
the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a court of competent jurisdiction
to appoint a successor depositary. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the company, shall promptly
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all rights, title and interest in the deposited Preferred Stock and any moneys
or property held hereunder to such successor and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor depositary shall promptly mail notice of its appointment to the
record holders of Receipts.
Any corporation into or with which the Depositary may be merged, consolidated
or converted shall be the successor of such Depositary without the execution or
filing of any document or any further act. Such successor depositary may
execute the Receipts either in the name of the predecessor depositary or in the
name of the successor depositary.
SECTION 5.05. Notices, Reports and Documents. The Company agrees that it will
deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary Shares or
the Receipts are included for quotation or listed or by the Articles of
Incorporation and the Articles Supplementary to be furnished by the Company to
holders of the deposited Preferred Stock and, if requested by the holder of any
Receipt, a copy of this Deposit Agreement, the form of
13
<PAGE> 14
Receipt, the Articles Supplementary and the form of Preferred Stock. Such
transmission will be at the Company's expense and the Company will provide the
Depositary with such number of copies of such documents as the Depositary may
reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company's expense such other documents as may be
requested by the Company.
SECTION 5.06. Indemnification by the Company. The Company agrees to indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold each
of them harmless from, any liability, costs and expenses (including reasonable
attorneys' fees) that may arise out of, or in connection with, its acting as
Depositary, Depositary's Agent or Registrar, respectively, under this Deposit
Agreement and the Receipts, except for any liability arising out of the willful
misconduct, gross negligence, negligence (in the case of an action or inaction
with respect to the voting of the deposited Preferred Stock) or bad faith on
the part of any such person or persons. The obligations of the Company met
forth in this Section 5.06 shall survive any succession of any Depositary,
Registrar or Depositary's Agent or termination of this Deposit Agreement.
SECTION 5.07. Fees, Charges and Expenses. No charges and expenses of the
Depositary or any Depositary's Agent hereunder shall be payable by any person,
except as provided in this Section 5.07. The Company shall pay all transfer and
other taxes and governmental charges arising solely from the existence of this
Deposit Agreement. The Company shall also pay all fees and expenses of the
Depositary in connection with the initial deposit of the Preferred Stock and
the initial issuance of the Depositary Shares evidenced by the Receipts, any
redemption of the Preferred Stock at the option of the Company and all
withdrawals of the Preferred Stock by holders of Depositary Shares. If a holder
of Receipts requests the Depositary to perform duties not required under this
Deposit Agreement, the Depositary shall notify the holder of the cost of the
performance of such duties prior to the performance thereof. Such holder will
be liable for the charges and expenses related to such performance. All other
fees and expenses of the Depositary and any Depositary's Agent hereunder and of
any Registrar (including, in each case, fees and expenses of counsel) incident
to the performance of their respective obligations hereunder will be promptly
paid as previously agreed between the Depositary and the Company. The
Depositary shall present its statement for fees and expenses to the Company
every month or at such other intervals as the Company and the Depositary may
agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provision of this
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable; provided, however, that no such amendment (other than
any change in the fees of any Depositary, Registrar or Transfer Agent) which
(i) shall materially and adversely alter the rights of the holders of Receipts
or (ii) would be materially and adversely inconsistent with the rights granted
to the holders of the Preferred Stock pursuant to the Articles Supplementary
shall be effective unless such amendment shall have been approved by the
holders of at least a majority of the Depositary Shares then outstanding. In no
event shall any amendment impair the right, subject to the provisions of
Section 2.06 and Section 2.07 and Article III, of any holder of any Depositary
Shares to surrender the Receipt evidencing such Depositary Shares with
instructions to the Depositary to deliver to the holder the deposited Preferred
Stock and all money and other property if any, represented thereby, except in
order to comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be terminated by the
Company upon not less than 30 days' prior written notice to the Depositary if
(i) such termination is necessary to preserve
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<PAGE> 15
the Company's status as a real estate investment trust under the Internal
Revenue Code of 1986, as amended (or any successor provision) or (ii) the
holders of a majority of the Preferred Stock consent to such termination,
whereupon the Depositary shall deliver or make available to each holder of a
Receipt, upon surrender of the Receipt held by such holder, such number of
whole or fractional shares of deposited Preferred Stock as are represented by
the Depositary Shares evidenced by such Depositary Receipt, together with any
other property held by the Depositary in respect of such Receipt. In the event
that this Deposit Agreement is terminated pursuant to clause (i) of the
immediately preceding sentence, the Company hereby agrees to use its best
efforts to list the Preferred Stock issued upon surrender of the Receipt
evidencing the Depositary Shares represented thereby on a national securities
exchange. This Deposit Agreement will automatically terminate if (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03
or (ii) there shall have been made a final distribution in respect of the
deposited Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Receipts entitled thereto.
Upon the termination of this Deposit Agreement, the Company shall be discharged
from all obligations under this Deposit Agreement except for its obligations to
the Depositary, any Depositary's Agent and any Registrar under Section 5.06 and
Section 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall
constitute one and the same instrument. Delivery of an executed counterpart of
a signature page to this Deposit Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Deposit Agreement. Copies
of this Deposit Agreement shall be filed with the Depositary and the
Depositary's Agents and shall be open to inspection during business hours at
the Corporate Office and the respective offices of the Depositary's Agents, if
any, by any holder of a Receipt.
SECTION 7.02. Exclusive Benefits of Parties. This Deposit Agreement is for the
exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the Company hereunder
or under the Receipts shall be in writing and shall be deemed to have been duly
given if personally delivered or sent by mail, or by telegram or facsimile
transmission confirmed by letter, addressed to the Company at:
NEW PLAN EXCEL REALTY TRUST, INC.
1120 Avenue of the Americas, 12th Floor
New York, NY 10036
Attention: General Counsel
Telephone No.: (212) 869-3000
15
<PAGE> 16
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the Receipts shall
be in writing and shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram or telex or telecopier confirmed by
letter, addressed to the Depositary at the Corporate Office.
Any notices given to any record holder or a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.
Delivery of a notice sent by mail, or by telegram or telex or telecopier shall
be deemed to be effected at the time when a duly addressed letter containing
the same (or a confirmation thereof in the case of a telegram or telex or
telecopier message) is deposited, postage prepaid, in a post office letter box.
The Depositary or the Company may, however, act upon any telegram or telex or
telecopier message received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram or telex or telecopier message
shall not subsequently be confirmed by letter as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to time appoint
Depositary's Agents to act in any respect for the Depositary for the purposes
of this Deposit Agreement and may at any time appoint additional Depositary's
Agents and vary or terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts from
time to time shall be deemed to be parties to this Deposit Agreement and shall
be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.
SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the law of the State of New York
applicable to agreements made and to be performed in said State.
SECTION 7.08. Inspection of Deposit Agreement and Articles Supplementary.
Copies of this Deposit Agreement and the Articles Supplementary shall be filed
with the Depositary and the Depositary's Agents and shall be open to inspection
during business hours at the Corporate Office and the respective offices of the
Depositary's Agents, if any, by any holder of any Receipt.
SECTION 7.09. Headings. The headings of articles and sections in this Deposit
Agreement and in the form of the Receipt set forth in Exhibit A hereto have
been inserted for convenience only and are not to be regarded as a part of this
Deposit Agreement or to have any bearing upon the meaning or interpretation of
any provision contained herein or in the Receipts.
16
<PAGE> 17
IN WITNESS WHEREOF, New Plan Excel Realty Trust, Inc. and ____________ have
duly executed this Deposit Agreement as of the day and year first above set
forth and all holders of Receipts shall become parties hereto by and upon
acceptance by them of delivery of Receipts issued in accordance with the terms
hereof.
NEW PLAN EXCEL REALTY TRUST, INC.
By:
-----------------------------------------------
[Name]
[Title]
[NAME OF DEPOSITARY]
By:
-----------------------------------------------
[Name]
Authorized Signatory
17
<PAGE> 18
EXHIBIT A
Form of Receipt
A-1
<PAGE> 19
[GRAPHIC]
Temporary Receipt Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
IMPORTANT NOTICE - RESTRICTIONS ON TRANSFER AND OWNERSHIP
The Depositary Shares represented by this Depositary Receipt are subject to
restrictions on ownership and transfer for the Corporation's maintenance of its
status as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended. Except as otherwise provided pursuant to the Charter of the
Corporation, no Person may Beneficially Own or Constructively Own shares of
Common Stock and/or Preferred Stock (and, accordingly, Depositary Shares or
Depositary Receipts representing such shares) of the Corporation in excess of
9.8% (or such greater percentage as may be determined by the Board of Directors
of the Corporation) of the value of the outstanding Common Stock and Preferred
Stock of the Corporation. Any Person who attempts or proposes to Beneficially
Own or Constructively Own shares of Common Stock and/or Preferred Stock (and,
accordingly, Depositary Shares or Depositary Receipts representing such shares)
in excess of the above limitation must notify the Corporation in writing at
least 15 days prior to such proposed or attempted Transfer. All capitalized
terms used in this legend have the meanings defined in the Charter of the
Corporation, a copy of which, including the restrictions on transfer and
ownership, will be sent without charge to each holder hereof who so requests.
If the restrictions on transfer or ownership are violated, the Preferred Stock
represented by the Depositary Shares may be automatically transferred to a
trust for the benefit of one or more charitable organizations to be designated
by the Corporation. In addition, attempted transfers in violation of the
limitations described above may be void ab initio.
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH REPRESENTING ___th OF A
SHARE OF _% SERIES _ _______________ PREFERRED STOCK
OF
NEW PLAN EXCEL REALTY TRUST, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF MARYLAND
DEPOSITARY SHARES
THIS DEPOSITARY RECEIPT IS TRANSFERABLE IN _________, __ OR NEW YORK, NY
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP ________________
_____________________, as Depositary (the "Depositary"), hereby certifies that
is the registered owner of Depositary Shares
("Depositary Shares"), each Depositary Share representing _____th of one share
of _% Series _ ___________________ Preferred Stock (the "Stock"), of New Plan
Excel Realty Trust, Inc., a Maryland corporation (the "Corporation"), on
deposit with the Depositary, subject to the terms and entitled to the benefits
of the Deposit Agreement dated as of ____________ __, 1998 (the "Deposit
Agreement"), between the Corporation, the Depositary and all holders from time
to time of Depositary Receipts. By accepting this Depositary Receipt, the
holder hereof becomes a party to and agrees to be bound by all the terms and
conditions of the Deposit Agreement. This Depositary Receipt shall not be valid
or obligatory for any purpose or be entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual
and/or facsimile signature of a duly authorized officer.
<PAGE> 20
The Corporation is authorized to issue Common Stock and one or more series or
classes of Preferred Stock. The Corporation will furnish without charge to each
receiptholder, who so requests in writing, a statement of the rights,
preferences, privileges and restrictions granted to or imposed upon the
respective classes of shares and upon the holders thereof, a copy of the
Corporation's Charter and Bylaws, and a copy of the Deposit Agreement. Any such
request shall be made to the Corporation at the principal office of the
Corporation at 1120 Avenue of the Americas, 12th Floor, New York, New York
10036, Attention: General Counsel.
This Depositary Receipt is continued on the reverse hereof and the additional
provisions therein set forth (including, without limitation, those relating to
redemption) for all purposes have the same effect as if set forth at this
place.
<TABLE>
<S> <C>
Dated:
Countersigned . Depositary, Transfer Agent and Registrar
------------------
By:
-----------------------------------
AUTHORIZED OFFICER
</TABLE>
<PAGE> 21
NEW PLAN EXCEL REALTY TRUST, INC.
THE DEPOSITARY SHARES REPRESENTED BY THIS DEPOSITARY RECEIPT ARE SUBJECT TO THE
PROVISIONS OF THE CHARTER AND BYLAWS OF THE CORPORATION, INCLUDING, BUT NOT
LIMITED TO, (1) SECTION 5 OF THE ARTICLES SUPPLEMENTARY RELATING TO THE STOCK,
WHICH CONFERS UPON THE CORPORATION THE RIGHT, ON OR AFTER JANUARY 13, 2003, TO
CALL FOR REDEMPTION THE STOCK, (2) SECTION 9 OF THE ARTICLES SUPPLEMENTARY AND
ARTICLE VII OF THE CHARTER OF THE CORPORATION WHICH IMPOSE CERTAIN RESTRICTIONS
ON TRANSFER OR OWNERSHIP OF THE COMMON STOCK AND THE PREFERRED STOCK (INCLUDING
THE STOCK AND, ACCORDINGLY, THE DEPOSITARY SHARES REPRESENTING THE STOCK, AND
THE DEPOSITARY RECEIPTS) OF THE CORPORATION FOR THE PURPOSE OF THE
CORPORATION'S MAINTENANCE OF ITS STATUS OF A "REAL ESTATE INVESTMENT TRUST"
UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, INCLUDING PROVISIONS
THEREOF WHICH PROVIDE (A) THAT NO PERSON MAY BENEFICIALLY OWN OR CONSTRUCTIVELY
OWN SHARES OF COMMON STOCK AND/OR PREFERRED STOCK (INCLUDING THE STOCK) IN
EXCESS OF 9.8% (OR SUCH GREATER PERCENTAGES AS MAY BE DETERMINED BY THE BOARD
OF DIRECTORS OF THE CORPORATION) OF THE VALUE OF THE OUTSTANDING COMMON STOCK
AND PREFERRED STOCK OF THE CORPORATION; (B) THAT ANY PERSON WHO ATTEMPTS OR
PROPOSES TO BENEFICIALLY OWN OR CONSTRUCTIVELY OWN SHARES OF COMMON STOCK OR
PREFERRED STOCK IN EXCESS OF THE ABOVE LIMITATION MUST NOTIFY THE CORPORATION;
(C) THAT, IF THE RESTRICTIONS ON TRANSFER OR OWNERSHIP ARE VIOLATED, THE
SUBJECT SECURITIES MAY BE AUTOMATICALLY TRANSFERRED TO A TRUST FOR THE BENEFIT
OF ONE OR MORE CHARITABLE ORGANIZATIONS TO BE DESIGNATED BY THE CORPORATION;
AND (D) THAT ANY TRANSFER IN VIOLATION OF THE LIMITATIONS DESCRIBED ABOVE MAY
BE VOID AB INITIO. THE TERMS "PERSON", "BENEFICIALLY OWN" AND "CONSTRUCTIVELY
OWN", AS USED ABOVE SHALL HAVE THE MEANINGS ASCRIBED IN THE CHARTER OF THE
CORPORATION, A COPY OF WHICH WILL BE SENT WITHOUT CHARGE TO EACH HOLDER HEREOF
WHO SO REQUESTS.
1. THE DEPOSIT AGREEMENT. Depositary Receipts, of which this Depositary Receipt
is one, are made available upon the terms and conditions set forth in the
Deposit Agreement, dated as of _________ __, 199_ (the "Deposit Agreement"),
among the Company, the Depositary and all holders from time to time of
Depositary Receipts. The Deposit Agreement (copies of which are on file at the
principal office maintained by the Depositary which at the time of the
execution of the Deposit Agreement is located at ____________________________
(the "Depositary's Office") and at the office of any agent of the Depositary)
sets forth the rights of holders of Depositary Receipts and the rights and
duties of the Depositary. The statements made on the face and the reverse of
this Depositary Receipt are summaries of certain provisions of the Deposit
Agreement and are subject to the detailed provisions thereof, to which
reference is hereby made. In the event of any conflict between the provisions
of this Depositary Receipt and the provisions of the Deposit Agreement, the
provisions of the Deposit Agreement will govern.
2. DEFINITIONS. Unless otherwise expressly herein provided, all defined terms
used in this summary of the Deposit Agreement shall have the meanings ascribed
thereto in the Deposit Agreement.
3. REDEMPTION OF STOCK. Whenever the Company shall elect to redeem shares of
Stock, it shall (unless otherwise agreed in writing with the Depositary) give
the Depositary not less than 60 days' notice of the date of such proposed
redemption and of the number of such shares of Stock held by the Depositary to
be so redeemed and the applicable redemption price. The Depositary shall mail,
first-class postage prepaid, notice of the redemption of Stock and the proposed
simultaneous redemption of Depositary Shares representing the Stock to be
redeemed, not less than 30 and not more than 60 days prior to the date fixed
for redemption of such Stock and Depositary Shares, to the record holders of
the Depositary Receipts evidencing the Depositary Shares to be so redeemed, at
the addresses of such holders as the same appear on the records of the
Depositary. Any such notice shall also be published in the same manner as
<PAGE> 22
notices of redemption of the Stock are required to be published by the Company.
On the date of such redemption, the Depositary shall redeem the number of
Depositary Shares representing such redeemed Stock; provided, that the Company
shall then have paid or caused to be paid in full to the Depositary the
redemption price of the Stock to be redeemed, plus any accrued and unpaid
dividends payable with respect thereto to the date of any such redemption. In
case fewer than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be determined pro rata or by lot in a
manner determined by the Board of Directors. Notice having been mailed as
aforesaid, from and after the Redemption Date (unless the Company shall have
failed to provide the funds necessary to redeem the shares of Stock evidenced
by the Depositary Shares called for redemption), dividends on the shares of
Stock so called for redemption shall cease to accrue, the Depositary Shares
called for redemption shall be deemed no longer to be outstanding and all
rights of the holders of Depositary Receipts evidencing such Depositary Shares
(except the right to receive the redemption price) shall, to the extent of such
Depositary Shares, cease and terminate. Upon surrender in accordance with said
notice of the Depositary Receipts evidencing such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary or applicable law shall so
require), such Depositary Shares shall be redeemed at a redemption price per
Depositary Share equal to the same fraction of the redemption price per share
paid with respect to the shares of Stock as the fraction each Depositary Share
represents of a share of Stock plus the same fraction of all money and other
property, if any, represented by such Depositary Shares, including all amounts
paid by the Company in respect of dividends which on the Redemption Date have
accumulated on the shares of Stock to be so redeemed and have not theretofore
been paid. The foregoing is subject further to the terms and conditions of the
Certificate of Determination. If fewer than all of the Depositary Shares
evidenced by this Depositary Receipt are called for redemption, the Depositary
will deliver to the holder of this Depositary Receipt upon its surrender to the
Depositary, together with the redemption payment, a new Depositary Receipt
evidencing the Depositary Shares evidenced by such prior Depositary Receipt and
not called for redemption.
4. SURRENDER OF DEPOSITARY RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of
this Depositary Receipt to the Depositary at the Depositary's Office or at such
other offices as the Depositary may designate, and subject to the provisions of
the Deposit Agreement, the holder hereof is entitled to withdraw, and to obtain
delivery, without unreasonable delay, to or upon the order of such holder, any
or all of the Stock (but only in whole shares of Stock) and all money and other
property, if any, at the time represented by the Depositary Shares evidenced by
this Depositary Receipt; provided, however, that, in the event this Depositary
Receipt shall evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the whole number of shares of Stock to be
withdrawn, the Depositary shall, in addition to such whole number of shares of
Stock and such money and other property, if any, to be withdrawn, deliver, to
or upon the order of such holder, a new Depositary Receipt or Depositary
Receipts evidencing such excess number of whole Depositary Shares.
5. TRANSFERS, SPLIT-UPS, COMBINATIONS. Subject to the Deposit Agreement, this
Depositary Receipt is transferable on the books of the Depositary upon
surrender of this Depositary Receipt to the Depositary, properly endorsed or
accompanied by a properly executed instrument of transfer, and upon such
transfer the Depositary shall sign and deliver a Depositary Receipt or
Depositary Receipts to or upon the order of the person entitled thereto, all as
provided in and subject to the Deposit Agreement. This Depositary Receipt may
be split into other Depositary Receipts or combined with other Depositary
Receipts into one Depositary Receipt evidencing the same aggregate number of
Depositary Shares evidenced by the Depositary Receipt or Depositary Receipts
surrendered; provided, however, that the Depositary shall not issue any
Depositary Receipt evidencing a fractional Depositary Share.
6. CONDITIONS TO SIGNING AND DELIVERY, TRANSFER, ETC., OF DEPOSITARY RECEIPTS.
Prior to the execution and delivery, registration of transfer, split-up,
combination, surrender or exchange of this Depositary Receipt, the Depositary,
any of the Depositary's Agents or the Company may require any or all of the
following: (i) payment to it of a sum sufficient for the payment (or, in the
event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto; (ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; and (iii) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement.
7. SUSPENSION OF DELIVERY, TRANSFER, ETC. The deposit of Stock may be refused,
the delivery of this Depositary Receipt against Stock may be suspended, the
registration of transfer of Depositary Receipts may be refused
<PAGE> 23
and the registration of transfer, surrender or exchange of this Depositary
Receipt may be suspended (i) during any period when the register of
stockholders of the Company is closed or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or
of any government or governmental body or commission, or under any provision of
the Deposit Agreement.
8. AMENDMENT. The form of the Depositary Receipts and any provision of the
Deposit Agreement may at any time and from time to time be amended by agreement
between the Company and the Depositary in any respect that they may deem
necessary or desirable; provided, however, that no such amendment (other than
any changes in the fees of any Depositary or Registrar which shall go into
effect not sooner than three months after Notice thereof to the holders of the
Depositary Receipts) which shall materially adversely alter the rights of
holders of Depositary Receipts shall be effective unless such amendment shall
have been approved by at least a majority of the Depositary Shares then
outstanding. The holder of this Depositary Receipt at the time any such
amendment becomes effective shall be deemed, by continuing to hold this
Depositary Receipt, to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the owner of the Depositary
Shares evidenced by this Depositary Receipt to surrender this Depositary
Receipt with instructions to the Depositary to deliver to the holder the Stock
and all money and other property, if any, represented thereby, except in order
to comply with mandatory provisions of applicable law.
9. CHARGES AND EXPENSES. The Company will pay all transfer and other taxes and
governmental charges arising solely from the existence of the depositary
arrangement, except such charges as are expressly provided in the Deposit
Agreement to be at the expense of holders of Depositary Receipts.
10. TITLE TO DEPOSITARY RECEIPTS. Title to this Depositary Receipt, when
properly endorsed or accompanied by a properly executed instrument of transfer,
is transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that the Depositary may, notwithstanding any
notice to the contrary, treat the record holder hereof at such time as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement and for all other purposes.
11. DIVIDENDS AND DISTRIBUTIONS. Whenever the Depositary shall receive any cash
distribution on the Stock, the Depositary shall, subject to the provisions of
the Deposit Agreement, distribute to record holders of Depositary Receipts such
amounts of such sums as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Depositary Receipts
held by such holders; provided, however, that in case the Company or the
Depositary shall be required by law to withhold and does withhold from any cash
distribution in respect of the Stock an amount on account of taxes or as
otherwise required by law, regulation or court process, the amount made
available for distribution or distributed in respect of Depositary Shares shall
be reduced accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Receipts a fraction
of one cent, and any balance not so distributable shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
be treated as part of the next sum received by the Depositary for distribution
to record holders of Depositary Receipts then outstanding.
12. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall at any
time offer or cause to be offered to the persons in whose name Stock is
registered on the books of the Company any rights, preferences or privileges to
subscribe for or to purchase any securities or any rights, preferences or
privileges of any other nature, such rights, preferences or privileges shall in
each such instance, subject to the provisions of the Deposit Agreement, be made
available by the Depositary to the record holders of Depositary Receipts in
such manner as the Company shall instruct.
13. NOTICE OF DISTRIBUTIONS, FIXING OF RECORD DATE. Whenever (i) any cash
distribution shall become payable, or any distribution other than cash shall be
made, or any rights, preferences or privileges shall at any time be offered,
with respect to the Stock, (ii) the Depositary shall receive notice of any
meeting at which holders of Stock are entitled to vote or of which holders of
Stock are entitled to notice or (iii) the Depositary shall receive notice of
any election on the part of the Company to redeem any shares of Stock, the
Depositary shall in each such instance fix a re-
<PAGE> 24
cord date (which shall be the same date as the record date fixed by the Company
with respect to the Stock) for the determination of the holders of Depositary
Receipts (x) who shall be entitled to receive such dividend, distribution,
rights, preferences or privileges or the net proceeds of the sale thereof, or
(y) who shall be entitled to give instructions for the exercise of voting
rights at any such meeting or to receive notice of such meeting or whose
Depositary Shares are to be so redeemed.
14. VOTING RIGHTS. Upon receipt of notice of any meeting at which the holders
of Stock are entitled to vote, the Depositary shall, as soon as practicable
thereafter, mail to the record holders of Depositary Receipts a notice, which
shall contain (i) such information as is contained in such notice of meeting,
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the Stock represented by their respective Depositary Shares, and (iii) a brief
statement as to the manner in which such instructions may be given. Upon the
written request of a holder of this Depositary Receipt on such record date the
Depositary shall vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Depositary Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to take all
action that may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of this Depositary Receipt, the
Depositary will abstain from voting to the extent of the Stock represented by
the Depositary Shares evidenced by this Depositary Receipt.
15. REPORTS, INSPECTION OF TRANSFER BOOKS. The Depositary shall transmit to the
record holders of Depositary Receipts copies of all reports and communications
received from the Company that are received by the Depositary as the holder of
Stock. The Depositary shall keep books at the Corporate Office for the
registration and transfer of Depositary Receipts, which books at all reasonable
times will be open for inspection by the record holders of Depositary Receipts;
provided that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares.
16. LIABILITY OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE
COMPANY. Neither the Depositary nor any Depositary's Agent nor the Registrar
nor the Company shall incur any liability to any holder of this Depositary
Receipt, if by reason of any provision of any present or future law or
regulation thereunder of any governmental authority or, in the case of the
Depositary, the Registrar or any Depositary's Agent, by reason of any provision
present or future, of the Articles of Incorporation or the Articles
Supplementary by reason of any act of God or war or other circumstances beyond
the control of the relevant party, the Depositary, any Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of the Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
the Registrar or the Company incur any liability to any holder of this
Depositary Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of the Deposit
Agreement provide shall or may be done or performed, or (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement.
17. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND
THE COMPANY. Neither the Depositary nor any Depositary's Agent nor the
Registrar nor the Company assumes any obligation or shall be subject to any
liability under the Deposit Agreement or this Depositary Receipt to the holder
hereof or other persons, other than for its negligence, gross negligence,
willful misconduct or bad faith. Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with respect to
Stock, Depositary Shares or Depositary Receipts that in its reasonable opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor the Registrar nor the
Company will be liable for any action or failure to act by it in reliance upon
the written advice of or information from legal counsel or accountants or
information provided by any person presenting Stock for deposit, any holder of
this Depositary Receipt or any other person believed by it in good faith to be
competent to give such advice or information.
18. TERMINATION OF DEPOSIT AGREEMENT. The Deposit Agreement may be terminated
by the Company upon not less than 30 days' prior written notice to the
Depositary if (i) such termination is necessary to preserve the Com-
<PAGE> 25
pany's status as a real estate investment trust under the Internal Revenue Code
of 1986, as amended (or any successor provision) or (ii) the holders of a
majority of the Stock consent to such termination, whereupon the Depositary
shall deliver or make available to each holder of a Depositary Receipt, upon
surrender of the Depositary Receipt held by such holder, such number of whole
or fractional shares of deposited Stock as are represented by the Depositary
Shares evidenced by such Depositary Receipt, together with any other property
held by the Depositary in respect of such Depositary Receipt. Upon the
termination of the Deposit Agreement, the Company shall be discharged to all
obligations thereunder except for its obligations to the Depositary, any
Depositary's Agent and any Registrar under Sections 5.6 and 5.7 of the Deposit
Agreement.
19. GOVERNING LAW. The Deposit Agreement and this Depositary Receipt and all
rights thereunder and hereunder and provisions thereof and hereof shall be
governed by, and construed in accordance with, the law of the State of New York
without giving effect to principles of conflict of laws.
The following abbreviations, when used in the inscription on the face of this
Depositary Receipt shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM = as tenants in common
TEN ENT = as tenants by the entireties
JT TEN = as joint tenants with right
of survivorship and not
as tenants in common
UNIF GIFT MIN ACT . . . . . . . . . . . . . . Custodian
(Cust) (Minor)
under Uniform Gifts to Minors
Act
(State)
UNIF TRF MIN ACT . . . . . . . . . . . . Custodian (until age)
(Cust)
. . . . . . . . . . . . . . . . . . . . . . . . under Uniform Transfers
(Minor)
to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please print or typewrite name and address including postal zip code of
assignee)
Depositary Shares represented by the within Depositary Receipt, and do hereby
irrevocably constitute and appoint
- -----------------------------------------------------------------------Attorney
to transfer the said Depositary Shares on the books of the within named
Depositary with full power of substitution
Dated Signed
<PAGE> 26
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THIS DEPOSITARY RECEIPT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
Signature(s) Guaranteed:
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-16.
<PAGE> 1
EXHIBIT 4.04
[FORM OF EQUITY WARRANT AGREEMENT]
NEW PLAN EXCEL REALTY TRUST, INC.
AND
______________________________, AS WARRANT AGENT
[COMMON/PREFERRED STOCK] [DEPOSITARY SHARE]
WARRANT AGREEMENT
DATED AS OF ______________, ____
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
PARTIES 1
RECITALS 1
SECTION 1. Appointment of Warrant Agent 1
SECTION 2. Form of Warrant 1
SECTION 3. Countersignature and Registration 2
SECTION 4. Transfers and Exchanges 2
SECTION 5. Exercise of Warrants 2
SECTION 6. Payment of Taxes 3
SECTION 7. Mutilated or Missing Warrants 3
SECTION 8. Reservation of Shares, etc. 3
SECTION 9. Warrant Price; Adjustments 4
SECTION 10. Notice to Warrantholders 9
SECTION 11. Certain Covenants of the Company 9
SECTION 12. Disposition of Proceeds, etc. 10
SECTION 13. Merger or Consolidation or Change of Name of Warrant Agent 10
SECTION 14. Duties of Warrant Agent 10
SECTION 15. Change of Warrant Agent 12
SECTION 16. Identity of Transfer Agent 12
SECTION 17. Notices 12
SECTION 18. Supplements and Amendments 13
SECTION 19. Successors 13
SECTION 20. Governing Law 13
SECTION 21. Benefits of This Agreement 13
SECTION 22. Counterparts 13
[SECTION 23. Acceleration of Warrants by the Company 13]
TESTIMONIUM 14
SIGNATURES 14
EXHIBIT A: Form of Warrant A-1
</TABLE>
<PAGE> 3
[COMMON/PREFERRED STOCK] [DEPOSITARY SHARE]
WARRANT AGREEMENT
[COMMON/PREFERRED STOCK] [DEPOSITARY SHARE] WARRANT AGREEMENT, dated as of
__________________, _____ between New Plan Excel Realty Trust, Inc., a Maryland
corporation (hereinafter called the "Company"), and ____________________, having
a corporate trust office in __________________, as warrant agent (hereinafter
called the "Warrant Agent").
WHEREAS, the Company proposes to issue [Class __] Purchase Warrants
(hereinafter called the "Warrants") entitling the holders thereof to purchase an
aggregate of ______ [shares of Common/Preferred Stock] [Depositary Shares] of
the Company [(par value $.01 per share)] (hereinafter called the "Shares") at an
initial cash purchase price of $_____ per Share at any time [after __________
and] before [____] p.m., [City] time, on ________, ____ (hereinafter called the
"Expiration Date") (unless extended as provided in Section 9A hereof); and
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT -
WHEREAS, the Warrants will be offered in Units, each of which consists
of ________________ and Warrants to purchase _______ Shares; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, registration, transfer, exchange and exercise of Warrants to be issued
from time to time by the Company;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
SECTION 1. APPOINTMENT OF WARRANT AGENT. The Company hereby appoints
the Warrant Agent to act as agent for the Company in accordance with the
instructions hereinafter in this Agreement set forth, and the Warrant Agent
hereby accepts such appointment.
SECTION 2. FORM OF WARRANT. The text of the Warrants and the form of
election to purchase Shares to be set forth on the reverse thereof shall be
substantially as set forth in Exhibit A attached hereto. Each Warrant shall,
subject to the terms of this Warrant Agreement, entitle the registered holder
thereof to initially purchase the number of Shares specified therein at an
initial exercise price of $_____ per Share; provided, however, that the Warrant
Exercise Price and the number of Shares issuable upon exercise of Warrants are
subject to adjustment upon the occurrence of certain events, all as hereinafter
provided. The Warrants shall be executed on behalf of the Company by the manual
or facsimile signature of the present or any future Chairman of the Board,
President or Vice President of the Company, under its seal, affixed or in
facsimile, and by the manual or facsimile signature of the present or any future
Secretary or Assistant Secretary of the Company.
The Company shall promptly notify the Warrant Agent from time to time
in writing of the number of Warrants to be issued and furnish written
instructions in connection therewith signed by an execu-
-1-
<PAGE> 4
tive officer of the Company; such notification and instructions may, but need
not be, in the form of a general or continuing authorization to the Warrant
Agent.
The Warrants shall be dated by the Warrant Agent as of the date of each
initial issuance, and as of the date of issuance thereof upon any transfer or
exchange thereof.
SECTION 3. COUNTERSIGNATURE AND REGISTRATION. The Warrant Agent shall
maintain books for the transfer and registration of the Warrants. Upon the
initial issuance of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective registered holders thereof. The Warrants
shall be countersigned by the Warrant Agent (or by any successor to the Warrant
Agent then acting as warrant agent under this Agreement) and shall not be valid
for any purpose unless so countersigned. Such Warrants may be so countersigned,
however, by the Warrant Agent (or by its successor as warrant agent) and be
delivered by the Warrant Agent, notwithstanding that the persons whose manual or
facsimile signatures appear thereon as proper officers of the Company shall have
ceased to be such officers at the time of such countersignature or delivery.
Upon issuance of any Warrant, the Company will present the same, or cause the
same to be presented, to the Warrant Agent for countersignature of such Warrant.
SECTION 4. TRANSFERS AND EXCHANGES. The Warrant Agent shall transfer,
from time to time, any outstanding Warrants upon the books to be maintained by
the Warrant Agent for that purpose, upon the surrender thereof for transfer
properly endorsed or accompanied by appropriate instructions for transfer. Upon
any such transfer, a new Warrant of like tenor shall be issued to the transferee
and the surrendered Warrant shall be canceled by the Warrant Agent. All such
Warrants so canceled shall be delivered by the Warrant Agent to the Company from
time to time. The Warrants may be exchanged at the option of the holder thereof,
when surrendered at the office in ____________________ of the Warrant Agent, for
another Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Shares. The
Warrant Agent is hereby irrevocably authorized to countersign and deliver, in
accordance with the provisions of this Section and Section 3 of this Agreement,
such new Warrants required pursuant to the provisions of this Section, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrants duly executed on behalf of the Company for such purpose.
[IF THE WARRANTS ARE ATTACHED TO OTHER SECURITIES, INSERT -
Notwithstanding the foregoing, until ________________________, the
Warrants shall not be transferable apart from the _______________________ to
which they are attached, any transfer of the _____________________________ shall
be deemed a transfer of the Warrants attached thereto, and any attempt to
transfer the Warrants apart from the _________ shall be void and of no effect.
Each Warrant shall contain a legend to the foregoing effect.]
SECTION 5. EXERCISE OF WARRANTS. The registered holder of each Warrant
shall have the right, which may be exercised as in such Warrant expressed, to
purchase from the Company (and the Company shall issue and sell to such
registered holder) the number of Shares specified in such Warrant, upon
surrender to the Company, at the office in ________________________________ of
the Warrant Agent of such Warrant, with the form of election to purchase on the
reverse thereof duly filled in and signed, and upon payment to the Warrant Agent
for the account of the Company of the Warrant Exercise Price, determined in
accordance with the provisions of Section 9 of this Agreement, for the number of
Shares in respect of which such Warrant is then exercised. Payment of such
Warrant Exercise Price may be made in cash, or by certified check or bank draft
or postal or express money order, payable
-2-
<PAGE> 5
in United States dollars, to the order of the Warrant Agent. No adjustment shall
be made for any dividends on any Shares issuable upon exercise of any Warrant.
Subject to Section 6, upon such surrender of Warrants, and payment of the
Warrant Exercise Price as aforesaid, the Company shall issue and cause to be
delivered with all reasonable dispatch to or upon the written order of the
registered holder of such Warrants, and in such name or names as such registered
holder may designate, a certificate or certificates for the number of full
Shares so purchased upon the exercise of such Warrants, together with cash, as
provided in Section 9 of this Agreement, in respect of any fraction of a Share
otherwise issuable upon such surrender. Such certificate or certificates shall
be deemed to have been issued and any person so designated to be named therein
shall be deemed to have become a holder of record of such Shares as of the date
of the surrender of such Warrants and payment of the Warrant Exercise Price as
aforesaid; provided, however, that if, at the date of surrender of such Warrants
and payment of such Warrant Exercise Price, the transfer books for the Shares
purchasable upon the exercise of such Warrants shall be closed, no such
surrender of such Warrants and no such payment of such Warrant Exercise Price
shall be effective to constitute the person so designated to be named therein as
the holder of record of such Shares on such date, but shall be effective to
constitute such person as the holder of record of such Shares for all purposes
at the opening of business on the next succeeding day on which the transfer
books for the Shares purchasable upon the exercise of such Warrants shall be
opened, and the certificates for the Shares in respect of which such Warrants
are then exercised shall be issuable as of the date on which such books shall
next be opened, and until such date the Company shall be under no duty to
deliver any certificate for such Shares. The rights of purchase represented by
the Warrants shall be exercisable, at the election of the registered holders
thereof, either as an entirety or from time to time for part only of the Shares
specified therein and, in the event that any Warrant is exercised in respect of
less than all of the Shares specified therein at any time before the Expiration
Date of the Warrants, a new Warrant or Warrants of like tenor will be issued for
the remaining number of Shares specified in the Warrant so surrendered, and the
Warrant Agent is hereby irrevocably authorized to countersign and to deliver the
required new Warrants pursuant to the provisions of this Section and of Section
3 of this Agreement, and the Company, whenever required by the Warrant Agent,
will supply the Warrant Agent with Warrants duly executed on behalf of the
Company for such purpose.
SECTION 6. PAYMENT OF TAXES. The Company will pay any documentary stamp
taxes attributable to the initial issuance of Shares issuable upon the exercise
of Warrants; provided, however, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue or delivery of any certificates for Shares in a name other than that of
the registered holder of Warrants in respect of which such Shares are issued and
the Company shall not be required to issue and deliver the certificates for such
Shares unless and until the holder has paid to the Company the amount of any tax
which may be payable in respect of any transfer involved in such issuance or
shall establish to the satisfaction of the Company that such tax has been paid.
SECTION 7. MUTILATED OR MISSING WARRANTS. In case any of the Warrants
shall be mutilated, lost, stolen or destroyed, the Company will issue and the
Warrant Agent will countersign and deliver in exchange and substitution for and
upon cancellation of the mutilated Warrant, or in lieu of and substitution for
the Warrant mutilated, lost, stolen or destroyed, a new Warrant of like tenor
and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company and the Warrant Agent of the mutilation,
loss, theft or destruction of such Warrants and indemnity, if requested, also
satisfactory to them. Applicants for such substitute Warrants shall also comply
with such other reasonable regulations and pay such other reasonable charges as
the Company or the Warrant Agent may prescribe. Any such new Warrant shall
constitute an original contractual obligation of the Company whether or not the
allegedly mutilated, lost, stolen or destroyed Warrant shall be at any time
enforceable by anyone.
-3-
<PAGE> 6
SECTION 8. RESERVATION OF SHARES, ETC. Before the issuance of any
Warrants there shall have been reserved, and the Company shall at all times
through the Expiration Date keep reserved, out of its authorized and unissued
[Common/Preferred] Stock, a number of shares sufficient to provide for the
exercise of the rights of purchase represented by the Warrants, and the Transfer
Agent for such shares and every subsequent Transfer Agent for such shares are
hereby irrevocably authorized and directed at all times to reserve such number
of authorized and unissued shares as shall be requisite for such purpose. The
Company will keep a copy of this Agreement on file with the Transfer Agent for
such shares and with every subsequent Transfer Agent for such shares. The
Warrant Agent is hereby irrevocably authorized to requisition from time to time
from such Transfer Agent certificates required to honor outstanding Warrants
that have been exercised. The Company will supply such Transfer Agent with duly
executed certificates for such purpose and will itself provide or otherwise make
available any cash which may be issuable as provided in Section 9 of this
Agreement. All Warrants surrendered in the exercise of the rights thereby
evidenced or surrendered for transfer, exchange or partial exercise shall be
canceled by the Warrant Agent and shall thereafter be delivered to the Company.
SECTION 9. WARRANT PRICE; ADJUSTMENTS. A. The warrant price per share
at which the Shares shall be purchasable upon exercise of Warrants (herein
called the "Warrant Exercise Price") to and including the Expiration Date
(unless the Expiration Date is extended as provided below in this Section 9A)
shall be $____ per Share, or, if adjusted as provided in this Section, shall be
such price as so adjusted. The Warrants will not be exercisable before [the
close of business on the date of any initial issuance thereof]
[_________________] and will expire at [_______] p.m., [City] time, on the
Expiration Date; provided, however, that the Company reserves the right to, and
may, in its sole discretion, at any time and from time to time, at such time or
times as the Company so determines, extend the Expiration Date of the Warrants
for such periods of time as it chooses; further provided that in no case may the
Expiration Date of the Warrants (as extended) be extended beyond five years from
the Expiration Date set forth above. Whenever the Expiration Date of the
Warrants is so extended, the Company shall at least 20 days before the then
Expiration Date cause to be mailed to the Warrant Agent and the registered
holders of the Warrants in accordance with the provisions of Section 17 hereof a
notice stating that the Expiration Date has been extended and setting forth the
new Expiration Date.
B. The above provision is, however, subject to the following:
(1) The Warrant Exercise Price, the number of Shares
purchasable upon exercise of each Warrant and the number of
Warrants outstanding shall be subject to adjustment as
follows:
(a) In case the Company shall at any time after the
date of this Agreement (i) pay a dividend, or make a
distribution, on shares of its [Common/Preferred] Stock which
is payable in shares of its capital stock (whether shares of
[Common/Preferred] Stock or of capital stock of any other
class), (ii) subdivide or reclassify its outstanding shares of
[Common/Preferred] Stock into a greater number of securities
(including shares of [Common/Preferred] Stock), or (iii)
combine or reclassify outstanding shares of [Common/Preferred]
Stock into a smaller number of Shares (including shares of
[Common/Preferred] Stock), the number of Shares purchasable
upon exercise of each Warrant immediately before the
occurrence of such event shall be adjusted so that the holder
of each Warrant shall be entitled to receive upon payment of
the Warrant Exercise Price the aggregate number of Shares of
the Company which, if such Warrant had been exercised
immediately before the occurrence of such event, such holder
would have
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<PAGE> 7
owned or have been entitled to receive immediately after the
occurrence of such event. An adjustment made pursuant to this
subparagraph (a) shall become effective immediately after the
record date in the case of a dividend and shall become
effective immediately after the effective date in the case of
a subdivision or combination. If, as a result of an adjustment
made pursuant to this subparagraph (a), the holder of any
Warrant thereafter exercised shall become entitled to receive
shares of two or more classes of capital stock of the Company,
the Board of Directors of the Company (whose determination
shall be conclusive) shall determine the allocation between or
among shares of such classes of capital stock. In the event
that at any time, as a result of an adjustment made pursuant
to this subparagraph (a), the holder of any Warrant thereafter
exercised shall become entitled to receive any shares or other
securities of the Company other than Shares of
[Common/Preferred] Stock, thereafter the number of such other
shares so received upon exercise of any Warrant shall be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
with respect to the Shares of [Common/Preferred] Stock
contained in this paragraph, and the other provisions of this
paragraph 9B(1) with respect to the Shares of
[Common/Preferred] Stock shall apply on like terms to any such
other shares or other securities.
(b) In case the Company shall fix a record date for
the issuance of rights or warrants to all holders of its
[Common/Preferred] Stock entitling them (for a period expiring
within 45 days after such record date) to subscribe for or
purchase [Common/Preferred] Stock at a price per share less
than the current market price per share of [Common/Preferred]
Stock (as defined in subparagraph (e) below) at such record
date, the Warrant Exercise Price shall be determined by
multiplying the Warrant Exercise Price in effect immediately
before such record date by a fraction, the numerator of which
shall be the number of shares of [Common/Preferred] Stock
outstanding on such record date plus the number of shares of
[Common/Preferred] Stock which the aggregate offering price of
the total number of shares so offered would purchase at such
current market price, and the denominator of which shall be
the number of shares of [Common/Preferred] Stock outstanding
on such record date plus the number of additional Shares of
[Common/Preferred] Stock offered for subscription or purchase.
Such adjustment shall be made successively whenever such a
record date is fixed, and shall become effective immediately
after such record date. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase
Shares of [Common/Preferred] Stock] at less than such current
market price, and in determining the aggregate offering price
of such Shares, there shall be taken into account any
consideration received by the Company for such rights or
warrants, the value of such consideration, if other than cash,
to be determined by the Board of Directors of the Company.
[Common/Preferred] Stock owned by or held for the account of
the Company or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required
under this subparagraph (b).
(c) In case the Company shall fix a record date for
making a distribution to all holders of its [Common/Preferred]
Stock of evidences of its indebtedness or assets (excluding
regular quarterly or other periodic or recurring cash
dividends or distributions and cash dividends or distributions
paid from retained earnings or referred to in subparagraph (a)
above) or rights or warrants to subscribe or warrants to
purchase (excluding those referred to in subparagraph (b)
above), then in each such case the Warrant Exercise Price
shall be determined by multiplying the Warrant Exercise Price
in effect immedi-
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<PAGE> 8
ately before such record date by a fraction (x) the numerator
of which shall be such current market price (as defined in
subparagraph (e) below) per share of [Common/Preferred] Stock
on such record date, less the then fair market value (as
determined in good faith by the Board of Directors, whose
determination shall be conclusive) of the portion of the
assets or evidences of indebtedness so distributed or of such
subscription rights or warrants applicable to one share of the
[Common/Preferred] Stock and (y) the denominator of which
shall be the current market price per share of the
[Common/Preferred] Stock on such record date. Such adjustment
shall be made successively whenever such a record date is
fixed and shall become effective immediately after such record
date. Notwithstanding the foregoing, in the event that the
Company shall distribute any rights or warrants to acquire
capital stock ("Rights") pursuant to this subparagraph (c),
the distribution of separate certificates representing such
Rights after their initial distribution (whether or not such
distribution shall have occurred before the date of the
issuance of such Warrants) shall be deemed to be the
distribution of such Rights for purposes of this subparagraph
(c), provided, however, that the Company may, in lieu of
making any adjustment pursuant to this subparagraph (c) upon a
distribution of separate certificates representing such
Rights, make proper provision so that each holder of such
Warrants who exercises such Warrants (or any portion thereof)
(A) before the record date for such distribution of separate
certificates shall be entitled to receive upon such exercise
[shares of Common/Preferred Stock] [Depositary Shares] issued
with Rights and (B) after such record date and before the
expiration, redemption or termination of such Rights shall be
entitled to receive upon such exercise, in addition to the
[shares of Common/Preferred Stock] [Depositary Shares]
issuable upon such exercise, the same number of such Rights as
would a holder of the number of [shares of Common/Preferred
Stock] [Depositary Shares] that such Warrants so exercised
would have entitled the holder thereof to purchase in
accordance with the terms and provisions of and applicable to
the Rights if such Warrants were exercised immediately before
the record date for such distribution. [Common/Preferred
Stock] [Depositary Shares] owned by or held for the account of
the Company or any majority owned subsidiary shall not be
deemed outstanding for the purpose of any adjustment required
under this subparagraph (c).
(d) After each adjustment of the number of Shares
purchasable upon exercise of each Warrant pursuant to
subparagraph 9B(1)(a), the Warrant Exercise Price shall be
adjusted by multiplying such Warrant Exercise Price
immediately before such adjustment by a fraction of which the
numerator shall be the number of Shares purchasable upon
exercise of each Warrant immediately before such adjustment,
and the denominator of which shall be the number of Shares so
purchasable immediately thereafter. After each adjustment of
the Warrant Exercise Price pursuant to subparagraph 9B(1)(b)
or (c), the total number of Shares or fractional part thereof
purchasable upon the exercise of each Warrant shall be
proportionately adjusted to such number of Shares or
fractional parts thereof as the aggregate Warrant Exercise
Price of the number of Shares or fractional part thereof
purchasable immediately before such adjustment will buy at the
adjusted Warrant Exercise Price.
(e) For the purpose of any computation under
subparagraphs 9B(1)(b) and (c) above, the current market price
per [share of Common/Preferred Stock] [Depositary Share] at
any date shall be deemed to be the average of the daily
closing prices for the 30 consecutive trading days commencing
45 trading days before the day in question. The
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<PAGE> 9
closing price for each day shall be (i) if the [Common/
Preferred Stock is] [Depositary shares are] listed or admitted
for trading on the New York Stock Exchange, the last sale
price (regular way), or the average of the closing bid and
asked prices (regular way), if no sale occurred, of
[Common/Preferred Stock] [Depositary Shares], in either case
as reported on the New York Stock Exchange Composite Tape or,
if the [Common/Preferred Stock is] [Depositary Shares are] not
listed or admitted to trading on the New York Stock Exchange,
on the principal national securities exchange on which the
[Common/Preferred Stock is] [Depositary Shares are] listed or
admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the National Market
System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, (ii) if not listed
or quoted as described in (i), the mean between the closing
high bid and low asked quotations of [Common/Preferred Stock]
[Depositary Shares] reported by NASDAQ, or any similar system
for automated dissemination of quotations of securities prices
then in common use, if so quoted, or (iii) if not quoted as
described in clause (ii), the mean between the high bid and
low asked quotations for [Common/Preferred Stock] [Depositary
Shares] as reported by the National Quotation Bureau
Incorporated if at least two securities dealers have inserted
both bid and asked quotations for [Common/Preferred Stock]
[Depositary Shares] on at least 5 of the 10 preceding trading
days. If none of the conditions set forth above is met, the
closing price of [Common/Preferred Stock] [Depositary Shares]
on any day or the average of such closing prices for any
period shall be the fair market value of [Common/Preferred
Stock] [Depositary Shares] as determined by a member firm of
the New York Stock Exchange selected by the Company.
(f) (A) Nothing contained herein shall be construed
to require an adjustment as a result of the issuance of
[Common/Preferred Stock] [Depositary Shares] pursuant to, or
the granting or exercise of any rights under, the Company's
[LIST EMPLOYEE AND STOCKHOLDER PLANS, IF ANY, THAT MIGHT
OTHERWISE RESULT IN ADJUSTMENTS]; and (B) in addition, no
adjustment in the Warrant Exercise Price shall be required
unless and until the earlier of the following shall have
occurred: (x) such adjustment would require an increase or
decrease of at least 1% in the Warrant Exercise Price or (y) a
period of three years shall have elapsed from the date of the
occurrence of any event requiring any such adjustment pursuant
to subparagraphs 9B(1)(a), (b) or (c) above. All adjustments
shall be made to the nearest one hundredth of a share and the
nearest cent, and any adjustments which by reason of this
subparagraph (f) are not required to be made shall be carried
forward cumulatively and taken into account in any subsequent
adjustment which (including such carryforward) is required to
be made under this subparagraph (f).
(g) In any case in which this subparagraph 9B(1)
shall require that an adjustment be made retroactively
immediately following a record date, the Company may elect to
defer (but only until five business days following the mailing
of the notice described in subparagraph 9B(5) below) issuing
to the holder of any Warrant exercised after such record date
the Shares issuable upon such exercise over and above the
Shares issuable upon such exercise only on the basis of the
Warrant Exercise Price before adjustment.
(h) The Company may, at its option, at any time until
the Expiration Date, reduce the then current Warrant Exercise
Price to any amount deemed appropriate by the
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<PAGE> 10
Board of Directors of the Company for any period not exceeding
20 consecutive days (as evidenced in a resolution adopted by
such Board of Directors), but only upon giving the notices
required by subparagraph 9B(5) 20 days before taking such
action.
(i) Except as herein otherwise expressly provided, no
adjustment in the Warrant Exercise Price shall be made by
reason of the issuance of Shares, or securities convertible
into or exchangeable for Shares, or securities carrying the
right to purchase any of the foregoing or for any other reason
whatsoever.
(j) Irrespective of any of the adjustments in the
Warrant Exercise Price or the number of Shares, Warrant
Certificates theretofore issued may continue to express the
same prices and number of Shares as are stated in a similar
Warrant Certificate issuable initially, or at some subsequent
time, pursuant to this Agreement and such number of Shares
specified therein shall be deemed to have been so adjusted.
(2) No fractional [shares of Common/Preferred Stock]
[Depositary Shares] shall be issued upon the exercise of Warrants. If
more than one Warrant shall be exercised at one time by the same
holder, the number of full Shares which shall be issuable upon such
exercise shall be computed on the basis of the aggregate number of
Shares purchased pursuant to the Warrants so exercised. Instead of any
fractional [share of Common/Preferred Stock] [Depositary Shares] which
would otherwise be issuable upon exercise of any Warrant, the Company
shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the last sales price (or bid price if
there were no sales) per [share of Common/Preferred Stock] [Depositary
Share], in either case as reported on the New York Stock Exchange
Composite Tape on the trading day which next precedes the day of
exercise or, if the [Common/Preferred Stock is] [Depositary Shares are]
not then listed or admitted to trading on the New York Stock Exchange,
an amount equal to the same fraction of the market price per [share of
Common/Preferred Stock] [Depositary Share] (as determined in a manner
described by the Board of Directors of the Company) at the close of
business on the trading day which next precedes the day of exercise.
(3) In case any of the following shall occur while any
Warrants are outstanding: (a) any reclassification or change of the
outstanding shares of [Common/Preferred] Stock (other than a change in
par value, or from par value to no par value, or from no par value to
par value); or (b) any consolidation or merger to which the Company is
a party (other than a consolidation or a merger in which the Company is
the continuing entity and which does not result in any reclassification
of, or change in, the outstanding Shares issuable upon exercise of the
Warrants); or (c) any sale or conveyance of the property of the Company
as an entirety or substantially as an entirety; then the Company, or
such successor or purchaser, as the case may be, shall make appropriate
provision by amendment of this Agreement or otherwise so that the
holders of the Warrants then outstanding shall have the right at any
time thereafter, upon exercise of such Warrants, to purchase the kind
and amount of shares of stock and other securities and property
receivable upon such reclassification, change, consolidation, merger,
sale or conveyance as would be received by a holder of the number of
[shares of Common/Preferred Stock] [Depositary Shares] issuable upon
exercise of such Warrant immediately before such reclassification,
change, consolidation, merger, sale or conveyance. Such provision shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 9. The
above provisions of this subparagraph 9B(3) shall similarly apply to
successive reclassifications, changes, consolidations, mergers, sales
or conveyances.
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<PAGE> 11
(4) Before taking any action which would cause an adjustment
decreasing the Warrant Exercise Price so that the Warrant Exercise
Price is below the then par value of the shares of [Common/Preferred]
Stock, the Company will take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable [shares of
Common/Preferred Stock] [Depositary Shares] at the Warrant Exercise
Price as so adjusted.
(5) Whenever the Warrant Exercise Price then in effect is
adjusted as herein provided, the Company shall mail to each holder of
the Warrants at such holder's address as it shall appear on the books
of the Company a statement setting forth the adjusted Warrant Exercise
Price then and thereafter effective under the provisions hereof,
together with the facts, in reasonable detail, upon which such
adjustment is based.
(6) In case (i) the Company shall declare a dividend (or any
other distribution) on its [Common/Preferred] Stock payable otherwise
than in cash out of its current or retained earnings, or (ii) the
Company shall authorize the granting to the holders of its
[Common/Preferred] Stock of rights to subscribe for or purchase any
shares of capital stock of any class or of any other rights, or (iii)
there is to be any reclassification of the [Common/Preferred] Stock of
the Company (other than a subdivision or combination of its outstanding
shares of [Common/Preferred] Stock, or any consolidation or merger to
which the Company is a party and for which approval of any stockholders
of the Company is required, or (iv) any distribution is to be made on
or in respect of the [Common/Preferred] Stock in connection with the
dissolution, liquidation or winding up of the Company, then the Company
shall mail to each holder of Warrants at such holder's address as it
shall appear on the books of the Company, at least 20 days (or 10 days
in any case specified in clause (i) or (ii) above) before the
applicable record date hereinafter specified, a notice stating (x) the
record date for such dividend, distribution or rights, or, if a record
is not to be taken, the date as of which the holders of
[Common/Preferred] Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, dissolution, liquidation
or winding up is expected to become effective, and the date as of which
it is expected that holders of [Common/Preferred] Stock of record shall
be entitled to exchange their shares of [Common/Preferred] Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, dissolution, liquidation or winding up. No
failure to mail such notice nor any defect therein or in the mailing
thereof shall affect any such transaction or any adjustment in the
Warrant Exercise Price required by this Section 9.
SECTION 10. NOTICE TO WARRANTHOLDERS. Nothing contained in this
Agreement or in any of the Warrants shall be construed as conferring upon the
holders thereof the right to vote or to consent or to receive notice as
stockholders in respect of the meetings of stockholders or the election of
directors of the Company or any other matter, or any rights whatsoever as
stockholders of the Company.
SECTION 11. CERTAIN COVENANTS OF THE COMPANY.
A. So long as any unexpired Warrants remain outstanding and if required
in order to comply with the Securities Act of 1933, as amended (the "Act"), the
Company covenants and agrees that it will file such post-effective amendments to
the registration statement filed pursuant to the Act with respect to the
Warrants (or such other registration statements or post-effective amendments or
supplements) as may be necessary to permit the Company to deliver to each person
exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3)
of the Act and otherwise complying therewith, and
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<PAGE> 12
will deliver such a prospectus to each such person. The Company further
covenants and agrees that it will obtain and keep effective all permits,
consents and approvals of governmental agencies and authorities, and will use
its best efforts to take all action which may be necessary to qualify the Shares
for sale under the securities laws of such of the United States, as may be
necessary to permit the free exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants, and to
maintain such qualifications during the entire period in which the Warrants are
exercisable.
B. The Company covenants and agrees that it shall take all such action
as may be necessary to ensure that all Shares will at the time of delivery of
certificates for such Shares (subject to payment of the Warrant Exercise Price)
be duly and validly authorized and issued and fully paid and nonassessable
Shares, free from any preemptive rights and taxes, liens, charges and security
interests created by or imposed upon the Company.
C. The Company covenants and agrees that it will take all action which
may be necessary to cause the Shares to be duly listed on the New York Stock
Exchange or another securities exchange or the interdealer quotation system on
which the other [shares of Common/Preferred Stock] [Depositary Shares] of the
Company are listed at the dates of exercise of the Warrants.
SECTION 12. DISPOSITION OF PROCEEDS, ETC.
A. The Warrant Agent shall account promptly to the Company with respect
to Warrants exercised and concurrently pay to the Company all moneys received by
the Warrant Agent for the purchase of Shares through the exercise of such
Warrants.
B. The Warrant Agent shall keep copies of this Agreement available for
inspection by holders of Warrants during normal business hours at its principal
office in the City of __________________, ____________.
SECTION 13. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF WARRANT AGENT.
Any entity into which the Warrant Agent may be merged or with which it may be
consolidated, or any entity resulting from any merger or consolidation to which
the Warrant Agent shall be a party, or any entity succeeding to the corporate
trust business of the Warrant Agent, shall be the successor to the Warrant Agent
hereunder without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such entity would be eligible
for appointment as a successor Warrant Agent under the provisions of Section 15
of this Agreement. In case at the time such successor to the Warrant Agent shall
succeed to the agency created by this Agreement, and if any of the Warrants
shall have been countersigned but not delivered, any such successor to the
Warrant Agent may adopt the countersignature of the original Warrant Agent and
deliver such Warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, any successor to the Warrant Agent
may countersign such Warrants either in the name of the predecessor Warrant
Agent or in the name of the successor Warrant Agent; and in all such cases such
Warrant shall have the full force provided in the Warrants and in this
Agreement.
In case at any time the name of the Warrant Agent shall be changed and
at such time any of the Warrants shall have been countersigned but not
delivered, the Warrant Agent may adopt the countersignature under its prior name
and deliver Warrants so countersigned; and in case at that time any of the
Warrants shall not have been countersigned, the Warrant Agent may countersign
such Warrants either in its prior name or in its changed name; and in all such
cases such Warrants shall have the full force provided in the Warrants and in
this Agreement.
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<PAGE> 13
SECTION 14. DUTIES OF WARRANT AGENT. The Warrant Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Warrants, by their
acceptance thereof, shall be bound:
A. The statements contained herein and in the Warrants shall be taken
as statements of the Company, and the Warrant Agent assumes no responsibility
for the correctness of any of the same except such as describe the Warrant Agent
or action taken or to be taken by it. The Warrant Agent assumes no
responsibility with respect to the distribution of the Warrants except as herein
otherwise provided.
B. The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrants to be complied with by the Company.
C. The Warrant Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys, agents or employees, and the Warrant Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of any
such attorneys, agents or employees or for any loss to the Company resulting
from such neglect or misconduct, provided reasonable care shall have been
exercised in the selection and continued employment thereof.
D. The Warrant Agent may consult at any time with counsel satisfactory
to it (who may be counsel for the Company), and the Warrant Agent shall incur no
liability or responsibility to the Company or to any holder of any Warrant in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in accordance with the opinion or the advice of such counsel.
E. The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant for any action taken in reliance on any
notice, resolution, waiver, consent, order, certificate, or other paper,
document or instrument believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
F. The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent in the performance
of this Agreement, to reimburse the Warrant Agent for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the performance of this Agreement and to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and counsel fees, for anything done or omitted by the Warrant Agent in the
performance of this Agreement except as a result of the Warrant Agent's gross
negligence or bad faith.
G. The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrants shall
furnish the Warrant Agent with reasonable security and indemnity for any costs
and expenses which may be incurred, but this provision shall not affect the
power of the Warrant Agent to take such action as the Warrant Agent may consider
proper, whether with or without any such security or indemnity. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrants or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery of judgment shall be for
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<PAGE> 14
the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
H. The Warrant Agent and any stockholder, director, officer or employee
of the Warrant Agent may buy, sell or deal in any of the Warrants or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to or
otherwise act as fully and freely as though it were not Warrant Agent under this
Agreement. Nothing herein shall preclude the Warrant Agent from acting in any
other capacity for the Company or for any other legal entity.
I. The Warrant Agent shall act hereunder solely as agent and not in a
ministerial capacity, and its duties shall be determined solely by the
provisions hereof. The Warrant Agent shall not be liable for anything which it
may do or refrain from doing in connection with this Agreement except for its
own gross negligence or bad faith.
SECTION 15. CHANGE OF WARRANT AGENT. The Warrant Agent may resign and
be discharged from its duties under this Agreement by giving to the Company
notice in writing, and to the holders of the Warrants notice by publication, of
such resignation, specifying a date when such resignation shall take effect,
which notice shall be published at the expense of the Company at least once a
week for two consecutive weeks in a newspaper of general circulation in the City
of New York before the date so specified. The Warrant Agent may be removed by
the Company by like notice from the Company to the Warrant Agent and the holders
of Warrants at the expense of the Company. If the Warrant Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Warrant Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Warrant Agent or by the registered holder of a Warrant (who shall,
with such notice, submit his Warrant for inspection by the Company), then, at
the expense of the Company, the Warrant Agent or the registered holder of any
Warrant may apply to any court of competent jurisdiction for the appointment of
a successor to the Warrant Agent. Any successor Warrant Agent, whether appointed
by the Company or by such a court, shall be a bank or trust company, in good
standing, incorporated under the laws of any State or of the United States of
America, having at the time of its appointment as Warrant Agent a combined
capital and surplus of at least $100,000,000. After appointment the successor
Warrant Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Warrant Agent without
further act or deed; but the former Warrant Agent shall deliver and transfer to
the successor Warrant Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Failure to file or publish any notice provided for in this Section,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Warrant Agent or the appointment of the successor
Warrant Agent, as the case may be.
SECTION 16. IDENTITY OF TRANSFER AGENT. Forthwith upon the appointment
of any Transfer Agent for the Shares or of any subsequent Transfer Agent for
Shares issuable upon the exercise of the rights of purchase represented by the
Warrants, the Company will file with the Warrant Agent a statement setting forth
the name and address of such Transfer Agent.
SECTION 17. NOTICES. Any notice pursuant to this Agreement to be given
or made by the Warrant Agent or by the registered holder of any Warrant to or on
the Company shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent) as follows:
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<PAGE> 15
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, NY 10036
Att'n: Corporate Secretary
Any notice pursuant to this Agreement to be given or made by the Company or by
the registered holder of any Warrant to or on the Warrant Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) as follows:
Any notice pursuant to this Agreement to be given or made by the Company or the
Warrant Agent to the registered holder of any Warrant shall be sufficiently
given or made (unless otherwise specifically provided for herein) if sent by
first-class mail, postage prepaid, addressed to said registered holder at his
address appearing on the Warrant register.
SECTION 18. SUPPLEMENTS AND AMENDMENTS. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrants in order to cure any ambiguity or to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provision herein, or to make any other provisions in
regard to matters or questions arising hereunder which the Company and the
Warrant Agent may deem necessary or desirable and which will not materially
adversely affect the interest of the registered holders of the Warrants.
SECTION 19. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 20. GOVERNING LAW. This Agreement and each Warrant Certificate
issued hereunder shall be governed by and construed in accordance with the laws
of the State of New York.
SECTION 21. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or entity other than the Company and the
Warrant Agent and the holders of Warrants any legal or equitable right, remedy
or claim under this Agreement, but this Agreement shall be for the sole and
exclusive benefit of the Company and the Warrant Agent and the holders of
Warrants.
SECTION 22. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together constitute but one
and the same instrument.
[IF THE WARRANTS ARE SUBJECT TO ACCELERATION BY THE COMPANY, INSERT -
SECTION 23. ACCELERATION OF WARRANTS BY THE COMPANY.
A. At any time on or after ____________________, the Company
shall have the right to accelerate any or all Warrants at any time by causing
them to expire at the close of business on the day next preceding a specified
date (the "Acceleration Date"), if the Market Price (as hereinafter de-
-13-
<PAGE> 16
fined) of the Common Stock equals or exceeds _________ percent (____%) of the
then effective Warrant Exercise Price, adjusted as if no changes in such Warrant
Exercise Price had been made pursuant to subsection 9B, on any 20 Trading Days
(as hereinafter defined) within a period of 30 consecutive Trading Days ending
no more than five Trading Days before the date on which the Company gives notice
to the Warrant Agent of its election to accelerate the Warrants.
B. "Market Price" for each Trading Day shall be, if the
[Common/Preferred Stock is] [Depositary Shares are] listed or admitted for
trading on the New York Stock Exchange, the last reported sale price, regular
way (or, if no such price is reported, the average of the reported closing bid
and asked prices, regular way) of [Common/Preferred Stock] [Depositary Shares],
in either case as reported on the New York Stock Exchange Composite Tape or, if
the [Common/Preferred Stock is] [Depositary Shares are] not listed or admitted
to trading on the New York Stock Exchange, on the principal national securities
exchange on which [Common/Preferred Stock is] [Depositary Shares are] are listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of NASDAQ or, if not listed
or admitted to trading on any national securities exchange or quoted on the
National Market System of NASDAQ, the average of the closing high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ, or such
other system then in use, or if on any such date the [shares of Common/Preferred
Stock] [Depositary Shares] are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by any New York Stock Exchange
firm selected from time to time by the Company for that purpose. "Trading Day"
shall be each Monday through Friday, other than any day on which securities are
not traded in the system or on the exchange that is the principal market for the
[Common/Preferred Stock] [Depositary Shares], as determined by the Board of
Directors of the Company.
C. In the event of an acceleration of less than all of the
Warrants, the Warrant Agent shall select the Warrants to be accelerated by lot,
pro rata or in such other manner as it deems, in its discretion, to be fair and
appropriate.
D. Notice of an acceleration specifying the Acceleration Date
shall be sent by mailing first class, postage prepaid, to each registered holder
of a Warrant Certificate representing a Warrant accelerated at such holder's
address appearing on the Warrant register not more than 60 days nor less than 30
days before the Acceleration Date. Such notice of an acceleration also shall be
given no more than 20 days, and no less than 10 days, before the mailing of
notice to registered holders of Warrants pursuant to this Section, by
publication at least once in a newspaper of general circulation in the City of
New York.
E. Any Warrant accelerated may be exercised until [_______]
p.m., [City] time, on the business day next preceding the Acceleration Date. The
Warrant Exercise Price shall be payable as provided in Section 5.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By _____________________________
Its ____________________________
Attest:
-14-
<PAGE> 17
____________________________, as Warrant Agent
By __________________________
Its _____________________
Attest:
-15-
<PAGE> 18
Exhibit A
FORM OF WARRANT CERTIFICATE
[Face of Warrant Certificate]
[IF WARRANTS ARE ATTACHED TO Before _______________, this
OTHER SECURITIES AND ARE NOT Warrant Certificate cannot be
IMMEDIATELY DETACHABLE. transferred or exchanged unless
attached to a [Title of Other
Securities].]
[FORM OF LEGEND IF WARRANTS ARE Before _______________,
NOT IMMEDIATELY EXERCISABLE. Warrants evidenced by this
Warrant Certificate cannot be
exercised.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER [______] P.M., [CITY] TIME, ON ____________, 19__
NEW PLAN EXCEL REALTY TRUST, INC.
Warrants to Purchase
Warrant Certificate Representing
[Title of Warrant Securities]
No. __________ ____________
Warrants
This certifies that ____________________________ or registered assigns
is the registered owner of the above indicated number of Warrants, each Warrant
entitling such owner [IF WARRANTS ARE ATTACHED TO OTHER SECURITIES AND ARE NOT
IMMEDIATELY DETACHABLE -, subject to the registered owner qualifying as a
"Holder" of this Warrant Certificate, as hereinafter defined) to purchase, at
any time [after [___] p.m., [City] time, on _______________ and] on or before
[___] p.m., [City] time, on ____________________, ____________ shares of [Title
of Warrant Securities] (the "Warrant Securities"), of New Plan Excel Realty
Trust, Inc. (the "Company") on the following basis: during the period from
_______________, through and including ______________, the exercise price of
each Warrant will be ___________; during the period from ________, through and
including ________, the exercise price of each warrant will be ________ (the
"Warrant Price"). No adjustment shall be made for any dividends on any Warrant
Securities issuable upon exercise of any Warrant. The Holder may exercise the
Warrants evidenced hereby by providing certain information set forth on the back
hereof and by paying in full [in lawful money of the United States of America]
[in cash or by certified check or official bank check or by bank wire transfer,
in each case,] [by bank wire transfer] in immediately available funds, the
Warrant Price for each Warrant exercised to the Warrant Agent (as hereinafter
defined) and by surrendering this Warrant Certificate, with the purchase form on
the back hereof duly executed, at the
A-1
<PAGE> 19
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "Warrant Agent"), [or ________________________], which is, on the
date hereof, at the address specified on the reverse hereof, and upon compliance
with and subject to the conditions set forth herein and in the Warrant Agreement
(as hereinafter defined).
The term "Holder" as used herein shall mean [IF WARRANTS ARE ATTACHED
TO OTHER SECURITIES AND ARE NOT IMMEDIATELY DETACHABLE - before ___________, __
(the "Detachable Date"), the registered owner of the Company's [title of Other
Securities] to which this Warrant Certificate was initially attached, and after
such Detachable Date,] the person in whose name at the time this Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 4 of the Warrant Agreement.
Any whole number of Warrants evidenced by this Warrant Certificate may
be exercised to purchase Warrant Securities in registered form. Upon any
exercise of fewer than all of the Warrants evidenced by this Warrant
Certificate, there shall be issued to the Holder hereof a new Warrant
Certificate evidencing the number of Warrants remaining unexercised.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement dated as of __________ __, ____ (the "Warrant Agreement")
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance hereof.
Copies of the Warrant Agreement are on file at the above-mentioned office of the
Warrant Agent [and at _________________].
[IF WARRANTS ARE ATTACHED TO OTHER SECURITIES AND ARE NOT IMMEDIATELY
DETACHABLE - Before the Detachable Date, this Warrant Certificate may be
exchanged or transferred only together with the [Title of Other Securities] (the
"Other Securities") to which this Warrant Certificate was initially attached,
and only for the purpose of effecting, or in conjunction with, an exchange or
transfer of such Offered Security. Additionally, on or before the Detachable
Date, each transfer of such Other Securities or register of transfer of the
Other Securities shall operate also to transfer or register the transfer of this
Warrant Certificate. After such date, transfer of this] [IF WARRANTS ARE
ATTACHED TO OTHER SECURITIES AND ARE NOT IMMEDIATELY DETACHABLE - Transfer of
this] Warrant Certificate may be registered when this Warrant Certificate is
surrendered at the corporate trust office of the Warrant Agent [or
_________________________] by the registered owner or such owner's assigns, in
person or by an attorney duly authorized in writing, in the manner and subject
to the limitations provided in the Warrant Agreement.
[IF OTHER SECURITIES WITH WARRANTS WHICH ARE NOT IMMEDIATELY DETACHABLE
- - Except as provided in the immediately preceding paragraph, after] [IF OTHER
SECURITIES WITH WARRANTS WHICH ARE IMMEDIATELY DETACHABLE OR WARRANT ALONE -
After] countersignature by the Warrant Agent and before the expiration of this
Warrant Certificate, this Warrant Certificate may be exchanged at the corporate
trust office of the Warrant Agent [or ____________] for Warrant Certificates
representing the same aggregate number of Warrants.
This Warrant Certificate shall not entitle the Holder hereof to any of
the rights of a holder of the Warrant Securities, including, without limitation,
the right to receive payments of dividends or distributions, if any, on the
Warrant Securities or to exercise any voting rights.
This Warrant Certificate shall not be valid or obligatory for any
purpose until countersigned by the Warrant Agent.
A-2
<PAGE> 20
IN WITNESS WHEREOF, the Company has caused this Warrant to be executed
in its name and on its behalf by the facsimile signatures of its duly authorized
officers.
Dated: ______________ ___, ________ NEW PLAN EXCEL REALTY TRUST, INC.
By_______________________________
Its______________________________
ATTEST:
Countersigned:______________________
As Warrant Agent
By_____________________________Authorized Signature
A-3
<PAGE> 21
[Reverse of Warrant Certificate]
The securities represented by this certificate are subject to
restrictions on transfer for the purpose of the Corporation's maintenance of its
status as a "real estate investment trust" under the Internal Revenue Code of
1986, as amended. Except as otherwise provided pursuant to the charter of the
Corporation, no Person may Beneficially Own or Constructively Own shares of any
class or series of the Corporation's Common or Preferred Stock in excess of 9.8%
(or such greater percentage as may be determined by the Board of Directors of
the Corporation) of the value or number of shares outstanding (whichever is more
restrictive) of such class or series of the Corporation's Common or Preferred
Stock. Any Person who attempts or proposes to Beneficially Own or Constructively
Own shares of Equity Stock in excess of the above limitation must notify the
Corporation in writing at least 15 days prior to such proposed or attempted
Transfer. All capitalized terms in this legend have the meanings defined in the
charter of the Corporation, a copy of which, including the restrictions on
transfer, will be sent without charge to each stockholder who so requests. If
the restrictions on transfer are violated, the securities represented hereby may
be automatically transferred to a trust for the benefit of one or more
charitable organizations to be designated by the Corporation.
(Instructions for Exercise of Warrant)
To exercise the Warrants evidenced hereby, the Holder must pay [in
United States dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer in immediately
available funds], the Warrant Price in full for Warrants exercised, to [Warrant
Agent] [address of Warrant Agent], Att'n: __________________, which payment must
specify the name of the Holder and the number of Warrants exercised by such
Holder. In addition, the Holder must complete the information required below and
present this Warrant Certificate in person or by mail (certified or registered
mail is recommended) to the Warrant Agent at the appropriate address set forth
below. This Warrant Certificate, completed and duly executed, must be received
by the Warrant Agent within five business days of the payment.
To Be Executed Upon Exercise of Warrant
The undersigned hereby irrevocably elects to exercise ______ Warrants,
evidenced by this Warrant Certificate, to purchase ______ shares of the [Title
of Warrant Securities] (the "Warrant Securities") of New Plan Excel Realty
Trust, Inc. and represents that he or she has tendered payment for such Warrant
Securities [in Dollars] [in cash or by certified check or official bank check or
by bank wire transfer, in each case] [by bank wire transfer in immediately
available funds] to the order of New Plan Excel Realty Trust, Inc., c/o [insert
name and address of Warrant Agent], in the amount of ________ in accordance with
the terms hereof. The undersigned requests that said principal amount of Warrant
Securities be in fully registered form in the authorized denominations,
registered in such names and delivered all as specified in accordance with the
instructions set forth below.
If the number of Warrants exercised is less than all of the Warrants
evidenced hereby, the undersigned requests that a new Warrant Certificate
representing the remaining Warrants evidenced hereby be issued and delivered to
the undersigned unless otherwise specified in the instructions below.
Dated: ___________________________ Name__________________________________
(Please Print)
_________________________________ Address_______________________________
(Insert Social Security or Other
A-4
<PAGE> 22
Identifying Number of Holder) ______________________________________
Signature Guaranteed
______________________________ Signature_____________________________
[FOR REGISTERED WARRANTS -- Signature must conform in all respects to
name of holder as specified on the face of this Warrant Certificate and
must bear a signature guarantee by a bank, trust company or member
broker of the New York, Midwest or Pacific Stock Exchange]
This Warrant may be exercised at the following addresses:
By hand at ___________________________________________
By hand at ___________________________________________
[Instructions as to form and delivery of Warrant Securities and, if applicable,
Warrant Certificates evidencing unexercised Warrants - complete as appropriate.]
ASSIGNMENT
(Form of assignment to be executed if
Warrant Holder desires to transfer Warrant)
FOR VALUE RECEIVED, _________________________ hereby sells, assigns and
transfers unto
_____________________________________
Print or Type Name
_____________________________________
Street Address
_________________________ _______ __________
City State Zip Code
___________________________________________
Social Security or other Identifying Number
the right represented by the within Warrant to purchase ___________________
Shares of [Common Stock/Preferred Stock] [($.01 par value)] of New Plan Excel
Realty Trust, Inc. to which the within Warrant relates and appoints
________________________________________ attorney to transfer such right on the
books of the Warrant Agent with full power of substitution in the premises.
A-5
<PAGE> 23
Dated: _________________________ ____________________________________________
Signature (Signature must conform in all
respects to name of holder as specified on
the face of the Warrant)
Signature Guaranteed
________________________________
A-6
<PAGE> 1
Exhibit 4.05
[Form of Debt Warrant Agreement]
NEW PLAN EXCEL REALTY TRUST, INC.
AND
[NAME OF DEBT WARRANT AGENT],
Debt Warrant Agent
DEBT WARRANT AGREEMENT
Dated as of _____________, 19__
<PAGE> 2
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE I. ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY OF DEBT WARRANT CERTIFICATES...... 2
SECTION 1.1. ISSUANCE OF DEBT WARRANTS.............................................................. 2
SECTION 1.2. EXECUTION AND DELIVERY OF DEBT WARRANT CERTIFICATES.................................... 2
SECTION 1.3. ISSUANCE OF DEBT WARRANT CERTIFICATES.................................................. 3
SECTION 1.4. TEMPORARY DEBT WARRANT CERTIFICATES.................................................... 3
SECTION 1.5. DEFINITION OF HOLDER................................................................... 4
ARTICLE II. DEBT WARRANT PRICE, DURATION AND EXERCISE OF DEBT WARRANTS............................. 4
SECTION 2.1. DEBT WARRANT PRICE..................................................................... 4
SECTION 2.2. DURATION OF DEBT WARRANTS.............................................................. 5
SECTION 2.3. EXERCISE OF DEBT WARRANTS.............................................................. 5
ARTICLE III. OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF DEBT WARRANT CERTIFICATES............ 6
SECTION 3.1. NO RIGHTS AS A HOLDER OF DEBT WARRANT NOTES CONFERRED BY DEBT WARRANTS OR
DEBT WARRANT CERTIFICATES............................................................ 6
SECTION 3.2. LOST, STOLEN, MUTILATED OR DESTROYED DEBT WARRANT CERTIFICATES......................... 6
SECTION 3.3. HOLDER OF DEBT WARRANT CERTIFICATE MAY ENFORCE RIGHTS.................................. 7
ARTICLE IV. [REGISTRATION], EXCHANGE AND TRANSFER OF DEBT WARRANT CERTIFICATES..................... 7
SECTION 4.1. EXCHANGE AND TRANSFER OF DEBT WARRANT CERTIFICATES..................................... 7
SECTION 4.2. TREATMENT OF HOLDERS OF DEBT WARRANT CERTIFICATES...................................... 8
SECTION 4.3. PERSONS DEEMED OWNERS.................................................................. 9
SECTION 4.4. CANCELLATION OF DEBT WARRANT CERTIFICATES.............................................. 9
</TABLE>
- --------
(1) This Table of Contents shall not, for any purpose, be deemed to be part of
this Warrant Agreement.
i
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE V. CONCERNING THE DEBT WARRANT AGENT....................................................... 10
SECTION 5.1. DEBT WARRANT AGENT...................................................................... 10
SECTION 5.2. CONDITIONS OF DEBT WARRANT AGENT'S OBLIGATIONS.......................................... 10
SECTION 5.3. RESIGNATION AND APPOINTMENT OF SUCCESSOR................................................ 12
SECTION 5.4. COMPLIANCE WITH APPLICABLE LAWS......................................................... 14
ARTICLE VI. MISCELLANEOUS........................................................................... 14
SECTION 6.1. MODIFICATION, SUPPLEMENTATION OR AMENDMENT.............................................. 14
SECTION 6.2. CONSOLIDATIONS AND MERGERS OF THE COMPANY AND SALES, LEASES AND CONVEYANCES PERMITTED
SUBJECT TO CERTAIN CONDITIONS........................................................... 15
SECTION 6.3. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION.............................................. 15
SECTION 6.4. NOTICES AND DEMANDS TO THE COMPANY AND DEBT WARRANT AGENT............................... 15
SECTION 6.5. ADDRESSES............................................................................... 15
SECTION 6.6. NOTICES TO HOLDERS OF DEBT WARRANTS..................................................... 16
SECTION 6.7. APPLICABLE LAW.......................................................................... 16
SECTION 6.8. DELIVERY OF PROSPECTUS.................................................................. 16
SECTION 6.9. OBTAINING OF GOVERNMENTAL APPROVALS..................................................... 16
SECTION 6.10. PERSONS HAVING RIGHTS UNDER DEBT WARRANT AGREEMENT...................................... 17
SECTION 6.11. HEADINGS................................................................................ 17
SECTION 6.12. COUNTERPARTS............................................................................ 17
SECTION 6.13. INSPECTION OF AGREEMENT................................................................. 17
EXHIBIT A [Form of Debt Warrant Certificate]
EXHIBIT B Form of Certificate for Delivery of Bearer Debt Warrant Notes
</TABLE>
ii
<PAGE> 4
DEBT WARRANT AGREEMENT(2)
DEBT WARRANT AGREEMENT dated as of _________________, 199__
between New Plan Excel Realty Trust, Inc., a Maryland corporation (hereinafter
called the "Company," [which term includes any successor corporation under the
Indenture hereinafter referred to]) and __________________, as Debt Warrant
Agent (herein called the "Debt Warrant Agent").
[WHEREAS, the Company has entered into an Indenture dated as
of _______ __, 19___ (the "Indenture"), with [____________________], a
corporation organized under the laws of the [_______________] (the "Trustee,"
which term includes any successor trustee under the Indenture), providing for
the issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (the "Notes"), to be issued in one or more series;
and]
[WHEREAS, the Company proposes to sell [title of Notes being
offered] (the "Offered Notes") with warrant certificates evidencing one or more
warrants (the "Debt Warrants" or, individually a "Debt Warrant") representing
the right to purchase up to an aggregate principal amount of ________________
of [title of Notes purchasable through exercise of Debt Warrants] (the "Debt
Warrant Notes"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Debt Warrant
Certificates"(3); and]
WHEREAS, the Company desires the Debt Warrant Agent to act on
behalf of the Company in connection with the issuance, exchange, exercise and
replacement of the Debt Warrant Certificates, and in this Agreement wishes to
set forth, among other things, the form and provisions of the Debt Warrant
Certificates and the terms and conditions on which they may be issued,
exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
- --------
(2) The provisions of this form will be completed or modified as appropriate to
reflect the terms of the Warrants, any contemporaneously offered Debt Securities
and Debt Warrant Notes and the designation of the Debt Warrant Agent. Monetary
amounts may be in U.S. dollars, in another currency or currencies or in units
based on or relating to currencies (including Euros).
(3) If the Warrants are to be uncertificated, the provisions of this form will
be modified as appropriate to reflect the terms of exercise and transfer of
uncertificated Warrants and other matters relating to the use of the specified
system for uncertificated Warrants.
<PAGE> 5
ARTICLE I.
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND
DELIVERY OF DEBT WARRANT CERTIFICATES.
SECTION 1.1. ISSUANCE OF DEBT WARRANTS. Debt Warrants shall be
initially issued in connection with the issuance of the Offered Notes [but shall
be separately transferable on and after _____________, 19__ (the "Detachable
Date")] (and shall not be separately transferable] and each Debt Warrant
Certificate shall evidence one or more Debt Warrants. Each Debt Warrant
evidenced thereby shall represent the right, subject to the provisions contained
herein and therein, to purchase a Debt Warrant Note in the principal amount of
$____________. Debt Warrant Certificates shall be issued initially in units with
the Offered Notes and each Debt Warrant Certificate included in such a unit
shall evidence ______ Debt Warrants for each $___________ principal amount of
Offered Notes included in such unit.
SECTION 1.2. EXECUTION AND DELIVERY OF DEBT WARRANT
CERTIFICATES. Debt Warrant Certificates, whenever issued, shall be in [bearer]
[or] [registered] form [or both] substantially in the form set forth in Exhibit
A hereto, shall be dated by the Debt Warrant Agent the date of its
countersignature and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
same may approve (execution thereof to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Agreement, 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 Debt
Warrants may be listed, or to conform to usage. The Debt Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board of
Directors, its President, one of its Vice Presidents or its Treasurer under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. Such signatures may be manual or facsimile signatures of
such authorized officers and may be imprinted or otherwise reproduced on the
Debt Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Warrant Certificates. [Typographical and other minor
errors or defects in any such reproduction of the seal or any such signature
shall not affect the validity or enforceability of the Debt Warrant Certificate
that has been duly executed by the Company and countersigned by the Debt Warrant
Agent.]
No Debt Warrant Certificate shall be valid for any purpose,
and no Debt Warrant evidenced thereby shall be exercisable, until such Debt
Warrant Certificate has been countersigned by the manual signature of the Debt
Warrant Agent. Such signature by the Debt Warrant Agent upon any Debt Warrant
Certifi-
2
<PAGE> 6
cate executed by the Company shall be conclusive evidence that the Debt Warrant
Certificate so countersigned has been duly issued hereunder.
In case any officer of the Company who shall have signed any
of the Debt Warrant Certificates shall cease to be such officer before the Debt
Warrant Certificates so signed shall have been countersigned and delivered by
the Debt Warrant Agent, such Debt Warrant Certificates may be countersigned and
delivered notwithstanding that the person who signed such Debt Warrant
Certificates ceased to be such officer of the Company; and any Debt Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Debt Warrant Certificate, shall be the
proper officers of the Company, although at the date of the execution of this
Agreement any such person was not such officer.
SECTION 1.3. ISSUANCE OF DEBT WARRANT CERTIFICATES. Debt
Warrant Certificates evidencing the right to purchase an aggregate principal
amount not exceeding $___________ of Debt Warrant Notes (except as provided in
Sections 2.3(C), 3.2 and 4.1) may be executed by the Company and delivered to
the Debt Warrant Agent upon the execution of this Debt Warrant Agreement or from
time to time thereafter. The Debt Warrant Agent shall, upon receipt of Debt
Warrant Certificates duly executed on behalf of the Company, countersign Debt
Warrant Certificates evidencing Debt Warrants representing the right to purchase
up to $__________ aggregate principal amount of Debt Warrant Notes and shall
deliver such Debt Warrant Certificates to or upon the order of the Company.
Subsequent to such original issuance of the Debt Warrant Certificates, the Debt
Warrant Agent shall countersign a Debt Warrant Certificate only if the Debt
Warrant Certificate is issued in exchange or substitution for one or more
previously countersigned Debt Warrant Certificates [If registered Debt
Warrants-- or in connection with their transfer], as hereinafter provided or as
provided in Sections 2.3(C), 3.2 or 4.1.
SECTION 1.4. TEMPORARY DEBT WARRANT CERTIFICATES. Pending the
preparation of definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall countersign and
deliver, temporary Debt Warrant Certificates which are printed, lithographed,
typewritten, mimeographed or otherwise produced substantially of the tenor of
the definitive Debt Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Debt Warrant Certificates may determine, as
evidenced by their execution of such Debt Warrant Certificates.
If temporary Debt Warrant Certificates are issued, the Company
will cause definitive Debt Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Debt Warrant
Certificates, the temporary Debt Warrant Certificates shall be exchangeable for
definitive Debt Warrant Certificates upon surrender of the temporary Debt
Warrant Certificates at the corpo-
3
<PAGE> 7
rate trust office of the Debt Warrant Agent [or ________________], without
charge to the holder (as defined below). Upon surrender for cancellation of any
one or more temporary Debt Warrant Certificates the Company shall execute and
the Debt Warrant Agent shall countersign and deliver in exchange therefor
definitive Debt Warrant Certificates representing the same aggregate number of
Debt Warrants. Until so exchanged, the temporary Debt Warrant Certificates shall
in all respects be entitled to the same benefits under this Agreement as
definitive Debt Warrant Certificates.
SECTION 1.5. DEFINITION OF HOLDER. [If bearer Debt Warrants --
The term "holder" or "holder of a Debt Warrant Certificate" as used herein shall
mean [If Offered Notes with Debt Warrants which are not immediately detachable
- -- prior to the Detachable Date, the registered owner of the offered Note to
which such Debt Warrant Certificate was initially attached (or the bearer if the
Offered Note is a bearer Note), and after such Detachable Date] the bearer of
such Debt Warrant Certificate.]
[If registered Debt Warrants -- The term "holder" or "holder
of a Debt Warrant Certificate" as used herein shall mean any person in whose
name at the time any Debt Warrant Certificate shall be registered upon the books
to be maintained by the Debt Warrant Agent for that purpose [If Offered Notes
with Debt Warrants which are not immediately detachable -- or, prior to the
Detachable Date, upon the register of the Offered Notes. The Company will, or
will cause the registrar of the Offered Notes to, make available at all times to
the Debt Warrant Agent such information as to holders of the Offered Notes with
Debt Warrants as may be necessary to keep the Debt Warrant Agent's records up to
date].]
ARTICLE II.
DEBT WARRANT PRICE, DURATION AND EXERCISE OF DEBT WARRANTS.
SECTION 2.1. DEBT WARRANT PRICE. During the period from and
including _________________, 19__ to and including ___________, 19__ the
exercise price of each Debt Warrant will be [ % of the principal amount of the
Debt Warrant Notes] [$__________] plus [accrued amortization of the original
issue discount] [accrued interest] from the most recent preceding
___________________. [During the period from _____________________, 19__, to and
including ___________, 19__, the exercise price of each Debt Warrant will be
[__% of the principal amount of the Debt Warrant Notes] [$_________] plus
[accrued amortization of the original issue discount] [accrued interest] from
the most recently preceding ___________]. [In each case, the original issue
discount will be amortized at a _____ % annual rate, computed on an annual basis
using a 360-day year consisting of twelve 30-day months.] Such purchase price of
Debt Warrant Notes is referred to in this Agreement as the
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"Debt Warrant Price." [The original issue discount for each $_______ principal
amount of Debt Warrant Notes is $_______.]
SECTION 2.2. DURATION OF DEBT WARRANTS. Each Debt Warrant may
be exercised in whole at any time, as specified herein, on or after [the date
thereof] [_________, 19__] and at or before 5:00 p.m. New York time on
_______________, 19__, or such later date as may be selected by the Company, in
a written statement to the Debt Warrant Agent and with notice to the holders of
Debt Warrants (such date of expiration is herein referred to as the "Expiration
Date"). Each Debt Warrant not exercised at or before 5:00 p.m. New York time on
the Expiration Date shall become void, and all rights of the holder of the Debt
Warrant Certificate evidencing such Debt Warrant under this Agreement shall
cease.
SECTION 2.3. EXERCISE OF DEBT WARRANTS. (a) During the period
specified in Section 2.2 any whole number of Debt Warrants may be exercised
[,subject to Section 2.3(c),] by delivery to the Debt Warrant Agent of the Debt
Warrant Certificate evidencing such Debt Warrant, with the form of election to
purchase Debt Warrant Notes set forth on the reverse side of the Debt Warrant
Certificate properly completed and duly executed, and by paying in full, [in
lawful money of the United States of America,] [in cash or by certified check or
official bank check or by bank wire transfer, in each case,] [by bank wire
transfer] [in immediately available funds], the Debt Warrant Price for each Debt
Warrant exercised to the Debt Warrant Agent, such delivery and payment to be
made at the corporate trust office of the Debt Warrant Agent [or at __________].
The date on which the duly completed and executed Debt Warrant Certificate and
payment in full of the Debt Warrant Price is received by the Debt Warrant Agent
shall be deemed to be the date on which the Debt Warrant is exercised. The Debt
Warrant Agent shall deposit all funds received by it in payment of the Debt
Warrant Price in an account of the Company maintained with it and shall advise
the Company by telephone at the end of each day on which a [payment] [wire
transfer] for the exercise of Debt Warrants is received of the amount so
deposited to its account. The Debt Warrant Agent shall promptly confirm such
telephone advice to the Company in writing.
(b) The Debt Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company and the Trustee of (i) the number of
Debt Warrants exercised, (ii) the instructions of each holder of the Debt
Warrant Certificates evidencing such Debt Warrants with respect to delivery of
the Debt Warrant Notes to which such holder is entitled upon such exercise,
(iii) delivery of Debt Warrant Certificates evidencing the balance, if any, of
the Debt Warrants remaining after such exercise, and (iv) such other information
as the Company or the Trustee shall reasonably require.
(c) As soon as practicable after the exercise of any Debt
Warrant, the Company shall issue, pursuant to the Indenture, in authorized
denominations to or upon the order of the holder of the Debt Warrant Certificate
evidencing such Debt
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<PAGE> 9
Warrant, the Debt Warrant Notes to which such holder is entitled, [in fully
registered form, registered in such name or names] [or] [in bearer form] as may
be directed by such holder [; PROVIDED, HOWEVER, the Company shall deliver Debt
Warrant Notes in bearer form only outside the United States and only upon
delivery from the person entitled to physical delivery of such Debt Warrant
Notes of an executed certification substantially in the form of Exhibit B
hereto.] If less than all of the Debt Warrants evidenced by such Debt Warrant
Certificate are exercised, the Company shall execute, and an authorized officer
of the Debt Warrant Agent shall manually countersign and deliver, a new Debt
Warrant Certificate evidencing the number of such Debt Warrants remaining
unexercised.
(d) The Company shall not be required to pay any stamp or
other tax or other governmental charge required to be paid in connection with
any transfer involved in the issuance of the Debt Warrant Notes and the Company
shall not be required to issue or deliver any Debt Warrant Note unless or until
the person requesting the issuance thereof shall have paid to the Company the
amount of such tax or governmental charge or shall have established to the
satisfaction of the Company that such tax or other governmental charge has been
paid or that no such tax or other governmental charge is payable.
ARTICLE III.
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANT CERTIFICATES.
SECTION 3.1. NO RIGHTS AS A HOLDER OF DEBT WARRANT NOTES
CONFERRED BY DEBT WARRANTS OR DEBT WARRANT CERTIFICATES. No Debt Warrant
Certificate or Debt Warrant evidenced thereby shall entitle the holder thereof
to any of the rights of a holder of Debt Warrant Notes, including, without
limitation, the right to receive the payment of principal of, premium, if any,
or interest on Debt Warrant Notes or to enforce any of the covenants in the
Indenture.
SECTION 3.2. LOST, STOLEN, MUTILATED OR DESTROYED DEBT WARRANT
CERTIFICATES. Upon receipt by the Debt Warrant Agent of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or
mutilation of any Debt Warrant Certificate and of indemnity reasonably
satisfactory to it and, in the case of mutilation, upon surrender of such Debt
Warrant Certificate to the Debt Warrant Agent for cancellation, then, in the
absence of notice to the Company or the Debt Warrant Agent that such Debt
Warrant Certificate has been acquired by a bona fide purchaser or holder in due
course, the Company may (or, in the case of mutilation, shall) execute, and in
such event an authorized officer of the Debt Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed or mutilated Debt Warrant Certificate, a new Debt Warrant Certificate
of the same tenor and evidencing a
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<PAGE> 10
like number of Debt Warrants. Upon the issuance of any new Debt Warrant
Certificate 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
Debt Warrant Agent) in connection therewith. Every substitute Debt Warrant
Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Debt Warrant Certificate shall represent an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Debt Warrant Certificate shall be at any time enforceable by anyone,
and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Debt Warrant Certificates duly executed
and delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any and all other rights and remedies
notwithstanding any law or statute existing or hereinafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 3.3. HOLDER OF DEBT WARRANT CERTIFICATE MAY ENFORCE
RIGHTS. Notwithstanding any of the provisions of this Agreement, any holder or
beneficial owner of a Debt Warrant Certificate, without the consent of the Debt
Warrant Agent, the Trustee, the holder of any Debt Warrant Notes or the holder
of any other Debt Warrant Certificate, may, in his own behalf, enforce by
appropriate legal action, and may institute and maintain any suit, action or
proceeding against the Company suitable to enforce or otherwise in respect of,
his right to exercise the Debt Warrants and to receive Debt Warrant Notes
evidenced by his Debt Warrant Certificate in the manner provided in his Debt
Warrant Certificate and in this Agreement.
ARTICLE IV.
[REGISTRATION], EXCHANGE AND TRANSFER
OF DEBT WARRANT CERTIFICATES.
SECTION 4.1. EXCHANGE AND TRANSFER OF DEBT WARRANT
CERTIFICATES. [If Offered Notes with Debt Warrants which are immediately
detachable -- Upon] [If Offered Notes with Debt Warrants which are not
immediately detachable -- Prior to the Detachable Date a Debt Warrant
Certificate may be exchanged or transferred only together with the Offered Note
to which the Debt Warrant Certificate was initially attached, and only for the
purpose of effecting or in conjunction with an exchange or transfer of such
Offered Note. Prior to the Detachable Date, each transfer of the Offered Note
[on the register of the Offered Notes] shall operate also to transfer the
related Debt Warrant Certificates. After the Detachable Date upon] surrender at
the corporate trust office of the Debt Warrant Agent [or __________________],
Debt Warrant Certificates evidencing Debt Warrants may be exchanged for Debt
Warrant Certificates in other denominations evidencing such Debt Warrants [If
registered Debt Warrants -- or the transfer may be
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<PAGE> 11
registered in whole or in part]; provided that such other Debt Warrant
Certificates evidence a like number of Debt Warrants as the Debt Warrant
Certificates so surrendered. [If registered and bearer Debt Warrants (subject to
any limitations imposed with respect to such exchanges) -- [After the Detachable
Date, upon] [Upon] surrender at the corporate trust office of the Debt Warrant
Agent [or ________], Debt Warrant Certificates in bearer form may be exchanged
for Debt Warrant Certificates in registered form evidencing a like number of
Debt Warrants.] [If registered Debt Warrants -- The Debt Warrant Agent shall
keep, at its corporate trust office [and at _______], books in which, subject to
such reasonable regulations as it may prescribe, it shall register Debt Warrant
Certificates and exchanges and transfers of outstanding Debt Warrant
Certificates, upon surrender of the Debt Warrant Certificates to the Debt
Warrant Agent at its corporate trust office [or __________] for exchange [or
registration of transfer], properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Debt Warrant Agent. No service
charge shall be made for any exchange [or registration of transfer] of Debt
Warrant Certificates, but the Company may require payment of a sum sufficient to
cover any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange [or registration of transfer]. Whenever any
Debt Warrant Certificates are so surrendered for exchange [or registration of
transfer], an authorized officer of the Debt Warrant Agent shall manually
countersign and deliver to the person or persons entitled thereto a Debt Warrant
Certificate or Debt Warrant Certificates duly authorized and executed by the
Company, as so requested. The Debt Warrant Agent shall not be required to effect
any exchange [or registration of transfer] which will result in the issuance of
a Debt Warrant Certificate evidencing a fraction of a Debt Warrant [or a number
of full Debt Warrants and a fraction of a Debt Warrant]. All Debt Warrant
Certificates issued upon any exchange [or registration of transfer] of Debt
Warrant Certificates shall be the valid obligations of the Company, evidencing
the same obligations, and entitled to the same benefits under this Agreement, as
the Debt Warrant Certificates surrendered for such exchange [or registration of
transfer].
SECTION 4.2. TREATMENT OF HOLDERS OF DEBT WARRANT
CERTIFICATES. [If Offered Notes with bearer Debt Warrants which are not
immediately detachable -- Subject to Section 4.1, each] [If Offered Notes with
bearer Debt Warrants which are immediately detachable -- Each] Debt Warrant
Certificate shall be transferable by delivery and shall be deemed negotiable and
the bearer of each Debt Warrant Certificate may be treated by the Company, the
Debt Warrant Agent and all other persons dealing with such bearer as the
absolute owner thereof for any purpose and as the person entitled to exercise
the rights represented by the Debt Warrants evidenced thereby, any notice to the
contrary notwithstanding.] [If registered Debt Warrant -- Every holder of a Debt
Warrant Certificate, by accepting the same, consents and agrees with the
Company, the Debt Warrant Agent and with every subsequent holder of such Debt
Warrant Certificate that until the transfer of the Debt Warrant Certificate is
registered on the books of the Debt Warrant
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<PAGE> 12
Agent [or the register of the Offered Notes prior to the Detachable Date], the
Company and the Debt Warrant Agent [or the registrar of the Offered Notes prior
to the Detachable Date] may treat such registered holder as the absolute owner
thereof for any purpose and as the person entitled to exercise the rights
represented by the Debt Warrants evidenced thereby, any notice to the contrary
notwithstanding.]
SECTION 4.3. PERSONS DEEMED OWNERS. [If Offered Notes and Debt
Warrants which are not immediately detachable -- Prior to the Detachable Date,
the Company, the Debt Warrant Agent and any agent of the Company or the Debt
Warrant Agent may treat the registered owner of any Offered Note as the owner of
the Debt Warrant Certificates initially attached thereto for any purpose and as
the person entitled to exercise the rights represented by the Debt Warrants
evidenced by such Debt Warrant Certificates, any notice to the contrary
notwithstanding. After the Detachable Date] [If registered Debt Warrants -- and
prior to due presentment of a Debt Warrant Certificate for registration of
transfer, the] [If Offered Notes and Debt Warrants which are immediately
detachable or Debt Warrants alone -- The] Company, the Debt Warrant Agent and
any agent of the Company or the Debt Warrant Agent may treat the holder as the
owner thereof for any purpose and as the person entitled to exercise the rights
represented by the Debt Warrants evidenced thereby, any notice to the contrary
notwithstanding.
SECTION 4.4. CANCELLATION OF DEBT WARRANT CERTIFICATES. Any
Debt Warrant Certificate surrendered for exchange [, registration of transfer]
or exercise of the Debt Warrants evidenced thereby shall, if surrendered to the
Company, be delivered to the Debt Warrant Agent and all Debt Warrant
Certificates surrendered or so delivered to the Debt Warrant Agent shall be
promptly canceled by the Debt Warrant Agent and shall not be reissued and,
except as expressly permitted by this Agreement, no Debt Warrant Certificate
shall be issued hereunder in exchange or in lieu thereof. The Debt Warrant Agent
shall deliver to the Company from time to time or otherwise dispose of canceled
Debt Warrant Certificates in a manner satisfactory to the Company. [If Debt
Warrant Certificates are issued in bearer form -- Debt Warrant Certificates
delivered to the Debt Warrant Agent in exchange for Debt Warrant Certificates of
other denominations may be retained by the Debt Warrant Agent for reissue as
authorized hereunder.] The Company may at any time deliver to the Debt Warrant
Agent for cancellation any Debt Warrant Certificates previously issued hereunder
which the Company may have acquired in any manner whatsoever, and all Debt
Warrant Certificates so delivered shall be promptly canceled by the Debt Warrant
Agent. All canceled Debt Warrant Certificates held by the Debt Warrant Agent
shall be disposed of as instructed by the Company, subject to applicable law.
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ARTICLE V.
CONCERNING THE DEBT WARRANT AGENT.
SECTION 5.1. DEBT WARRANT AGENT. The Company hereby appoints
________________________ as Debt Warrant Agent of the Company in respect of the
Debt Warrants and the Debt Warrant Certificates upon the terms and subject to
the conditions herein set forth; and hereby accepts such appointment. The Debt
Warrant Agent shall have the powers and authority granted to and conferred upon
it in the Debt Warrant Certificates and hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to
or confer upon it. All of the terms and provisions with respect to such powers
and authority contained in the Debt Warrant Certificates are subject to and
governed by the terms and provisions hereof.
SECTION 5.2. CONDITIONS OF DEBT WARRANT AGENT'S OBLIGATIONS.
The Debt Warrant Agent accepts its obligations herein set forth upon the terms
and conditions hereof, including the following, to all of which the Company
agrees and to all of which the rights hereunder of the holders from time to time
of the Debt Warrant Certificates shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees
promptly to pay the Debt Warrant Agent the compensation to be
agreed upon with the Company for all services rendered by the
Debt Warrant Agent and to reimburse the Debt Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees)
incurred by the Debt Warrant Agent without negligence, bad
faith or breach of this Agreement on its part in connection
with the services rendered hereunder by the Debt Warrant
Agent. The Company also agrees to indemnify the Debt Warrant
Agent for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or
breach of this Agreement on the part of the Debt Warrant
Agent, arising out of or in connection with its acting as Debt
Warrant Agent hereunder, as well as the costs and expenses of
defending against any claim of such liability. The obligations
of the Company under this subsection (a) shall survive the
exercise of the Debt Warrant Certificates and the resignation
or removal of the Debt Warrant Agent.
(b) AGENT FOR THE COMPANY. In acting under this Debt Warrant
Agreement and in connection with the issuance and exercise of
the Debt Warrant Certificates, the Debt Warrant Agent is
acting solely as an agent of the Company and does not assume
any obligation or relationship of agency or trust for or with
any owner of a beneficial interest in any Debt Warrant or with
the holder thereof.
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<PAGE> 14
(c) COUNSEL. The Debt Warrant Agent may consult with counsel
satisfactory to it, and the advice of such 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 accordance with the advice of such counsel.
(d) DOCUMENTS. The Debt Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken
or thing suffered by it in reliance upon any Debt Warrant
Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) CERTAIN TRANSACTIONS. The Debt Warrant Agent, and its
officers, directors and employees, may become the owner of, or
acquire any interest in, Debt Warrants, with the same rights
that it or they would have if it were not the Debt Warrant
Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial
or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of
holders of Debt Warrant Notes or other obligations of the
Company as freely as if it were not the Debt Warrant Agent
hereunder. Nothing in this Debt Warrant Agreement shall be
deemed to prevent the Debt Warrant Agent from acting as
Trustee under the Indenture.
(f) NO LIABILITY FOR INVALIDITY. The Debt Warrant Agent shall
have no liability with respect to any invalidity of this
Agreement or any of the Debt Warrant Certificates.
(g) NO LIABILITY FOR INTEREST. The Debt Warrant Agent shall
have no liability for interest on any monies at any time
received by it pursuant to any of the provisions of this
Agreement or of the Debt Warrant.
(h) NO RESPONSIBILITY FOR REPRESENTATIONS. The Debt Warrant
Agent shall not be responsible for any of the recitals or
representations herein or in the Debt Warrant Certificates
(except as to the Debt Warrant Agent's countersignature
thereon), all of which are made solely by the Company.
(i) NO IMPLIED OBLIGATIONS. The Debt Warrant Agent shall be
obligated to perform only such duties as are herein and in the
Debt Warrant Certificates specifically set forth and no
implied duties or obligations shall be read into this
Agreement or the Debt Warrant Cer-
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tificates against the Debt Warrant Agent. The Debt Warrant
Agent shall not be under any obligation to take any action
hereunder which may tend to involve it in any expense or
liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Debt
Warrant Agent shall not be accountable or under any duty or
responsibility for the use by the Company of any of the Debt
Warrant Certificates countersigned by the Debt Warrant Agent
and delivered by it to the Company pursuant to this Agreement
or for the application by the Company of the proceeds of the
Debt Warrant Certificates. The Debt Warrant Agent shall have
no duty or responsibility in case of any default by the
Company in the performance of its covenants, agreements or
other obligations contained herein or in the Debt Warrant
Certificates or in the case of the receipt of any written
demand from a holder of a Debt Warrant Certificate with
respect to such default, including, without limiting the
generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 6.4 hereof, to
make any demand upon the Company.
SECTION 5.3. RESIGNATION AND APPOINTMENT OF SUCCESSOR. (a) The
Company agrees, for the benefit of the holders from time to time of the Debt
Warrant Certificates, that there shall at all times be a Debt Warrant Agent
hereunder until all the Debt Warrant Certificates are no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such
intention on its part, specifying the date on which its
desired resignation shall become effective; provided that such
date shall not be less than three months after the date on
which such notice is given unless the Company otherwise
agrees. The Debt Warrant Agent hereunder may be removed at any
time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and
the date when it shall become effective. Such resignation or
removal shall take effect upon the appointment by the Company,
as hereinafter provided, of a successor Debt Warrant Agent
(which shall be a bank or trust company authorized under the
laws of the jurisdiction of its organization to exercise
corporate trust powers) and the acceptance of such appointment
by such successor Debt Warrant Agent. The obligation of the
Company under Section 5.2(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of
the Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall resign,
or shall be removed, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or shall file a
petition seeking relief under the
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Federal Bankruptcy Code, as now constituted or hereafter
amended, or under any other applicable Federal or State
bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a
receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or
meet its debts as they mature, or if a receiver or custodian
of it or of all or any substantial part of its property shall
be appointed, or if an order of any court shall be entered for
relief against it under the provisions of the Federal
Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable Federal or State bankruptcy or
similar law, or if any public officer shall have taken charge
or control of the Debt Warrant Agent or of its property or
affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Debt Warrant Agent, qualified as
aforesaid, shall be appointed by the Company by an instrument
in writing, filed with the successor Debt Warrant Agent. Upon
the appointment as aforesaid of a successor Debt Warrant Agent
and acceptance by the successor Debt Warrant Agent of such
appointment, the Debt Warrant Agent shall cease to be Debt
Warrant Agent hereunder.
(d) Any successor Debt Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the
Company an instrument accepting such appointment hereunder,
and thereupon such successor Debt Warrant Agent, without any
further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if
originally named as Debt Warrant Agent hereunder, and such
predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Debt Warrant Agent
shall be entitled to receive, all monies, securities and other
property on deposit with or held by such predecessor, as Debt
Warrant Agent hereunder.
(e) Any corporation into which the Debt Warrant Agent
hereunder may be merged or converted or any corporation with
which the Debt Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Debt Warrant Agent shall be a
party, or any corporation to which the Debt Warrant Agent
shall sell or otherwise transfer all or substantially all the
assets and business of the Debt Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor
Debt Warrant Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any
of the parties hereto.
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(f) The Company may designate agencies for the surrender for
exercise of Debt Warrant Certificates at such place or places
as the Company may determine, and the Company shall keep the
Debt Warrant Agent advised of the names and locations of such
agencies, if any are so designated. The Debt Warrant Agent
shall arrange directly with such agencies for the delivery of
Debt Warrant Notes upon exercise of Debt Warrant Certificates
surrendered for exercise at such agencies. The Debt Warrant
Agent shall be in no way responsible or accountable for the
action or failure to act of any agencies designated pursuant
to this Section 5.3(f).
SECTION 5.4. COMPLIANCE WITH APPLICABLE LAWS. The Debt Warrant
Agent agrees to comply with all applicable federal and state laws in respect of
the services rendered by it under this Debt Warrant Agreement and in connection
with the Debt Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Debt Warrant Agent expressly assumes all liability for failure
to comply with such laws, including (but not limited to) any liability for
failure to comply with any applicable provisions of United States federal income
tax laws regarding information reporting and backup withholding.
ARTICLE VI.
MISCELLANEOUS.
SECTION 6.1. MODIFICATION, SUPPLEMENTATION OR AMENDMENT. (a)
This Agreement and the Debt Warrant Certificate may be amended by the Company
and the Debt Warrant Agent, without the consent of the beneficial owners or the
registered holders of any Debt Warrant Certificate, for the purpose of curing
any ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein, or in any other manner which the
Company or the Debt Warrant Agent may deem necessary or desirable and which will
not adversely affect the interests of the beneficial owners of the outstanding
unexercised Debt Warrants in any material respect.
(b) The Company and the Debt Warrant Agent may also modify or
amend this Agreement and the Debt Warrant Certificate, with
the consent of the beneficial owners of not less than a
majority in number of the then outstanding unexercised Debt
Warrants affected by such modification or amendment, for any
purpose; PROVIDED, HOWEVER, that no such modification or
amendment that increases the exercise price or otherwise
reduces the amount of Debt Warrant Notes receivable upon
exercise, cancellation or expiration, or that shortens the
period of time during which the Debt Warrants may be
exercised, or otherwise materially and adversely affects the
exercise rights of the bene-
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<PAGE> 18
ficial owners or reduces the number of outstanding Debt
Warrants the consent of the beneficial owners of which is
required for modification, supplementation or amendment of
this Agreement or the Debt Warrant Certificate, may be made
without the consent of each holder affected thereby.
SECTION 6.2. CONSOLIDATIONS AND MERGERS OF THE COMPANY AND
SALES, LEASES AND CONVEYANCES PERMITTED SUBJECT TO CERTAIN CONDITIONS. To the
extent permitted in the Indenture, the Company may consolidate with, or sell or
convey all or substantially all of its assets to, or merge with or into any
other corporation.
SECTION 6.3. RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. In
case of any such consolidation, merger, sale or conveyance and upon any
assumption by the successor corporation of the obligations of the Company under
the Indenture, such successor corporation shall succeed to and be substituted
for the Company, with the same effect as if it had been named herein, and the
predecessor corporation, shall be relieved of any further obligation under this
Agreement and the Debt Warrants. 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 Debt Warrant Notes issuable pursuant to the terms
hereof. All the Debt Warrant Notes so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Debt Warrant Notes theretofore
or thereafter issued in accordance with the terms of this Agreement and the
Indenture.
In case of any such consolidation, merger, sale or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Debt Warrant Notes thereafter to be issued as may be appropriate.
SECTION 6.4. NOTICES AND DEMANDS TO THE COMPANY AND DEBT
WARRANT AGENT. If the Debt Warrant Agent shall receive any notice or demand
addressed to the Company by the holder of a Debt Warrant Certificate pursuant to
the provisions of the Debt Warrant Certificates, the Debt Warrant Agent shall
promptly forward such notice or demand to the Company.
SECTION 6.5. ADDRESSES. Any communication from the Company to
the Debt Warrant Agent with respect to this Agreement shall be addressed to
________________, Attention: ________________ and any communication from the
Debt Warrant Agent to the Company with respect to this Agreement shall be
addressed to New Plan Excel Realty Trust, Inc., 1120 Avenue of the Americas, New
York, NY 10036, Attention: Corporate Secretary (or such other address as shall
be specified in writing by the Debt Warrant Agent or by the Company).
SECTION 6.6. NOTICES TO HOLDERS OF DEBT WARRANTS. Any notice
to holders of Debt Warrants which by any provisions of this Debt War-
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<PAGE> 19
rant Agreement is required or permitted to be given shall be given [If
registered Debt Warrants -- by first class mail postage prepaid at such holder's
address as appears on the books of the Debt Warrant Agent [or on the register of
the Offered Notes prior to the Detachable Date]] [If bearer Debt Warrants -- by
publication in an Authorized Newspaper in New York City and London [, and so
long as the Debt Warrants are listed on the Luxembourg Stock Exchange and the
Luxembourg Stock Exchange so requires, in Luxembourg]. As used herein, the term
"Authorized Newspaper" means a newspaper customarily published on each business
day in morning editions, whether or not it shall be published in Saturday,
Sunday or holiday editions, such as THE WALL STREET JOURNAL (Eastern edition) in
New York City, the FINANCIAL TIMES (London edition) in London and the
LUXEMBURGER WORT in Luxembourg. If by reason of the temporary or permanent
suspension of publication of any newspaper or by reason of any other cause, it
shall be impossible to make publication of such notices in an Authorized
Newspaper as herein required, then such publication or other notice in lieu
thereof as shall be made by the Debt Warrant Agent shall constitute sufficient
publication of such notice, if such publication or other notice shall, so far as
may be possible, approximate the terms and conditions of the publication in lieu
of which it is given. The Debt Warrant Agent shall promptly furnish to the
Company a copy of each notice so published].
SECTION 6.7. APPLICABLE LAW. The validity, interpretation and
performance of this Agreement and each Debt Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed therein.
SECTION 6.8. DELIVERY OF PROSPECTUS. The Company will furnish
to the Debt Warrant Agent sufficient copies of a prospectus with an accompanying
prospectus supplement relating to the Debt Warrant Notes, and the Debt Warrant
Agent agrees that upon the exercise of any Debt Warrant, the Debt Warrant Agent
will deliver to the holder of the Debt Warrant Certificate evidencing such Debt
Warrant, prior to or concurrently with the delivery of the Debt Warrant Notes
issued upon such exercise, a copy of such prospectus and prospectus supplement.
SECTION 6.9. OBTAINING OF GOVERNMENTAL APPROVALS. The Company
will from time to time take all action which may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under United States Federal and
State laws (including without limitation a registration statement in respect of
the Debt Warrants and Debt Warrant Note under the Securities Act of 1933), which
may be or become requisite in connection with the issuance, sale, transfer, and
delivery of the Debt Warrant Certificates, the exercise of the Debt Warrants,
the issuance, sale, transfer and delivery of the Debt Warrant Notes issued upon
exercise of
16
<PAGE> 20
the Debt Warrants or upon the expiration of the period during which the Debt
Warrants are exercisable.
SECTION 6.10. PERSONS HAVING RIGHTS UNDER DEBT WARRANT
AGREEMENT. Nothing in this Agreement shall give to any person other than the
Company, the Debt Warrant Agent (and, subject to this Agreement, their
successors and assigns) and the holders of the Debt Warrant Certificates any
right, remedy or claim under or by reason of this Agreement; and all covenants,
conditions, stipulations, promises and agreements in this Agreement contained
shall be for the sole and exclusive benefit of the Company and the Debt Warrant
Agent and their successors and of the holders of the Debt Warrant Certificates.
SECTION 6.11. HEADINGS. The descriptive headings of the
several Articles and Sections of this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 6.12. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which as so executed shall be deemed to be
an original, but such counterparts shall together constitute but one and the
same instrument.
SECTION 6.13. INSPECTION OF AGREEMENT. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Debt Warrant Agent for inspection by the holder of any Debt
Warrant Certificate. The Debt Warrant Agent may require such holder to submit
his Debt Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be signed by one of their respective authorized officers as of the
day and year first above written.
NEW PLAN EXCEL REALTY TRUST, INC.
By:____________________________
Title:
[NAME OF DEBT WARRANT AGENT], as Debt
Warrant Agent
By:____________________________
Title
17
<PAGE> 21
EXHIBIT A
[FORM OF DEBT WARRANT CERTIFICATE]
[Face of Debt Warrant Certificate]
[Form of Legend if Notes with Debt Warrants which are not
immediately detachable: Prior to _____________, 19__, this Debt Warrant
Certificate cannot be transferred or exchanged unless attached to a [Title of
Offered Notes].]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE DEBT WARRANT
AGENT AS PROVIDED HEREIN
NEW PLAN EXCEL REALTY TRUST, INC.
DEBT WARRANTS TO PURCHASE
[Title of Debt Warrant Notes]
VOID AFTER 5:00 P.M. NEW YORK TIME ON ___________, 19__
No.
This certifies that [the bearer is the]
[________________________ or registered assigns is the registered] owner of the
above indicated number of Debt Warrants, each Debt Warrant entitling such
[bearer] [registered owner] to purchase, at any time [after 5:00 p.m. New York
time on _______________, 19__ and] on or before 5:00 p.m. New York time on
____________, 19__ (or such later date as may be selected by the Company with
notice to the holder thereof as provided in the Debt Warrant Agreement (as
hereinafter defined)), $____________ principal amount of [Title of Debt Warrant
Notes] (the "Debt Warrant Notes"), of New Plan Excel Realty Trust, Inc., a
Maryland corporation (New Plan Excel Realty Trust, Inc. and any successor
corporation under the Indenture hereinafter defined being hereinafter referred
to as the "Company"), to be issued under the Indenture (as hereinafter defined)
on the following basis: during the period from and including ____________, 19__,
to and including ______________, 19__, the exercise price of each Debt Warrant
will be [___% of the principal amount of the Debt Warrant Notes] [$________]
plus [accrued amortization of the original issue discount] [accrued interest]
from the most recently preceding ________________; during the period from
____________, 19__, to and including ___________, 19__, the exercise price of
each Debt Warrant will be [__% of the principal amount of the Debt Warrant
Notes] [$______] plus [accrued amortization of the original issue discount]
[accrued interest] from the most recently preceding ________; [in each case, the
original issue discount will be amortized at a _____% annual rate, computed on
an annual basis, using a 360-day
<PAGE> 22
year consisting of twelve 30-day months] (the "Debt Warrant Price"). [The
original issue discount for each $1,000 principal amount of Debt Warrant Notes
is $______ .] The holder may exercise the Debt Warrants evidenced hereby by
delivery to the Debt Warrant Agent (as hereinafter defined) of this Debt Warrant
Certificate, with the form of election to purchase on the reverse hereof
properly completed and duly executed and by paying in full, [in lawful money of
the United States of America,] [in cash or by certified check or official bank
check or by bank wire transfer, in each case,] [by bank wire transfer] [in
immediately available funds,] the Debt Warrant Price for each Debt Warrant
exercised to the Debt Warrant Agent, such delivery and payment to be made at the
corporate trust office of [name of Debt Warrant Agent], or its successor as
warrant agent (the "Debt Warrant Agent"), [or __________ ] currently at the
address specified on the reverse hereof, and upon compliance with and subject to
the conditions set forth herein and in the Debt Warrant Agreement (as
hereinafter defined). This Debt Warrant Certificate may be exercised only for
the purchase of Debt Warrant Notes in the principal amount of [$1,000] or any
integral multiple thereof.
[If bearer Debt Warrants -- The term "holder" as used herein
shall mean [If Offered Notes with Debt Warrants which are not immediately
detachable -- prior to the Detachable Date, the registered owner of the Offered
Note to which such Debt Warrant Certificate was initially attached (or the
bearer if the Offered Note is a bearer Note), and after such Detachable Date]
the bearer of such Debt Warrant Certificate.]
[If registered Debt Warrants -- The term "holder" as used
herein shall mean any person in whose name at the time any Debt Warrant
Certificate shall be registered upon the books to be maintained by the Debt
Warrant Agent for that purpose [If Offered Notes with Debt Warrants which are
not immediately detachable -- or, prior to the Detachable Date, upon the
register of the Offered Notes. The Company will, or will cause the registrar of
the Offered Notes to, make available at all times to the Debt Warrant Agent such
information as to holders of the Offered Notes with Debt Warrants as may be
necessary to keep the Debt Warrant Agent's records up to date].]
Any whole number of Debt Warrants evidenced by this Debt
Warrant Certificate may be exercised to purchase Debt Warrant Notes [in
registered form in denominations of $_________ and any integral multiples
thereof] [in bearer form in the denomination of $______] [or both]. Upon any
exercise of less than all of the Debt Warrants evidenced by this Debt Warrant
Certificate, there shall be issued to the holder hereof a new Debt Warrant
Certificate evidencing the number of Debt Warrants remaining unexercised.
This Debt Warrant Certificate is issued under and in
accordance with the Debt Warrant Agreement dated as of __________, 19__ (the
"Debt Warrant Agreement") between the Company and the Debt Warrant Agent and is
subject to
2
<PAGE> 23
the terms and provisions contained in the Debt Warrant Agreement, to all of
which terms and provisions the holder of this Debt Warrant Certificate consents
by acceptance hereof. Copies of the Debt Warrant Agreement are on file at the
above-mentioned office of the Debt Warrant Agent [and at _______ ].
The Debt Warrant Notes to be issued and delivered upon the
exercise of the Debt Warrants evidenced by this Debt Warrant Certificate will be
issued under and in accordance with an Indenture dated as of [________ __],
19[__], as amended (the "Indenture"), between the Company and
[______________________], as Trustee ([______________________] and any successor
to such Trustee being hereinafter referred to as the "Trustee"), and will be
subject to the terms and provisions contained in the Indenture. Copies of the
Indenture and the form of the Debt Warrant Notes are on file at the corporate
trust office of the Trustee [and at __________].
[If Offered Notes with bearer Debt Warrants which are not
immediately detachable -- Prior to [________ __], 19[__], this Debt Warrant
Certificate may be exchanged or transferred only together with the [Title of
Offered Notes] (the "Offered Notes") to which this Debt Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Notes. After such date, this] [If
Offered Notes with bearer Debt Warrants which are immediately detachable --
This] Debt Warrant Certificate, and all rights hereunder, may be transferred by
delivery and the Company and the Debt Warrant Agent may treat the bearer hereof
as the owner for all purposes.]
[If Offered Notes with registered Debt Warrants which are not
immediately detachable -- Prior to __________________, 19__, this Debt Warrant
Certificate may be exchanged or transferred only together with the [Title of
Offered Notes] (the "Offered Notes") to which this Debt Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Notes. After such date, this] [If
Offered Notes with registered Debt Warrants which are immediately detachable --
Transfer of this] Debt Warrant Certificate may be registered when this Debt
Warrant Certificate is surrendered at the corporate trust office of the Debt
Warrant Agent [or ______________ by the registered owner or his assigns, in
person or by an attorney duly authorized in writing, in the manner and subject
to the limitations provided in the Debt Warrant Agreement.]
[If Offered Notes with Debt Warrants which are not immediately
detachable -- Except as provided in the immediately preceding paragraph, after]
[If Offered Notes with bearer Debt Warrants which are immediately detachable --
After] counter-signature by the Debt Warrant Agent and prior to the expiration
of this Debt Warrant Certificate, this Debt Warrant Certificate may be exchanged
at the corporate trust office of the Debt Warrant Agent for Debt Warrant
Certificates, representing the same aggregate number of Debt Warrants, [in
registered form] [in bearer form] [in either registered or bearer form].
3
<PAGE> 24
This Debt Warrant Certificate shall not entitle the holder
hereof to any of the rights of a holder of the Debt Warrant Notes, including,
without limitation, the right to receive payments of principal of, or premium,
if any, or interest, if any, on the Debt Warrant Notes or to enforce any of the
covenants of the Indenture.
This Debt Warrant Certificate shall not be valid or obligatory
for any purpose until countersigned by the Debt Warrant Agent.
Dated as of ___________, 19__.
NEW PLAN EXCEL REALTY TRUST, INC.
By:______________________________
Title:
[Name of Debt Warrant Agent]
By:__________________________
Title
4
<PAGE> 25
[REVERSE OF DEBT WARRANT CERTIFICATE]
THE DEBT WARRANTS EVIDENCED HEREBY AND THE DEBT WARRANT NOTES
TO BE ISSUED UPON THE EXERCISE OF THE DEBT WARRANTS EVIDENCED HEREBY ARE SUBJECT
TO RESTRICTIONS ON TRANSFER FOR THE PURPOSE OF THE CORPORATION'S MAINTENANCE OF
ITS STATUS AS A "REAL ESTATE INVESTMENT TRUST" UNDER THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED. EXCEPT AS OTHERWISE PROVIDED PURSUANT TO THE CHARTER OF THE
CORPORATION, NO PERSON MAY BENEFICIALLY OWN OR CONSTRUCTIVELY OWN SHARES OF ANY
CLASS OR SERIES OF THE CORPORATION'S COMMON OR PREFERRED STOCK IN EXCESS OF 9.8%
(OR SUCH GREATER PERCENTAGE AS MAY BE DETERMINED BY THE BOARD OF DIRECTORS OF
THE CORPORATION) OF THE VALUE OR NUMBER OF SHARES OUTSTANDING (WHICHEVER IS MORE
RESTRICTIVE) OF SUCH CLASS OR SERIES OF THE CORPORATION'S COMMON OR PREFERRED
STOCK. ANY PERSON WHO ATTEMPTS OR PROPOSES TO BENEFICIALLY OWN OR CONSTRUCTIVELY
OWN SHARES OF EQUITY STOCK IN EXCESS OF THE ABOVE LIMITATION MUST NOTIFY THE
CORPORATION IN WRITING AT LEAST 15 DAYS PRIOR TO SUCH PROPOSED OR ATTEMPTED
TRANSFER. ALL CAPITALIZED TERMS IN THIS LEGEND HAVE THE MEANINGS DEFINED IN THE
CHARTER OF THE CORPORATION, A COPY OF WHICH, INCLUDING THE RESTRICTIONS ON
TRANSFER, WILL BE SENT WITHOUT CHARGE TO EACH STOCKHOLDER WHO SO REQUESTS. IF
THE RESTRICTIONS ON TRANSFER ARE VIOLATED, THE SECURITIES REPRESENTED HEREBY MAY
BE AUTOMATICALLY TRANSFERRED TO A TRUST FOR THE BENEFIT OF ONE OR MORE
CHARITABLE ORGANIZATIONS TO BE DESIGNATED BY THE CORPORATION.
INSTRUCTIONS FOR EXERCISE OF DEBT WARRANT
To exercise the Debt Warrants evidenced hereby, the holder
must pay [in cash or by certified check or official bank check or by bank wire
transfer] [by bank wire transfer] [in immediately available funds] the Debt
Warrant Price in full for Debt Warrants exercised to [insert name of Debt
Warrant Agent] Corporate Trust Department, [insert address of Debt Warrant
Agent], Attn. _________________ [or __________ ] which [payment] [wire transfer]
must specify the name of the holder and the number of Debt Warrants exercised by
such holder. In addition, the holder must complete the information required
below and present this Debt Warrant Certificate in person or by mail (registered
mail is recommended) to the Debt Warrant Agent at the addresses set forth below.
This Debt Warrant Certificate, completed and duly executed, must be received by
the Debt Warrant Agent together with such [payment] [wire transfer]. [If the
undersigned is requesting delivery of Debt Warrant Notes in bearer form, the
person entitled to physical delivery of such Debt Warrant Notes will be required
to deliver a certificate (copies of which may be obtained from the Debt Warrant
Agent [or ____________]) certifying that such Debt Warrant Notes are not being
acquired by or on behalf of a U.S. person or for resale to a U.S. person unless
such U.S. person is a qualified financial institution as defined under United
States tax laws and regulations.]
5
<PAGE> 26
TO BE EXECUTED UPON EXERCISE OF DEBT WARRANT
The undersigned hereby irrevocably elects to exercise Debt
Warrants, evidenced by this Debt Warrant Certificate, to purchase
$_______________ principal amount of the [Title of Debt Warrant Notes] (the
"Debt Warrant Notes") of New Plan Excel Realty Trust, Inc. and represents that
he or she has tendered payment for such Debt Warrant Notes [in cash or by
certified check or official bank check or by bank wire transfer, in each case,]
[by bank wire transfer] [in immediately available funds] to the order of New
Plan Excel Realty Trust, Inc. c/o [insert name and address of Debt Warrant
Agent], in the amount of $___________ in accordance with the terms hereof. The
undersigned requests that said principal amount of Debt Warrant Notes be in
[bearer form in the authorized denominations] [fully registered form in the
authorized denominations, registered in such names and delivered] all as
specified in accordance with the instructions set forth below.
6
<PAGE> 27
If the number of Debt Warrants exercised is less than all of
the Debt Warrants evidenced hereby, the undersigned requests that a new Debt
Warrant Certificate representing the remaining Debt Warrants evidenced hereby be
issued and delivered to the undersigned unless otherwise specified in the
instructions below.
Dated: ___________________ Name __________________________
(Please Print)
_________________________ Address _______________________
(Insert Social Security or
Other Identifying Number
of Holder)
Signature _____________________
The Debt Warrants evidenced hereby may be exercised at the following addresses:
By hand at________________________________________
By mail at________________________________________
[Instructions as to form and delivery of Debt Warrant Notes and, if applicable,
Debt Warrant Certificates evidencing unexercised Debt Warrants -- complete as
appropriate.]
[If Registered Debt Warrant]
Assignment
(Form of Assignment To Be Executed If Holder Desires To
Transfer Debt Warrants Evidenced Hereby)
FOR VALUE RECEIVED ____________________________ hereby sells, assigns and
transfers unto
Please insert social security or
other identifying number
(Please print name and
address including zip code)
7
<PAGE> 28
of the Debt Warrants represented by the within Debt Warrant Certificate and does
hereby irrevocably constitute and appoint __________________ Attorney, to
transfer said Debt Warrant Certificate on the books of the Debt Warrant Agent
with full power of substitution in the premises.
Dated:
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Debt Warrant Certificate and must bear
a signature guarantee by a bank, trust
company or member broker of the New York,
Midwest or Pacific Stock Exchange.)
Signature Guaranteed:
8
<PAGE> 29
EXHIBIT B
FORM OF CERTIFICATE FOR DELIVERY OF BEARER
DEBT WARRANT NOTES
NEW PLAN EXCEL REALTY TRUST, INC.
[Title of Debt Warrant Notes]
To: NEW PLAN EXCEL REALTY TRUST, INC.
c/o [________________],
as Trustee
This certificate is submitted in connection with the
undersigned's request that you deliver to us $__________________ principal
amount of [Title of Debt Warrant Notes] (the "Debt Warrant Notes") in bearer
form upon exercise of Debt Warrants.
The undersigned hereby certifies that as of the date hereof
(the date of delivery to the undersigned of the Debt Warrant Notes), the Debt
Warrant Notes which are to be delivered to the undersigned in bearer form are
not being acquired, directly or indirectly, by or on behalf of a U.S. person, or
for offer to resell or for resale to a U.S. person or any person inside the
United States or, if any beneficial owner of the Debt Warrant Notes is a U.S.
person, such U.S. person is a financial institution (as defined below) or
acquiring through a financial institution. If the undersigned is a clearing
organization, the undersigned represents that this certificate is based on
statements provided to it by its member organizations. If the undersigned is a
dealer, the undersigned agrees to obtain a similar certificate from each person
entitled to delivery of any of the Debt Warrant Notes in bearer form purchased
from it. Notwithstanding the foregoing, if the undersigned has actual knowledge
that the information contained in such certificate is false, the undersigned
will not deliver a Debt Warrant Note in bearer form to the person who signed
such certificate notwithstanding the delivery of such certificate to the
undersigned. The undersigned will be deemed to have actual knowledge that the
beneficial owner is a U.S. person for this purpose if the undersigned has a
United States address for the beneficial owner of the Security and does not have
documentary evidence that the beneficial owner is not a U.S. person. As used
herein, "United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction; "U.S. person" means any 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 any political subdivision thereof,
or an estate or trust the income of which is subject to United States federal
income taxation regardless of its source; "financial institution" means a branch
located outside the United States of a
<PAGE> 30
financial institution as defined in Section 1.165-12(c)(1)(v) of the Treasury
Department Regulations purchasing for its own account or for the account of a
customer that agrees in writing to comply with Section 165(j)(3)(A), (B) or (C)
of the Internal Revenue Code of 1986 and the regulations thereunder and that is
not purchasing for offer to resell or for resale in the United States; and a
"clearing organization" means an entity which is in the business of holding
obligations for member organizations and transferring obligations among such
members by credit or debit to the account of a member without the necessity of
physical delivery of the obligation.
We understand that this certificate is required in connection
with United States tax laws and regulations. We irrevocably authorize you to
produce this certificate or a copy hereof to any interested party in any
administrative or legal proceedings with respect to the matters covered by this
certificate.
(Signature)
Dated:
(Please print name)
Address:
2
<PAGE> 1
Exhibit 5.01
HOGAN & HARTSON L.L.P
COLUMBIA SQUARE
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
(202) 637-5910
November 18, 1998
Boards of Directors,
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
1120 Avenue of the Americas
New York, NY 10036
Ladies and Gentlemen:
We are acting as counsel to New Plan Excel Realty Trust, Inc., a
Maryland corporation (the "Company"), and New Plan Realty Trust, a
Massachusetts business trust (the "Trust"), in connection with the
registration statement on Form S-3 of the Company and the Trust being filed
with the U.S. Securities and Exchange Commission (the "SEC") on the date
hereof (the "Registration Statement"), relating to certain securities of the
Company and the Trust with an aggregate initial public offering price of up
to $1,000,000,000 (or the equivalent thereof in one or more, or units of two
or more, foreign currencies or composite currencies based on the exchange
rate at the time of sale). Specifically, the Registration Statement relates
to the following securities of the Company: (i) debt securities (the "Debt
Securities"); (ii) shares of preferred stock, $.01 par value per share (the
"Preferred Shares"); (iii) Preferred Shares represented by depositary
receipts (the "Depositary Shares"); (iv) shares of common stock, $.01 par
value per share (the "Common Shares"); (v) warrants to purchase Debt
Securities (the "Debt Warrants"); (vi) warrants to purchase Preferred Shares,
Depositary Shares or Common Shares (the "Equity Warrants"); and (vii) rights
to purchase Common Shares (the "Rights"). The Registration Statement also
relates to guarantees of the Debt Securities by the Trust (the "Debt
Guarantees" and, together with the Debt Securities, Preferred Shares,
Depositary Shares, Common Shares, Debt Warrants, Equity Warrants and Rights,
the "Securities").
<PAGE> 2
Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 2
Any of the Securities may be sold from time to time and on a
delayed or continuous basis, as set forth in the prospectus that forms a part
of the Registration Statement, and as to be set forth in one or more
supplements to such prospectus. This opinion letter is furnished at your
request to enable you to fulfill the requirements of Item 601(b)(5) of
Regulation S-K, 17 C.F.R. Section 229.601(b)(5), in connection with the
Registration Statement.
For purposes of this opinion letter, we have examined copies of
the following documents:
1. The Registration Statement (including the exhibits
thereto referred to below).
2. The charter of the Company, as certified by the
Department of Assessments and Taxation of the State of
Maryland (the "Department") on October 22, 1998 and by the
Assistant Secretary of the Company on the date hereof as
being complete, accurate and in effect.
3. The bylaws of the Company, as certified by the Assistant
Secretary of the Company on the date hereof as being complete,
accurate and in effect.
4. Certificate of good standing of the Company issued by the
Department, dated October 23, 1998.
5. The declaration of trust of the Trust, as certified by the
Secretary of the Commonwealth of Massachusetts (the
"Secretary of State") on October 22, 1998 and by the
Assistant Secretary of the Trust on the date hereof as
being complete, accurate and in effect.
6. Certificate of good standing of the Trust issued by the
Secretary of State, dated October 23, 1998.
7. Resolutions of the board of directors of the Company, as
certified by the Assistant Secretary of the Company on the
date hereof as having been adopted at a meeting on October
8, 1998, and as being complete, accurate and in effect,
relating to the filing of the Registration Statement and
related matters.
8. Resolutions of the board of trustees of the Trust, as
certified by the Assistant Secretary of the Trust on the
date hereof as having been adopted at a meeting on October
8, 1998, and as being
<PAGE> 3
Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 3
complete, accurate and in effect, relating to the filing of
the Registration Statement and related matters.
In our examination of these documents, we have assumed the
genuineness of all signatures, the legal capacity of natural persons, the
authenticity, accuracy and completeness of the documents and the conformity
to originals of documents submitted to us as copies (including telecopies).
For purposes of rendering the opinions set forth below, we have not, except
as specifically identified above, made any independent review or
investigation of factual or other matters, including the organization,
existence, good standing, assets, business or affairs of the Company and the
Trust. This opinion letter is provided, and all statements herein are made,
in the context of the foregoing.
For purposes of this opinion letter, we have assumed that: (i)
the issuance of any Securities of the Company will have been duly authorized
and the terms of such Securities will have been duly determined and fixed by
proper action of the board of directors of the Company or a duly authorized
committee of such board consistent with the procedures and terms described in
the Registration Statement and in accordance with the Company's charter and
bylaws and applicable Maryland corporate law, in a manner that does not
violate any law, government or court-imposed order or restriction or
agreement or instrument then binding on the Company or otherwise impair the
legal or binding nature of the obligations represented by the applicable
Company Securities; (ii) the issuance of any Debt Guarantees will have been
duly authorized and the terms of such Debt Guarantees will have been duly
determined and fixed by proper action of the board of trustees of the Trust
or a duly authorized committee of such board consistent with the procedures
and terms described in the Registration Statement and in accordance with the
Trust's declaration of trust and applicable Massachusetts law, in a manner
that does not violate any law, government or court-imposed order or
restriction or agreement or instrument then binding on the Trust or otherwise
impair the legal or binding nature of the obligations represented by such
Debt Guarantees; (iii) the Registration Statement will have been declared
effective under the Securities Act of 1933, as amended (the "Act"), and no
stop order suspending its effectiveness will have been issued and remain in
effect; (iv) any senior Debt Securities and Debt Guarantees thereof will be
issued pursuant to an indenture for senior Debt Securities and any
subordinated Debt Securities and Debt Guarantees thereof will be issued
pursuant to an indenture for subordinated Debt Securities, each substantially
in the form of such indenture filed as Exhibit 4.01 and Exhibit 4.02,
respectively, to the Registration Statement, with items shown in such exhibit
as subject to completion completed in a satisfactory manner; (v) the
indenture under which any Debt Securities and Debt
<PAGE> 4
Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 4
Guarantees are issued will have been qualified under the Trust Indenture Act of
1939, as amended; (vi) before the issuance of any Preferred Shares or Depositary
Shares, appropriate articles supplementary will have been approved by
appropriate board action and will have been accepted for record by the
Department; (vii) any Depositary Shares will be issued by a financial
institution identified as depositary in and under a deposit agreement between
the Company and the depositary in substantially the form of the deposit
agreement filed as Exhibit 4.03 to the Registration Statement, with items shown
in such exhibit as subject to completion completed in a satisfactory manner;
(viii) any Equity Warrants will be issued under one or more equity warrant
agreements between the Company and a financial institution identified therein as
warrant agent substantially in the form of the equity warrant agreement filed as
Exhibit 4.04 to the Registration Statement, with items shown in such exhibit as
subject to completion completed in a satisfactory manner; (ix) any Debt Warrants
will be issued under one or more debt warrant agreements between the Company and
a financial institution identified therein as warrant agent substantially in the
form of the debt warrant agreement filed as Exhibit 4.05 to the Registration
Statement, with items shown in such exhibit as subject to completion completed
in a satisfactory manner; (x) any Rights will be issued under one or more rights
agreements between the Company and a financial institution identified therein as
rights agent conferring legal rights on the holders of the Rights equivalent to
the legal rights of holders of common stock warrants issued under a warrant
agreement substantially in the form of the equity warrant agreement filed as
Exhibit 4.04 to the Registration Statement, with items shown in such exhibit as
subject to completion completed in a satisfactory manner; (xi) if being sold by
the issuer thereof, the Securities will be delivered against payment of valid
consideration therefor and in accordance with the terms of the action of the
board of directors of the Company or board of trustees of the Trust, as
applicable, or a duly authorized committee thereof authorizing such sale and any
applicable underwriting agreement or purchase agreement and as contemplated by
the Registration Statement; and (xii) the Company will remain a Maryland
corporation and the Trust will remain a Massachusetts business trust.
To the extent that the obligations of the Company or the Trust
with respect to the Securities may be dependent upon such matters, we assume
for purposes of this opinion that any other party under the indenture for any
Debt Securities and Debt Guarantees, under the deposit agreement for any
Depositary Shares, under the debt warrant agreement for any Debt Warrants,
under the equity warrant agreement for any Equity Warrants and under the
rights agreement for any Rights, namely, the trustee, the depositary, the
warrant agent or the rights agent, respectively, is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization; that such other party is duly qualified to engage
<PAGE> 5
Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 5
in the activities contemplated by such indenture, deposit agreement, warrant
agreement or rights agreement, as applicable; that such indenture, deposit
agreement, warrant agreement or rights agreement, as applicable, has been duly
authorized, executed and delivered by the other party and constitutes a legal,
valid and binding obligation of the other party enforceable against the other
party in accordance with its terms; that such other party is in compliance with
respect to performance of its obligations under such indenture, deposit
agreement, warrant agreement or rights agreement, as applicable, with all
applicable laws and regulations; and that such other party has the requisite
organizational and legal power and authority to perform its obligations under
such indenture, deposit agreement, warrant agreement or rights agreement, as
applicable.
This opinion letter is based as to matters of law solely on (i)
the General Corporation Law of the State of Maryland, (ii) the law of the
Commonwealth of Massachusetts applicable to Massachusetts business trusts and
(iii) New York contract law (but not including any statutes, ordinances,
administrative decisions, rules or regulations of any political subdivision
of the State of New York), and we express no opinion herein as to any other
laws, statutes, ordinances, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of
the opinion that:
1. The Debt Securities (including any Debt Securities duly issued
upon the exercise of Debt Warrants), when duly executed and
authenticated in accordance with the indenture relating thereto and
delivered on behalf of the Company, will constitute valid and binding
obligations of the Company enforceable in accordance with their terms
and entitled to the benefits of such indenture.
2. The Preferred Shares (including any Preferred Shares duly
issued upon the exercise of Warrants, or represented by Depositary
Shares), when certificates therefor have been executed and delivered on
behalf of the Company, will be validly issued, fully paid and
non-assessable.
3. The depositary receipts evidencing the Depositary Shares
(including any Depositary Shares duly issued upon the exercise of
Warrants), when duly countersigned and issued against deposit of such
shares of preferred stock in accordance with the deposit agreement
relating thereto, will entitle the holders thereof to the rights
specified in such depositary receipts and deposit agreement.
<PAGE> 6
Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 6
4. The Common Shares (including any Common Shares duly issued
upon the exchange or conversion of Debt Securities or Preferred Shares
that are exchangeable for or convertible into Common Shares or upon the
exercise of Warrants or Rights), when certificates therefor have been
executed and delivered on behalf of the Company, will be validly issued,
fully paid and non-assessable.
5. The Debt Warrants, upon due execution and delivery of a
debt warrant agreement relating thereto, when duly executed and
delivered on behalf of the Company and countersigned by the warrant
agent, will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms.
6. The Equity Warrants, upon due execution and delivery of an
equity warrant agreement relating thereto, when duly executed and
delivered on behalf of the Company and countersigned by the warrant
agent, will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms.
7. The Rights, upon due execution and delivery of a rights
agreement relating thereto, when duly executed and delivered on behalf
of the Company and countersigned by the rights agent, will constitute
valid and binding obligations of the Company, enforceable in accordance
with their terms.
8. The Debt Guarantees, when duly executed and delivered on
behalf of the Trust, will constitute valid and binding obligations of
the Trust, enforceable in accordance with their terms.
The opinions expressed in Paragraphs (1), (3), (5), (6), (7), and
(8) above with respect to the enforceability of obligations may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights (including, without limitation, the effect of statutory and
other law regarding fraudulent conveyances, fraudulent transfers and
preferential transfers) and by the exercise of judicial discretion and the
application of principles of equity, including, without limitation,
requirements of good faith, fair dealing, conscionability and materiality
(regardless of whether the Securities are considered in a proceeding in
equity or at law). Such opinions shall be understood to mean only that if
there is a default in performance of an obligation, (i) if a failure to pay
or other damage can be shown and (ii) if the defaulting party can be brought
into a court which will hear the case and apply the governing law, then,
subject to the availability of defenses
<PAGE> 7
Boards of Directors
New Plan Excel Realty Trust, Inc.
Board of Trustees,
New Plan Realty Trust
November 18, 1998
Page 7
and to the exceptions set forth in the previous sentence, the court will provide
a money damage (or perhaps injunctive or specific performance) remedy.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the delivery of this opinion letter. This opinion
letter has been prepared solely for your use in connection with the filing of
the Registration Statement on the date of this opinion letter and should not
be quoted in whole or in part or otherwise be referred to, nor filed with or
furnished to any governmental agency or other person or entity, without the
prior written consent of this firm.
We hereby consent to the filing of this opinion letter as an
exhibit to the Registration Statement and to the reference to this firm under
the caption "Legal Matters" in the prospectus constituting a part of the
Registration Statement.
In giving this consent, we do not thereby admit that we are an
"expert" within the meaning of the Act.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE> 1
Exhibit 8.01
November 18, 1998
New Plan Excel Realty Trust, Inc.
1120 Avenue of the Americas
New York, New York 10036
Gentlemen:
This opinion is delivered to you in connection with the registration of
Securities, including Debt Securities, Debt Guarantees, Preferred Stock, par
value $0.01 per share, Depositary Shares, representing Preferred Stock, Common
Stock, par value $0.01 per share, Warrants and Rights, in an aggregate principal
amount equal to $1,000,000,000, of New Plan Excel Realty Trust, Inc. (the
"Company") pursuant to the Company's Registration Statement on Form S-3 in the
form in which you have represented to us it will be filed with the Securities
and Exchange Commission on November 18, 1998.
For purposes of this opinion:
1. We have examined the Charter of the Company, as amended.
2. We have prepared and sent to the Company a memorandum setting forth
the various rules and definitions relating to the qualification of the Company
as a real estate investment trust ("REIT") within the meaning of the Internal
Revenue Code of 1986, as amended (the "Code").
3. We have relied, as to matters of fact necessary to this opinion, on
certificates and representations of officers or employees of the Company and of
PricewaterhouseCoopers LLP independent public accountants of the Company.
4. We have reviewed the information in the Company's Preliminary
Prospectus dated November 18, 1998, related to the above described offering (the
"Prospectus") under the caption "CERTAIN FEDERAL INCOME TAX CONSIDERATIONS TO
THE COMPANY OF ITS REIT ELECTION."
<PAGE> 2
New Plan Excel Realty Trust, Inc.
November 18, 1998
Page 2
5. We have made no independent investigation of the facts represented
or set forth in any of the foregoing paragraphs of this letter and are relying
for purposes hereof on said Charter, certificates, representations and advice.
Based on the foregoing, it is our opinion:
i. The information in the Prospectus under the caption
"CERTAIN FEDERAL INCOME TAX CONSIDERATIONS TO THE COMPANY OF
ITS REIT ELECTION," to the extent that it constitutes matters
of law or legal conclusions, has been reviewed by us and is
correct.
ii. The Company has all legal rights, powers and authority
necessary to qualify and has qualified as a REIT under
Sections 856 through 860 of the Code.
Norman M. Gold, a partner of this firm, is a Director of the Company.
We consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and to the use of our name wherever
appearing in such Registration Statement, including the Prospectus, and any
amendment or supplement thereto.
Very truly yours,
/S/ ALTHEIMER & GRAY
ALTHEIMER & GRAY
<PAGE> 1
EXHIBIT 12.01
CALCULATIONS OF RATIOS OF EARNINGS TO FIXED CHARGES
AND TO FIXED CHARGES AND PREFERRED SHARE DIVIDENDS
(DOLLAR AMOUNTS IN THOUSANDS)
<TABLE>
<CAPTION>
RATIOS OF EARNINGS TO FIXED CHARGES
TWO MONTHS FISCAL YEAR ENDED JULY 31,
ENDED SEPT. 30, ------------------------------------------------------------------------
1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ----
EARNINGS:
<S> <C> <C> <C> <C> <C> <C>
Net $16,937 $ 90,573 $ 77,037 $ 70,521 $ 62,716 $ 52,317
Interest expense (including 7,278 36,815 28,256 17,561 7,174 2,289
amortization of debt discount
and issuing costs)
Other adjustments 233 551 494 504 493 392
--- --- -------- -------- -------- --------
24,497 $127,939 $105,787 $ 88,586 $ 70,383 $ 54,998
------ -------- -------- -------- -------- --------
FIXED CHARGES:
Interest expense (including $7,278 $36,815 $ 28,256 $ 17,561 $ 7,174 $ 2,289
amortization of debt discount
and issuing costs)
Capitalized interest 49 12 868 203 1,161 586
--- ------- --- --- ---- --------
Preferred share dividends
Other adjustments 54 372 327 388 394 365
-- --- --- --- -------- --------
$7,381 $37,199 $ 29,451 $ 18,152 $ 8,729 $ 3,240
------ ------- -------- -------- -------- --------
RATIO OF EARNINGS TO FIXED CHARGES 3.3X 3.4X 3.6X 4.9X 8.1X 17.0X
</TABLE>
RATIOS OF EARNINGS TO FIXED CHARGES AND
PREFERRED SHARE DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
TWO MONTHS FISCAL YEAR ENDED JULY 31,
ENDED SEPT. 30, -----------------------------
1998 1998 1997
---- ---- ----
<S> <C> <C> <C>
EARNINGS:
Net $16,937 $ 90,573 $ 77,037
Interest expense (including 7,278 36,815 28,256
amortization of debt discount
and issuing costs)
Other adjustments 233 551 494
-------- -------- --------
$24,497 $127,939 $105,787
------- -------- --------
FIXED CHARGES AND PREFERRED SHARE
DIVIDENDS:
Interest expense (including $7,278 $ 36,815 $ 28,256
amortization of debt discount
and issuing costs)
Capitalized interest 49 12 868
Preferred share dividends 975 5,850 461
Other adjustments 54 372 327
------ -------- --------
$8,356 $ 43,049 $ 39, 912
------ -------- ---------
RATIO OF EARNINGS TO FIXED
CHARGES AND PREFERRED SHARE
DIVIDENDS 2.9X 3.0X 3.5X
</TABLE>
<PAGE> 1
EXHIBIT 23.01
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement on
Form S-3 of (i) our report dated March 13, 1998 on our audits of the
consolidated financial statements and financial statement schedules of Excel
Realty Trust, Inc. and Subsidiaries ("Excel") as of December 31, 1997 and 1996
and for each of the three years in the period ended December 31, 1997, which is
included in the Annual Report on Form 10-K of Excel for the year ended December
31, 1997 and (ii) our report dated September 9, 1998, except for note Q for
which the date is September 28, 1998, on our audits of the consolidated
financial statements and financial statement schedules of New Plan Realty Trust
and Subsidiaries ("New Plan") as of July 31, 1998 and 1997 and for each of the
three years in the period ended July 31, 1998, which is included in the Annual
Report on Form 10-K of New Plan for the year ended July 31, 1998. We also
consent to the reference to our firm under the caption "Experts".
/s/ PricewaterhouseCoopers LLP
-----------------------------------------
PricewaterhouseCoopers LLP
San Diego, California
November 17, 1998
<PAGE> 1
EXHIBIT 23.02
CONSENTS OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated March 5, 1998 on our audit of the Historical
Summary of Operating Revenues and Direct Operating Expenses of the properties
acquired by Excel Realty Trust, Inc. for the year ended December 31, 1997, which
is included in the Current Report on Form 8-K of Excel Realty Trust filed July
14, 1998. We also consent to the reference to our firm under the caption
"Experts".
/s/ Squire & Co.
Squire & Company, PC
San Diego, California
November 17, 1998
We consent to the incorporation by reference in this registration statement on
Form S-3 of our report dated June 12, 1998 on our audit of the Historical
Summary of Operating Revenues and Direct Operating Expenses of the properties
acquired by Excel Realty Trust, Inc. for the year ended December 31, 1997, which
is included in the Current Report on Form 8-K of Excel Realty Trust filed July
14, 1998. We also consent to the reference to our firm under the caption
"Experts".
/s/ Squire & Co.
Squire & Company, PC
San Diego, California
November 17, 1998
